The following is an extract from the ‘Mediation Advocacy Skills’ section of my forthcoming book, the 2nd ed Contentious Probate Handbook, for the Law Society:

‘Conclusion.

Mediation is a game. The essential skills of Mediation Advocacy, i.e. ‘rules of the game’, are:

(i)     Follow the Mediator (M’s) ‘cues’: acknowledge the existence of litigation risk and be prepared to explore the existence of an alternative i.e. ‘third-way’ to litigation, by entering into a constructive exploration of the existence of common-ground, which first requires M to enquire about your lay client’s wishes, needs, priorities, and reasons.

(ii)    Be ready to not only negotiate, but also to structure and document the terms of a deal – which may be complex. You must be ready and willing to work side by side with the other Mediation Advocate(s) (‘MA’s’) without their lay clients (‘P’s’) being present, in order to isolate constraints and work out solutions, that they can sell to their lay client(s), and vice-versa. This requires the establishment of a ‘working relationship’ between the Mediation Advocates, through M, whereby in each other’s eyes, the MA’s are not rival competitors, but partners, working together to find a way of dealing with their lay clients’ ‘differences’, by seeing these differences as a common ‘challenge’. So, the MA’s must work with M to bring about this paradigm shift in thinking.

(iii)    This requires the development by each P of a ‘settlement range’ (‘SA’) ahead of the Mediation Day. The extent to which each P’s SA overlaps with the SA of the other P/P’s = common ground (‘CG’). In a Trust/Estate dispute CG may be capable of expansion before division and distribution – see Chapter 8, below.

(iv)  Thus, before the Mediation Day each MA must have a candid discussion with their lay client i.e. P, about how much is ‘enough’, i.e. about what is the ‘price of doing a deal?’ That conversation should be prefaced by reminding their lay client about what they advised during their very first conference, i.e. that litigation always involves an unquantifiable amount of litigation risk for all parties involved – so, at what point ‘is the candle no longer worth the flame?’ Then each P can make an informed and calibrated commercial decision about when ‘to deal’ and ‘when to walk away from the table’, before they engage as a ‘player’, in the ‘Mediation Game.’