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Civil & Commercial

Civil and commercial disputes come in all shapes and sizes. The great virtue of mediation is its flexibility and the opportunity it presents to resolve disputes much more quickly and cheaply than by litigation or arbitration. A mediator will be able to apply appropriate mediation techniques depending on the nature of the dispute and the wishes of the parties.
Mediation is done by agreement and no solution is imposed by a judge or arbitrator. Mediation is voluntary, non-binding, confidential and without prejudice. The range of options available to the parties to achieve resolution is wider than is available from the courts or arbitration where, generally, the result is "all or nothing".
In the modern litigation environment, "winning" does not by any means result in the so-called "successful" party making any substantial profit. Because of the new approach of the courts to cost management, a successful litigant can often find that, even though he has won, he does not recover anything like the full amount of his legal costs. Indeed, in more extreme cases, a so-called "successful" litigant can be ordered to pay costs towards the losing party!

 

The procedure

Generally, it will be as follows. The agreed mediator (or mediators) will contact the parties before the mediation appointment to explain the process and respond to any questions that they may have. On the mediation day there will be an agreed bundle of documents and, usually, each party will have supplied to the mediator a note setting out the central points of its position regarding the dispute. If it wishes, a party may supply its paper to the mediator on the basis that it is not disclosed to the other side. The whole process is "without prejudice".
There is usually an introductory joint meeting in which all parties participate at which the mediator will explain the process to the parties and remind them that the whole process is strictly confidential and without prejudice. Having heard the parties - who are not obliged to say anything if they do not wish to - the mediator will then meet the parties privately to hear what they have to say about the matter. Of crucial importance is the fact that the mediator will not betray any confidences given to him by either of the parties in private session. If he thinks it appropriate, the mediator may suggest that the senior personnel of the parties in dispute may sit together privately together with him, in the absence of lawyers, to see if a discussion between them may enable progress to settlement to be made. Similarly, he may suggest that the lawyers alone should meet with the mediator to discuss the matter.
Apologies or expressions of regret may be offered. Solutions can be found in cases where the parties start the process in positions of intransigence and deeply held animosity towards the opponents. All this in one day, or even less! Usually, by the end of the procedure, an agreement will be reached, reduced to writing and signed by the parties. Once a settlement agreement is signed, it is binding on the parties and, subject to implementation of the agreed terms, the matter is brought to a conclusion, the lawyers can close their files (to the relief of their clients) and the disputing parties can turn their attention to more profitable and enjoyable matters.

 

Get in touch

It is hard to imagine any good reason why a party in a dispute, or facing a possible dispute, would not wish to consider mediation. Mediation Chambers recommends that you speak, privately and without obligation, to one of its experienced mediators so that they can explain to you the procedures and costs, and help you form an educated opinion as to whether mediation is suitable for you.