Commercial mediation differs from other types of alternative dispute resolution methods in several ways, but arguably its key characteristic is that the mediator is not expected to make a final decision about the dispute. Instead, the goal of the mediator is to encourage the parties in conflict to move toward settlement. We’ve put together this guide, along with a video explainer from dispute resolution expert, Ian Carson, to help you understand the following main points about the mediation process:
What is commercial mediation?
Mediation is now a well-established method of settling business disputes, not just in England and Wales but also across the globe. The overriding objective of the courts here is to deal with your commercial dispute as justly and as proportionately as possible. Mediation is such a popular method of alternative dispute resolution (‘ADR’) because it’s a process that goes a long way toward satisfying these criteria.
The process, like other forms of alternative dispute resolution, is flexible and voluntary. Essentially, an independent person is appointed to act as a mediator in your case. He or she then works closely with you and your opponent to see if an agreement can be found to bring the dispute to an end.
An overview of the mediation process
Watch one of our dispute resolution partners, Ian Carson, explain more in the video below:
We’ve emphasised that one of the key characteristics of commercial mediation is the voluntary, flexible nature of the process. As discussed, you and your opponent will choose the mediator between yourselves and with the mediator’s help, you will decide how the mediation is to run. While there are no hard and fast rules about how mediation proceeds, it’s possible to describe the sort of framework within which most mediations will work. We describe this below:
This is where the parties, your legal representatives (if lawyers are instructed) and the mediator sit down together for the first time in the process. The mediator should describe the characteristics of mediation to you – that it’s voluntary and confidential, and that their position in the process is neutral: it’s for you and the other side to find an acceptable compromise.
Each side will then usually give their own opening statements. For anyone embarking on mediation, it’s important to give some thought to these opening remarks – they will set the tone for the whole mediation process and could have a big influence on whether the mediation ultimately succeeds or fails. Following these opening statements, the mediator will usually try, through discussion, to clarify areas of uncertainty and will hone in on potential areas of agreement.
The mediation will then move on to a series of private meetings between the mediator and each party. A good mediator will deploy various techniques to focus the parties’ minds: for example, highlighting the expense and risks of the alternative – litigation. It may also be useful at this point for the mediator to remind you of the value of maintaining a workable professional relationship, post-dispute, with the other side.
Above all, these meetings enable each party to be full and frank with the mediator about their concerns and gives you the opportunity to raise what you perceive as the strengths of your case. The mediator should – in an impartial way – “stress test” these strengths and help you to see the reality of your situation.
At some point in the process, the mediator needs to move on from exploring each side’s case and discussing theoretical settlements with you to a point of action. That is to say, you and the other side will be expected to begin making offers and considering what compromises each of you are prepared to make. The mediator’s role at this juncture is to move between the parties, relaying offers and counter-offers until an agreement is reached.
It’s essential to draft the terms of any agreement without delay – ideally when you are all still together at the mediation venue. Leaving the formal recording of the deal until later can lead to misunderstandings and in the worst-case scenario, result in the agreement itself unravelling.
If no agreement is reached at the mediation, there is nothing to prevent the parties continuing to negotiate between themselves. If the mediation was the result of a court order, the court must be informed of the breakdown of the process immediately.
When should mediation happen?
The flexibility of the mediation process and its voluntary nature mean that, if the parties agree, it can take place at any time during a dispute. If you are party to a dispute where the issues are clear, you may well find that the quickest, most cost effective way to find an agreement is to start mediation before issuing any kind of court proceedings. You may also find that you are required to attempt mediation under the terms of your contract with the other side. Additionally, mediating at an early stage is consistent with the previously mentioned principle that the courts must deal with cases justly and proportionately.
What if court proceedings have already begun?
If your case has already entered court proceedings, there are still several opportunities for you to apply for a stay in proceedings whilst mediation is attempted. For example, once disclosure of documents has taken place, you may wish to mediate because you will have a better sense of your position and that of the other side. Even at this stage, there would be the incentive of substantial costs savings with a successful mediation.
