Civil and Commercial Mediation covers a very broad spectrum of disputes between business and/or individuals. This can range from breach of a commercial contract between two businesses to a boundary dispute between neighbours. It would also cover disputes based on negligence.
Commercial mediation is often a more formal process with legal representatives and the use of the shuttle mediation style. This type of mediation would normally take place over one day and can be arranged very quickly if all parties are available.
The normal steps in the process would include:
- parties decide to mediate and choose a mediator, date and venue
- the mediator will send out a draft agreement to cover the mediation process and invite the parties to agree a bundle of documents to be sent to the mediator
- as well as the bundle parties can send the mediator confidential information that they do not want the other party to see
- The mediator will read the papers and speak to both side before the day
- the parties sometimes exchange ‘position statements’ setting out their positions on the claim
- On the day, after saying hello, there is normally an joint opening meeting where both sides can put their positions to the other – this sometimes leads to a helpful discussion about any outstanding matters.
- Usually after the opening the parties will go to seperate rooms and the mediator will shuttle between them. The mediator will explore with both sides the strengths and weaknesses of the cases and more importantly what is important to each side for any deal and possible ways that a settlement may be reached
- The process is flexible and can involve further joint meetings either of everyone or say just the lawyers or clients with the mediator.
- Often the mediator will take offers from one party to the other
- Hopefully a settlement will be reached on the day and a binding agreement signed recording that settlement.
The process is normally confidential (by means of the Mediation Agreement ) and when the mediator is with each party what they are told is confidential and will not be repeated to the other side unless permission is given. This is to encourage the parties to be open and honest with the mediator about what is really important and the possible deals that could be done.
The process is also ‘without prejudice’ to any court proceeding on the matter. That allows a participant to give way on a point in order to explore a potential settlement but if a settlement is not reached the judge will not know that the concession was made in the mediation and the party can still argue the point.