Mediation for commercial disputes
Sometimes the most effective way to resolve a dispute is to use mediation. It involves a third party helping to bring a settlement to a dispute without resorting to expensive litigation. It can have a number of advantages:
- it is effective, independent research suggests that it is often successful
- it may be cheaper
- it usually saves time
- it is flexible
- it is confidential, unlike a trial, mediation takes place in private
- it is encouraged by the courts
The parties to a dispute can agree to appoint a mediator to help them reach a settlement either before court proceedings have started or after. If litigation has already begun, the court is empowered to put the case on hold to give the parties a chance to settle their differences by mediation.
Each party can put forward the name of one or more mediators whom they would be prepared to see appointed. The mediator must be acceptable to both parties and, if the parties cannot agree, the court can be asked to make the appointment. Once appointed, the mediator and the parties arrange a time and place for the mediation, which generally lasts no more than one day. About a fortnight before the mediation each party submits a brief written summary of its case, supported by copies of key documents.
On the appointed day the mediator usually meets the parties in 2 separate rooms. He then invites them to join him/her in a third room where each in turn outlines its case. Sometimes the mediator asks the parties to clarify certain points. More often than not they then return to their separate rooms with the mediator shuttling between and encouraging them to reach a settlement. It is up to each party how much information or documentation it discloses.
Sometimes one party will say something to the mediator that it does not want the mediator to pass on. The mediator always respects such requests for confidentiality. The role of the mediator is to encourage a settlement and not to try to impose one.
If the parties do reach a settlement, only then does it become binding on them. Occasionally mediation does not result in an agreement being reached. The parties are then free to proceed with the litigation and neither party is allowed to refer to anything that has been said by its opponent during the mediation.
For more information about mediation, please call us on 01483 887766