I have a strong case – why should I use commercial mediation?
If you have a strong case, it will be reflected in the settlement you negotiate through mediation – perhaps the other party hasn’t yet understood the strength of your case.
Mediation means you can resolve your case rapidly, cheaper and with less disruption to your business than through protracted informal negotiation or court action. It also offers a much wider range of solutions than the financial awards generally made by the courts.
Another reason for mediating is that if you’ve been over-optimistic about your case you can find out quickly and in confidence.
Will I look weak if I suggest mediation?
Not at all. Increasing numbers of major corporations use it as their standard method of dispute resolution, partly to save time and costs but mainly because they want to retain control of the situation. Understandably, they prefer not to hand over decisions affecting their company's interests to a third party no matter how well respected the judge.
Lawyers settle cases all the time – why do I need a commercial mediator?
Although lawyers do settle disputes successfully every day, sometimes negotiations drag on over a long period or reach a stalemate. When we come on board as your mediator, with a set time to discuss the issue, this can break the deadlock.
As mediators, we’ll usually have a greater awareness of each party’s priorities and concerns than the opposing side’s lawyer. That could mean that the solution we work towards will be more attractive to both parties than lawyers alone could have devised.
This problem has been going on for ages – what are the chances of mediation working?
Although there’s no guarantee mediation will resolve an issue, it generally has a success rate of around 80%. It tends to work because:
- Both parties are more energised to find a solution as they’re working to time constraints
- Introducing a new, neutral presence changes the meeting or negotiation dynamics
- Access we as mediators have to confidential information the parties haven’t shared with each other means that we can identify more fruitful areas of discussion
How does my lawyer fit into the mediation process?
Your lawyer needn’t represent you during mediation, but in complex business disputes it is generally helpful for them or other experts to participate.
Lawyers have a deep knowledge of the dispute and its legal background, so can explore the strength of legal assertions being made by the other party and advise on the legal pros and cons of any proposals.
If a settlement is reached it becomes a binding agreement and the lawyers will be key in ensuring the terms appropriately protect their clients. Mediators do not provide legal advice.
What happens if mediation fails?
If a case doesn’t resolve, both you and your opposing party are free to pursue other means such as arbitration or litigation. You can also try another round of mediation at a later stage – perhaps when more information comes to light, or circumstances change.
Many cases that fail to settle in mediation actually settle soon afterwards. This might be because the matters in dispute have been narrowed, or that both parties have had more time to think about ideas seeded at the mediation.
Bear in mind that all information exchanged during mediation remains confidential and cannot normally be used in subsequent court or other proceedings.
Mediation doesn’t suit everyone, surely?
There are some cases where mediation isn’t the best option:
- Mediation is a private resolution process between individuals, groups or organisations who’ve agreed to participate. It doesn’t suit cases where one party hopes to have binding public statement on what the law is on a specific point. Equally, it’s not a good fit if one party wants to establish a precedent or obtain a declaration as to rights or ownership beyond recognition of rights from the parties during the mediation.
- As both parties need authority to settle the dispute, mediation isn’t usually appropriate if one of the parties is bankrupt or is operating under another form of legal constraint.
- Although mediation can be used in violent situations and we’re experienced in mediating highly charged and emotional disputes, we regret we’re unable to help in situations where physical violence is threatened.
Contact us without charge to discuss whether mediation is right for your business dispute.