What type of business dispute is mediation suitable for?
When you are involved in a commercial dispute there are several different ADR options open to you. Whether you choose mediation or some other kind of dispute resolution method depends on:
- The nature of your dispute
- The attitude of the other party to commercial mediation
- Your desired outcome
When is mediation particularly useful?
We know that only a small fraction of commercial disputes actually end up in court. That means most are settled by other means, including by way of mediation. Mediation is particularly useful when:
- Informal face-to-face negotiations have failed, but the parties are willing to engage in a more structured approach to resolving their differences.
- Litigation costs outweigh any perceived advantage of commencing court proceedings when the value of the dispute is taken into account.
- An independent third party could remove some of the heat that exists between you and the other party.
- Commercial imperatives dictate the need for a quick solution.
- You have an ongoing business relationship to protect.
When is mediation less useful?
Mediation may be less useful in cases where:
- There is a technical legal point at issue that may require the input of a specialist court.
- The dispute has led to a situation of such urgency that some form of emergency relief like an injunction is needed.
- It’s obvious from the parties’ standpoints that mediation won’t succeed, and to engage in it would only add unnecessary legal costs and cause delay.
- There is a criminal element to the dispute.
Does a mediator evaluate the strengths of each side’s case?
Traditionally, the mediator didn’t make decisions or look at the strengths of each side’s case. The role of the mediator was very much that of an enabler – in other words, facilitating the parties in trying to find areas of agreement. That said, there is evidence that the role of the mediator in some cases is evolving into a more evaluative position where you can request that they decide at least some of the merits of the case.
How does mediation typically arise?
Mediation can arise in a number of ways:
- By agreement between the parties.
- When the courts recommend it.
- If the contract provides for mediation.
- In cases where you and the other party have signed a mediation pledge. It’s worth pointing out that regulators and industry bodies in many sectors encourage members to commit to mediation in the event of a dispute. A good example of this is the Swiss-based World Intellectual Property Organization Mediation Pledge for IP and Technology Disputes sectors.
Is the mediation process guaranteed to work?
Unfortunately, there are no guarantees that the mediation process will always work. It may lead to consensus in some areas and narrow the issues in your dispute but fail overall, effectively acting as a precursor to litigation or some other form of ADR.
It’s important, therefore, to ensure that your contractual provisions and any mediation agreements that you may have in place make it clear that mediation proceedings are to be confidential, and that the associated details can’t be used in any future litigation (that is, mediations are held on a ‘without prejudice’ basis). We will take a look at mediation and privacy in more detail below.
Does the mediator have to be a lawyer?
Mediators don’t have to be lawyers, but commercial mediators do tend to be drawn from the legal profession – experienced solicitors or barristers who have undergone specialist training in commercial dispute mediation. It’s up to you and your opponent to agree upon the individual you wish to appoint as a mediator.
What role does the mediator play in commercial dispute mediation?
Once selected, the mediator must go about creating an environment conducive to negotiation – one where you and the other party understand that each must be prepared to listen to the other’s case. The mediator must also ensure the process he or she manages is one that treats both sides equally and fairly.
Because the mediator is not expected to reach a decision, their role is chiefly that of a neutral go-between – facilitating agreement where possible and ensuring that, once an agreement is reached (if it is), you fully understand the terms and a formal record of those agreed terms is drawn up.
Is the mediation process private?
One of the main attractions of commercial mediation as a way to resolve your dispute is the fact that it is a private process. Privacy in mediation is reflected in a number of ways:
- Confidentiality is key – in terms of information disclosed by each side to each other, and by each side to the mediator during the process. The obligation to keep information confidential extends not just to you and the other side, but also to the mediator – you should be aware here that courts will only depart from this principle in exceptional circumstances.
