Once retained, Anthony will determine, with the assistance of the parties, where necessary, what is required to prepare the dispute for mediation and he will provide the parties with appropriate directions in that regard.
Those directions will include a timetable for the preparation of an agreed mediation bundle of documents and for the exchange of a mediation summary of the parties’ interests.
Preliminary Conference:
- A preliminary conference is often useful to discuss preparatory activities and attend to organisational matters. A preliminary conference may also assist in assessing the parameters of the dispute, delineating the issues that will be addressed at the mediation and discussing the best manner of preparing for mediation. A preliminary conference can be convened at a time and venue to suit the legal representatives of the parties.
Agreed Bundle of Documents:
- The parties should be aware that in preparation for the mediation, Anthony will read thoroughly all documents that are provided to him with a view to determining the real issues in dispute and the manner in which a settlement may best be achieved or structured having regard to the competing commercial, personal, reputational, emotional and other interests.
- Accordingly, parties are requested to provide documents touching upon or concerning the real issues in dispute and which may be relevant to a party’s interests. Typically, those documents will, in the case of disputes which are the subject of court proceedings, include the latest pleadings and the evidence relied upon by each of the parties (affidavits, experts’ reports and business records). In the case of disputes that are not the subject of court proceedings, typical papers to be placed in the bundle will include all documents evidencing the relationship between the parties and any correspondence, including emails and the like, which identifies the nature and ambit of the dispute.
Mediation Summary of Parties’ Interests (Position Papers):
- The parties will be encouraged to exchange and provide to the mediator a summary of their respective interests.
- The papers should provide a brief outline of the background to the dispute including the relationship between the parties, a summary of the factual and legal issues and a party’s understanding of the opposing party’s position on each issue, identify any issues that are agreed or are not in serious dispute, and highlights key documents. The papers should also provide details of all reasonable attempts made by either party to resolve or narrow the issues including, without limitation, any offers of compromise served under the Rules of Court or otherwise.
- Wherever possible, the parties should focus on matters which could provide a common platform for a negotiated outcome.
Professional Advice:
- The parties should ensure that they obtain any tax-related, accounting or any other professional advice that may be relevant to any proposed settlement before the mediation.
Authority to Settle:
- It is critical that a person who has full authority to settle the dispute and to sign any necessary documentation to give effect to any settlement be in attendance at the mediation.
Draft Settlement Documents
- The parties should liaise and agree as to which of them shall carry primary responsibility for the preparation of a draft document(s) (for example, a deed, agreement, short minutes of order and the like) to be made available at the mediation and which can be used as a template to record any resolution reached.