Part 2 of a series on mediation, by a Cypriot lawyer
A mediation has three kinds of people in it, and each of them arrives with a different worry. The parties want to know what they will be asked to do. Their lawyers, many of whom have spent their careers preparing for trials, are not always sure what their job is in a room where nobody gives a judgment. And the mediator has to hold the whole thing together without taking sides.
This article and the next walk through a typical mediation day, from preparation to signature, and at each stage look at what it asks of each of them. I have sat in these rooms as a registered mediator and as a lawyer and drawing a balance between the two can be challenging. This part covers the preparation and the opening session; Part 3 covers the rest of the day.
The 2012 Law (159(I)/2012) leaves a great deal to the parties and the mediator. They can agree how the process runs, how long it lasts and how the mediator is paid. So treat what follows as a common shape, not a fixed procedure.
Before the day
For the parties.
You choose the mediator together with the other side, so you have a real say in who will run the day. You will also sign an agreement to mediate, which covers the mediator’s identity and fees, confidentiality and the logistics. Read it properly. Then think honestly about one question before you arrive: what would you accept, and what happens if you accept nothing and go to trial? You don’t have to tell anyone the answer, but you should know it.
The person who attends must be able to settle. If you are a company, that means sending someone with genuine authority, not someone who has to “check with the board”. In my experience, the absence of a real decision-maker, someone who can sign the mediation agreement at the end of the day, can be the very reason a mediation fails. Once you step out of the mediation room to seek approval, the people who actually make the decisions may reject the deal that was reached. I will discuss this further in the next instalment of this series.
For the lawyers.
Your preparation is different from trial preparation. The position paper should be short and persuasive, written for a mediator who has a day to understand the dispute, not a judge who has months. Choose the handful of documents that matter. Most importantly, prepare your client: explain the format, the waiting, and the fact that their own opening words may matter more than yours. Work out the realistic range of outcomes at trial, costs included, and talk it through with the client before the day, not in a side room at four in the afternoon.
For the mediator.
Registered mediators in Cyprus must meet the training and continuing education requirements of the Law, and are expected to be neutral, impartial and to keep the process confidential.
Read the papers, but don’t over-prepare a theory of the case. Many mediators speak to each side by phone beforehand to understand who will attend, what the sensitivities are and whether a joint opening session will help or hurt. Confirm that the right people, with authority, are coming.
It is a good practice on the pre-mediation call to ensure that all you know all the facts of the case. What you are looking to avoid is one party ambushing the other, on the day by coming up with new documents, claims or grievances.
Morning: the opening session
The day often starts with everyone together. The mediator sets the ground rules: what is said is confidential, nobody is bound by anything until they sign, either party may leave at any time, and the mediator will not decide anything.
For the parties. If you are asked to speak, speak to the other side, not to the mediator. Say what this dispute has cost you and what you need, briefly and without insults. For many people, this is the first time in months or even years that the other side has actually listened to them without a lawyer’s letter in between, and it can change the tone of the whole day.
For the lawyers. Resist the temptation to deliver a trial opening. An aggressive summary of why the other side will lose rarely moves anyone, and it can harden positions that were starting to soften. Short, firm and respectful is usually more effective. Sometimes the best thing a lawyer does in the opening session is let the client talk.
For the mediator. Decide whether a joint opening session is a good idea at all. Where emotions are raw or there is a power imbalance, it may be better to go straight to separate rooms. If the parties do meet, your job is to make it safe enough for them to be honest and to keep it from turning into a rehearsal of the pleadings.
Next time
Once the opening session ends, the parties usually go to separate rooms, and that is where most of the real negotiation happens. In Part 3, I will follow the rest of the day: the private sessions, the late-afternoon impasse, and what to do when a deal is finally reached or isn’t.
This article is general information, not legal advice. Consult a qualified lawyer about your specific circumstances.
