Pre-mediation refers to the meetings between the mediator and parties’ counsel before the scheduled mediation. The meetings are done separately over the phone or via video conference. Sometimes, mediators meet counsel in person. Regardless of the mode of meeting, any information disclosed is confidential and without prejudice.
What Happens During a Pre-mediation?
1. Clarifying the Issues
A key goal of the pre-mediation meeting is for the mediator to better understand the issues in dispute. The mediator would also ask to be updated on any developments on the dispute since case statements were provided. In particular, he would be interested to learn of the negotiation history, past offers, and why they were rejected. Counsel would be further invited to confide to the mediator what the client’s priorities and motivations are for the mediation.
2. Identifying Tripwires
The pre-mediation meeting allows counsel to highlight the hot button issues and tripwires for their client. When the mediator is aware of what is provocative to the client, he can steer the joint discussions away from unnecessary acrimony. Knowing how the conflict may have arisen from structural, data, or value-based conflicts enables the mediator to better design the mediation process and questions he may wish to ask.
3. Checking Attendance and Process Design
Attendees to a mediation have a significant influence on the design of the mediation process and set up. If one side feels a need for more time to get psychologically ready for a joint meeting, the mediation may start with private sessions. If the mediation involves attendees with physical restrictions, the mediator can ensure there is wheelchair access or hearing aid. At the pre-mediation, the mediator can also ascertain if the attendees have ample authority to broaden the zone of possible agreement.
4. Building Trust
The pre-mediation offers an opportunity for counsel to coordinate their strategy to bring closure to the dispute for the client. By openly sharing his approach, the mediator can inspire confidence and emphasise the advantages of collaboration. When counsel learns of the mediator’s strategy, he can help the mediator refine his approach for the client and also help his client better prepare for the mediation.
In Conclusion
Pre-mediations last on average just 15 minutes. This short chat is a quintessential part of international mediation practice. When there are multiple parties and complex technical and legal issues, use of pre-mediations has markedly increase settlement rates. It is, in our view, an essential part of the mediation process and is why Sage Mediation has made the conduct of pre-mediations a central part of our mediator training and practice.
