Assume that the mediation is going to be successful and that your dispute will be resolved. It is a common mistake for a party to enter the process half-heartedly, thinking it unlikely to succeed. Surveys of outcomes have reported success rates as high as 85%: you have to make sure that it is resolved on your terms. If you do not know what you want to achieve from mediation then you will be at a disadvantage against an opponent who does.
Set down your minimum terms for settlement. If you depart from them in negotiation (as you probably will) then you will have a benchmark against which to judge your position.
Mediation agreements usually allow for a single exchange of statements of case, with accompanying documents sent to the mediator shortly before the mediation meeting. When drafting your statement of case, address it to the other side – this is very different from making your case before a judge or adjudicator. You need to persuade the other side that they are at fault and that they are going to lose. That means shaking their confidence, ideally by revealing facts or arguments that they have not previously considered.
It is important to prepare estimates of how much it will cost to pursue the dispute if the mediation fails. The mediator will regard your irrecoverable future costs as available to sweeten a settlement.
The mediation meeting
There is no set procedure for mediation, but what follows is usual. A day or two is set aside for the mediation meeting, which opens with each party's advocate giving a short summary of its position. You may prefer to let the other side go first and to deal with the points they raise in reply. If they produce something unexpected, ask for time to consider it before replying. As with the statement of case, you should try to arm yourself with a new fact or argument.
After the openings, the parties usually retire to separate rooms and the mediator commences shuttle diplomacy, seeking consensus and exposing to each party the weaknesses in its case. Your team may have little to do while the mediator is with the other side, so keep them busy by preparing position papers undermining the other side's points. Suggest open sessions with the mediator on these.
Stamina is essential. There is commonly a rapid convergence of positions in the last few hours of the meeting. After what may have been months of preparation and days of meeting, it is at this point that you need to be firmest and clearest about what you want. Settlements often happen after the meeting itself has broken up, so be prepared for it to dissolve without a resolution, particularly if a compromise on your minimum terms is close. Be very wary about documenting a settlement at the meeting. You should have drafted an agreement before it, but if terms have moved significantly away from that then it is usually better to draft the agreement when you have reflected on all its consequences.
How will you know if you've won?
Even if you have won, you will still feel that you have given away more than you wanted to give away. However, the other side left something on the table, too. But most of all, you will know it because the dispute is over and you can get on with your job.
Christopher Hill is managing partner of solicitor Norton Rose's construction and engineering group.