What is Commercial Mediation?
Commercial mediation is a flexible, voluntary and confidential form of alternative dispute resolution. A neutral third party mediator assists parties to work towards a negotiated settlement of their dispute. The overriding purpose is to reach an early lasting settlement, avoiding the time, cost and general disruption that tends to be caused in conventional court proceedings. During the mediation the parties retain control of the decision made, whether or not to settle and on what terms. Unlike a judge or arbitrator, the mediator will not decide the case or the outcome, but will work to facilitate agreement and discussion between the parties. It is the parties who decide what happens and the parties opinions which matter, not the mediators. The role of the Mediator is not to make any determination of conflicting evidence or of legal principles, but is purely facilitative to put in place a structure to help the parties work towards a settlement.
The Commercial Mediation process is confidential and "without prejudice". This means that what is said or written cannot be used in later proceedings if the mediation does not settle. The confidentiality of the process can avoid embarrassing precedents being set, as might happen in court proceedings.
The parties themselves attend the mediation, except in unusual circumstances. The parties can be accompanied by their legal representatives. In the case of a party that is a company or other association, its representative will need to have authority to reach a binding settlement at the mediation.
Commercial mediation provides a private setting whereby parties can gain a better understanding of each other's positions and work together to explore options for resolution. During the mediation, the mediator meets privately with each party to discuss the problem confidentially. This allows each party to be open, honest and frank with the mediator and have a realistic look at their case in private. This discussion behind closed doors removes the fear that any weaknesses discussed will be communicated to other parties. Confidentiality is maintained throughout, which means that the dissemination of any commercially sensitive material (including the terms of settlement itself) can be controlled. The Mediator is responsible for setting the process during the mediation. This is designed to encourage the parties to examine the wider range of issues beyond pure legal arguments, to prioritise between the issues and to create solutions that are workable. This process helps to gain a helicopter view of the issues and help reach a resolution. The Mediator can help to change the dynamics and overcome deadlock for instance through discussion and brainstorming of options.
Commercial mediation can be used in almost any kind of case, for example, commercial contract, computer/IT, professional negligence, property disputes, construction, consumer/fair trading, insurance, personal injury, planning (and other disputes with government departments) and inheritance/probate disputes.