- Mediation statements are ‘without prejudice’ – Communications will normally be made on a without prejudice basis. Effectively, this means offers of settlement or admissions made by either side are made on an “off the record” basis, and you can’t refer to them in any court proceedings that may follow on from an unsuccessful mediation. However, just because something comes up in mediation it doesn’t automatically exclude the possibility that you can use it in subsequent litigation: if information that would have to be disclosed anyway under court rules is disclosed in mediation, it may still be used in court.
- Lawyer-client privilege – Generally, communications during mediation between you and your solicitor (and likewise for the other side) that’s concerned with legal advice is privileged, which means that neither party can disclose it. We’ve written in detail about legal professional privilege in a separate article – it’s a complex legal concept, and one where the rules have recently changed.
For the sake of clarity, matters such as defining confidentiality, the without prejudice nature of statements made in mediation and the extent of legal privilege should all be covered in your mediation agreement. Usually, the mediator will also stress the private nature of the process to you at the outset. This helps create a sense of security in the process and encourages disclosure of information that might otherwise be withheld – information that might ultimately lead to a resolution.
Advantages and disadvantages of mediation
The use of mediation to resolve general commercial and contract disputes is now a well-established method of ADR. Research carried out by the Centre for Effective Dispute Resolution (CEDR) shows that, while direct negotiation is by far the most common way that commercial disputes are resolved, mediation is preferred by a significant number of businesses.
A report produced by CEDR bears out the fact that commercial mediation has drawbacks as well as advantages. We list these in the table below, so that you have a handy reference point for considering the positives and downsides if you are contemplating using mediation to settle your dispute:
|It takes informal negotiations a step further by assembling all the parties and focusing minds.||There’s no need to appoint a mediator and start the process if informal negotiations between the parties would result in an acceptable settlement.|
|The mediator comes to the table without any prior involvement in the dispute. The presence of a neutral third party can remove some of the heat from the dispute and lay the groundwork for successful settlement discussions.||If one side is unreasonable and does not genuinely want to reach an agreement, then it follows that mediation is unlikely to succeed.|
|Nothing is imposed. The mediator is not there to make a ruling like a judge. Instead, the mediator’s function is to facilitate agreement.||Mediation won’t be appropriate if the dispute has led to some type of emergency and an injunction or other form of relief is needed.|
|Commercial mediation is voluntarily entered into. One side can pull out at any time if they don’t want to settle.||The mediator has more limited powers to direct proceedings than a judge. For example, he or she can’t force the disclosure of certain documents unless the parties agree.|
|As we’ve discussed, proceedings are confidential. This can prevent publication of commercially sensitive information.||Parties sometimes fear revealing too much about their position during mediation. They may regret doing so if the matter ends up in court.|
|The parties can be creative about the solutions they reach. Offers of settlement can include matters that were not part of the original dispute. According to the CEDR report mentioned above, this is the most valuable characteristic of mediation as far as businesses are concerned.||It’s sometimes hard to convince one party to a dispute to engage in mediation. The CEDR report mentioned already indicates that this is the main factor that puts businesses off mediation.|
|The private, voluntary nature of the process can sometimes foster goodwill and help maintain existing commercial relationships.|
|The mediator has a unique insight into each side’s position and what it will take for them to settle. This knowledge can be used to push mediation forward if a settlement is in sight.|
|Mediation works. The proportion of disputes referred to mediation that result in agreement is consistently high.|
What is the cost of mediation services?
One of the attractions of this method of ADR in commercial matters is that it potentially offers huge costs savings when compared to litigation and some other forms of ADR. Commercial mediation costs are comprised of the following:
- The mediator’s fees
- Mediation costs (including venue hire)
- The costs of each side’s legal advisors
In the majority of cases, you should be aware that it is common for the parties to agree to split the mediator’s costs and expenses (such as venue hire) evenly, and for each side to bear their own legal costs. On occasion and depending on the circumstances, you might consider making an offer to pay the other side’s costs as an inducement to encourage them to enter mediation in the first place. In other cases, parties will agree that if mediation fails and litigation follows, the court can award the costs of mediation to the successful side.