advised on the reality of litigating their matter in court, including the pros and cons. Solicitors should ensure that the best interest of the parties are taken care of and not conduct a case for their own benefit. What are your top tips for preparing a client for mediation? a) Clients should be open-minded, nonjudgemental and ready to present their case and to listen to the opposing party’s case; b) The client should understand that they need not win at the expense of the other side, since mediation is a collaborative effort by parties in reaching a settlement; c) A mediation process is voluntary and parties are able to control the outcome, as opposed to litigation; d)Mediators are not judges but are merely there to assist parties to find a common ground to settle their case; Poor preparation prior to mediating or failure of the decision-makers to attend mediation will cause mediation to fail. It would be advisable for parties to ensure that prior to mediating, thorough preparation is done and that decisionmakers should be compelled to attend the mediation process. If they are unable to attend, parties should reschedule the mediation. Another factor that may cause mediation to fail is when the mediation process is abused – when parties attend but refuse to cooperate, or when parties fish for information while only intending to litigate. Prior to mediation, solicitors and mediators should communicate with the parties and advise them to act bona fide. However, if parties refuse to cooperate or have the intention to act mala fide, then mediation should not be encouraged. There may also be instances where parties would be discouraged to mediate because their lawyers generally tend towards overconfidence in their case. Some parties prefer to tell their story to a Judge because they have a romanticised view of court, believing they will win a huge settlement. Parties should be 86 LAWYERMONTHLY SEPTEMBER 2022 Parties should enter the mediation process with the idea that the case can be settled.
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