Mediation preparation: The Mediation Bundle

What’s a mediation bundle?

Lawyers know the answer but the word confuses non-lawyers. All it means is the file of documents that mediators are sent to read before the mediation. But even lawyers can forget that a mediation bundle is not the same as a court bundle.

Do you have to have one?

No it is not essential but it is usual. Partly this is a hangover from litigation procedure where trial bundles are prepared for the judge. Sending the mediator information in advance can save mediators time gathering information and reading documents for the first time at the mediation.

A warning: not all mediators think that it is worth reading the documents in advance. And they don’t. They prefer to listen to the parties telling them in their own words on the day what the dispute is about.

TOP TIP: find out from the mediator what they want. Don’t try and guess. Ask them. Ask them if they do want to read the documents in advance. If they do how long before the mediation they would like to receive them.

What do you include in the bundle?

Mediators complain that mediation bundles are too big and they are too late.

The golden rule is: less is more. Keep the documents to a minimum. Otherwise time and effort is wasted reading peripheral material, and core documents are submerged in the mass of irrelevant ones.

Preparing a bundle takes time and money. Neither are usually available in unlimited supply. Copying a bundle that has been already been prepared for an application to court or CMC (Case Management Conference) can be quicker and cheaper. Court bundles will contain material that is useful for judges but not so useful for mediators such as previous court orders, application notices with supporting evidence, correspondence between the parties and/or their solicitors.

TOP TIP: check with the mediator whether or not they charge for reading the documents. Some mediators charge by the hour. Others include a stated number of hours preparation within their mediation fee. Others are less specific and say ‘reasonable preparation’ is included. Much better to set a budget in advance. This avoids difficult conversations with the mediator later. You and your clients want to get on with the mediator during the mediation and uncomfortable discussions about fees are not the best way to start.

So include:

• The pleadings if legal proceedings have started. Make sure that you include the latest versions if there have been amendments. Omit the earlier versions. Unless there is some key point contained in the pre-action correspondence you can leave it out.

• Documents referred to in the pleadings. After all they should have been served with them.

• If proceedings have not been started, any correspondence setting out the claims and responses. Highlight the really important letters. Pre-action correspondence can be repetitive.

• The core documents. What these are will depend on the nature of the dispute. In a contractual dispute include the contract documents. In a dispute about the joint ownership of property include copies of the Land Registry entries, transfers, trust deeds etc.

• Financial information. Most meditations include discussion about finances. Include details of loans and payments and receipts. Bank statements are often required. Calculations of how much equity there is in a property require redemption statements. If ability to pay is an issue include proof of income and assets.

• Valuations: in any dispute involving property these are essential and also in shareholder and partnership disputes.

• Evidence of loss. Management and statutory accounts.

• Expert reports. Be clear whether they are draft or not. Or whether they are to be exchanged.

• Plans and photographs. Make extra copies and make sure that they are big enough everybody to read. Do not assume that there will be photocopying facilities at the mediation venue.

How to prepare a bundle?

Work out what you want to include. Make a list or index of them and send it to the other side. Ask them if there are any additional documents that they want to include.

Don’t waste time and energy arguing about the contents of the mediation bundle. You don’t have to prepare an agreed bundle as you do for court.

It is convenient if everybody is looking at the same bundle of documents at the mediation. But it is not fatal if they are not. As many mediators will tell you they are surprised at how often the mediation bundle isn’t even opened on the day. Usually only a handful of documents are referred to.

TOP TIP Prepare the bundle at the same time as you draft your position paper or mediation statement. Usually the bundle is prepared in advance and sent to the mediator without the position paper which is drafted later and emailed two or three days before the mediation. Preparing them together will show you what documents you need to include to back up the points that in your position paper.

Remember the position paper is both for the mediator and for the decision-maker on the other side. Do not assume that the decision-maker on the other side will know all the background to the dispute. Often the decision-maker, who has been sent to sort out the problem, is not the same person who was involved in the circumstances giving rise to the dispute.

Confidential or not?

The mediation process is both confidential and without prejudice. You will not waive any legal privilege or confidentiality by including a document in the mediation bundle. But remember that if a document is disclosable in litigation in the ordinary way it will not attract privilege simply because it was prepared for or included in the mediation bundle.

If you want the mediator to read confidential documents and not to disclose their contents to the other side make sure that you mark the documents “for the mediator’s eyes only”.

For more guidance on preparing mediation bundles and position papers see Chapter 15 in my book Mediation Advocacy: Representing Clients In Mediation  2nd edition (Bloomsbury 2018)

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