Why Preparation Is the Foundation of a Good Outcome

Mediation is voluntary and confidential, and the outcome belongs to the parties. But that does not mean the parties arrive and simply see what happens. The parties who achieve the best outcomes in mediation are almost always the parties who have prepared most thoroughly. They know what they want. They know what they are willing to accept. They have thought carefully about the other party’s position and about what the other party actually needs, as distinct from what they have said they want. And they have a clear sense of what their realistic alternatives are if the mediation does not produce an agreement.

Preparation is also about emotional readiness. Mediation involves sitting in a room, often for several hours, with someone you are in conflict with, being asked to engage honestly and openly with difficult issues. That is not easy, particularly where feelings of hurt, anger or injustice are strong. Parties who have thought through how they will manage their own emotional responses in the session are significantly better placed than those who have not.

This chapter covers preparation for both workplace mediation and employment mediation, noting where the preparation differs between the two types.

Clarify What You Actually Want

The most fundamental preparation task is to be clear with yourself about what you actually want from this process. That sounds simple, but in practice many people arrive at mediation with a confused or contradictory set of objectives, which makes it very difficult to make good decisions in the room.

It is helpful to distinguish between your position, what you have said you want, and your interests, the underlying needs and concerns that your position is designed to address. These are often different things. A party who says they want a formal apology may actually need to feel that their experience has been heard and acknowledged. A party who says they want to return to their previous role may actually need reassurance that the behaviour that drove them out will not continue. Understanding your own interests, rather than just your stated position, is essential preparation for any mediation.

It is also important to distinguish between what you want ideally, what you would accept, and what you will not accept under any circumstances. Having a clear sense of your bottom line, the minimum that would constitute an acceptable outcome, before you go into the mediation is critical. Without it, you are vulnerable to making concessions in the heat of the moment that you will later regret.

Understand the Other Party’s Position

One of the most valuable things you can do in preparation for mediation is to think carefully about the other party’s perspective. Not in order to agree with it, but in order to understand it. What does the other party actually want from this process? What are their underlying interests? What are they most concerned about? What would a good outcome look like from their point of view?

This kind of perspective-taking is important because it helps you identify areas of potential common ground that might not be obvious from your own position. It also helps you anticipate the arguments the other party is likely to make in the session and to think through how you will respond to them.

Assess Your Alternatives to a Negotiated Agreement

In any negotiation, including mediation, your bargaining power is determined largely by how attractive your alternatives are if no agreement is reached. The concept of the Best Alternative to a Negotiated Agreement, often referred to as BATNA, is one of the most important tools in negotiation preparation.

Before the mediation, you should be clear about what will happen if the mediation does not produce an agreement. If you are in workplace mediation and no agreement is reached, what happens next? Does the formal grievance procedure resume? Does the working relationship simply continue unchanged? If you are in employment mediation and no agreement is reached, does the tribunal claim proceed to a hearing? What are the realistic prospects of success at that hearing, and what are the likely costs?

Assessing your alternatives honestly, rather than optimistically, is essential preparation. Parties who overestimate the strength of their alternatives frequently walk away from settlements that were in their interest, only to achieve worse outcomes through the formal process. This analysis is covered further in Chapter 9 on negotiation.

Preparing Documents and Materials

In workplace mediation, formal documentation is usually kept to a minimum. Some mediators will ask each party to prepare a short written summary of their perspective on the dispute and what they are hoping to achieve, which the mediator reads in advance. This is not an opportunity to produce a legal brief or to argue your case in writing. It is an opportunity to help the mediator understand the context and the key issues before the session begins.

In employment mediation, particularly where tribunal claims are in play, there will usually be more documentation. The parties may exchange position statements. There may be relevant correspondence, a grievance outcome letter, an investigation report or tribunal pleadings that form part of the background to the dispute. The mediator will typically review this material in advance. You should ensure that your legal adviser, if you have one, has reviewed all relevant documentation before the mediation and that you understand the key points.

Your Position on the Day

Authority to settle

In employment mediation in particular, it is critical that whoever attends on behalf of the employer has genuine authority to agree a settlement on the day. One of the most common reasons mediation fails is that the person present on behalf of the employer does not have the authority to agree the terms that are needed to settle, and has to refer back to someone else who is not in the room. This is a significant practical obstacle and should be addressed explicitly in advance.

Who attends

In workplace mediation, the parties typically attend without legal representatives, though some mediators allow advisers to be present in a supporting rather than an advocacy role. In employment mediation, particularly where a tribunal claim is in play, legal representation is more common. The question of who attends should be discussed and agreed in advance.

Emotional preparation

Mediation can be an emotionally demanding process. It is worth thinking in advance about how you will manage strong emotions if they arise, how you will respond if the other party says something that you find hurtful or untrue, and whether you have the right support around you. Some mediators offer a preliminary individual meeting with each party before the main session, which provides an opportunity to raise concerns and to understand the process before being in the room with the other party. This pre-mediation conversation is explored further in Chapter 8.

The 25 tips for workplace mediation and 25 tips for employment mediation in Chapters 15a and 15b distil the most important preparation and in-session guidance into a checklist format that is easy to review in the days before a mediation.

Important Disclaimer: This page is provided for general information purposes only and does not constitute legal advice. Nothing on this page should be relied upon in respect of your legal rights or obligations. Before taking or refraining from taking any action in connection with a workplace or employment dispute, you should obtain advice from a qualified solicitor or barrister with relevant expertise. If you would like advice on your specific situation, contact Robin here.