Commercial mediation is a process which offers the opportunity to resolve a commercial dispute without the high costs and lengthy delays of going to court. It is usually conducted by a trained neutral third party (a mediator) who will hold meetings with all the main parties involved in the dispute and help them explore options and find solutions which can work for everyone.
Commercial disputes are common in business. They can include contracts, property disputes (including landlord and tenant issues), professional negligence claims, intellectual property disputes, insurance claims and disputes with government departments. The main reasons why companies decide to mediate a dispute are to save time and money, to preserve business relationships and to reach a solution which is acceptable to both parties.
The advantages of commercial mediation are that it is much quicker than going to court, it is cheaper than taking legal action and it is confidential. It also gives the parties a greater degree of control over proceedings, allowing them to set their own agendas and priorities and to choose their own settlement terms.
It is not uncommon for a negotiated settlement to be reached during the course of a mediation, which means that litigation can often be avoided altogether. This is especially useful if the parties are unable to come up with an agreed solution on their own.
Mediation is not a substitute for obtaining legal advice and you are strongly advised to have your own lawyer with you when attending a mediation. Your lawyer will be able to give you guidance as to whether the dispute is suitable for mediation and help you prepare for it. They can also assist you in drawing up a draft agreement for you to take away and discuss with the other side.
During the course of a mediation, the mediator will meet with the parties together and in private and encourage them to explore all their options. The aim is to get the parties to a point where they can agree on an outcome which works for them, so that they can go away and put it into place.
The process is designed to address power imbalances and encourage the parties to examine their positions, priorities and underlying interests. It can also be useful for creating fresh perspectives and a helicopter view of the issue in order to overcome deadlocks, for example by using brainstorming techniques. Having seen a particular dispute type several times, mediators can develop an understanding of party reactions and bottom lines, try out different approaches and make suggestions to help parties move forward. This is particularly helpful if the same disputes are coming up regularly.