A Mediation is a meeting, usually lasting half a day or a day, attended by the parties and by their barristers, and conducted by a professional mediator whose fees are shared between the parties.
A mediator, unlike a judge or arbitrator, does not have the power to impose a settlement - there can be no binding settlement unless both parties agree terms - but the role of the mediator is to see if it is possible, by discussions with the parties - mostly separately initially - to bring the parties to agreement on a settlement.
Although a mediator is not a judge it is, nevertheless, usual to prepare a "bundle" in much the same way as a trial bundle would be prepared for a trial before a judge. In a Bundle every page has a page number and there is an index at the front - really a table of contents - listing every document and its page number. Sufficient identical copies are produced for everyone at the mediation.
Typically a mediation bundle will be arranged in the following sections:
The Index at the front will list every document in the Trial Bundle, giving the date of the document, a brief description, and the page number. The purpose of the Index is, of course, to enable everyone to quickly find a document they are looking for, but, because the index is large, it is also important that the documents are arranged in the bundle in logical order so that the index (which, of course, lists them in the the same order) is easy to use - i.e. it should be possible to guess roughly where a document is likely to appear in the index so that, in most instances, it is not necessary to search all the way though a long index.
Case Summary The first section contains documents which summarise and explain what the case is about and the main contentions of the parties. In order to save costs, it is usual, rather than drafting a Case Summary specially for the mediation, to use documents which have already been produced. It may be that there has already been one hearing before a court/tribunal and that a Case Summary used for that hearing can be used. Other documents which may be useful in summarising what the case is about can be included such as a List of Issues or Chronology or a pre-action Letter of Claim and response, or skeleton arguments produced for a previous hearing.
Pleadings - otherwise known as "statements of case". These are the documents which were drafted by each party's barrister at the outset which set out, in summary and often in a technical legal manner, what each party alleges.
Costs Documents The legal costs incurred so far, and the likely future legal costs, are important considerations at a mediation. Detailed costs documents such as invoices are not needed in a mediation bundle, but documents(for both sides) which summarise costs, such as costs budgets and statements of costs incurred and estimated for the future should be included.
Offers Often there will have been unsuccessful attempts to settle in the past and offer letters and responses can be included. Unlike in the case of a trial bundle - which must not include without prejudice offers as the judge must not see these before judgment - at a mediation past without prejudice communications can be included as everything which happens in a mediation is on a without prejudice basis.
Evidence Although it is not the role of the mediator to act as a judge, some indication of the key evidence which each party relies on can be useful in the mediation process, so the documentary evidence which would ordinarily be included in a Trial Bundle, would be included, together with those expert reports (if any) which both parties have already seen and witness statements (if the mediation is being held after exchange of witness statements).
If the documentary evidence is voluminous there is generally no need to include it all but equally there is no point in having a dispute between the parties as to what to include. Anything which a party wants included should be included. The mediator will not read everything as a matter of course but anything which either party might want to refer to, and point out, should be included.
Inadmissible evidence Some documents (e.g. without prejudice communications) are not admissible as evidence before a court or tribunal but there is no reason why they cannot be included in a mediation bundle if either party regards them as important.
If possible the Bundle should be agreed with the other side so that there is only a singe bundle (multiple copies of course - one for everyone - but all copies of an identical single bundle) but this is not essential and each side could provide its own bundle (but, of course, with sufficient copies for everyone else who will be at the mediation).
Use CaseLines to create the bundle in PDF form. Production of the indexed and paginated trial bundle in PDF Form is automatic and you just tap the Bundle Index button and the button for each section to download PDFs containing the index (which will go at the front) and each section of the bundle.
1. Open and print the bundle PDF files. Print the Index PDF single-sided. Print the section PDFs double-sided if you have a printer which can print double-sided. If there are any colour documents (e.g. photos or colour-coded plans) in the bundle, you must use a colour printer. Be careful to print A3 (and larger) pages with the correct paper size and either fold them or use a larger binder for them.
2. When you have printed out the bundle pages, hole punch them and file them in one or more lever arch file/ring binders, depending on how many pages there are.
3. The very first page of the bundle PDF may be simply a title page giving the name and number of the case, with the first page of the Index actually starting on the second page of the PDF. This title page is intended to be stuck on the outside of the front cover of the lever arch file/ring binder. The first page inside should be the first page of the Index (which is actually the second page of the PDF) so that the index can be seen immediately on opening the file without having to turn over a page which merely contains the title of the case.
4. Repeat steps 1 to 3 above to produce several identical copies of the bundle.
The above explanation of what is commonly included in mediation bundles is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what might be appropriate in your own situation. So please do not rely on the above but contact me or another adviser for advice.
This page was lasted updated in February 2017. Disclaimer