Civil and Commercial Mediation is a voluntary, confidential process in which a neutral third party helps those involved in a civil or a commercial dispute to communicate, negotiate and reach their own resolution to their disagreement.
In a typical dispute between two parties, the mediation takes place in three rooms. These can be online rooms, using software such as Zoom, or actual rooms at an agreed venue. Each party has their own private room and the third larger room is for joint meetings where the parties can meet face to face to discuss the dispute, share information and negotiate a settlement.
The aim of the mediation is to create an environment where the parties feel able to suggest ideas for settlement and to negotiate freely without fearing that things they say or disclose will be brought up later in court and used against them. To create this mediation ‘bubble’, each party signs the Mediation Agreement which sets out the terms of the mediation. The agreement confirms that the process is voluntary, confidential and ‘without prejudice’ meaning that anything said or written cannot be used, referred to or relied on later in, for example, litigation. Everyone attending the mediation will sign the confidentiality agreement.
The mediator is neutral in the dispute. He does not give advice to the parties. He does not say who he thinks is right and wrong and he does not give a judgment on the issues. The mediator is there to facilitate the settlement of the dispute. The mediator will have confidential discussions with each party in their private rooms. He will help each party to examine the strengths and weaknesses of their and their opponent’s cases, playing devil’s advocate to help the parties formulate options for settling the dispute. The mediator may hold joint meetings between the parties and their legal representatives or just for the legal representatives, all the time looking for ways to keep the parties moving towards a settlement. The mediator will shuttle back and forth between the parties’ private rooms and help the parties settle the terms of agreement.
If the parties record their agreement in writing and sign it, it is binding like any other contract. If court proceedings are already under way, the parties can sign a court order known as a ‘consent order’ or a ‘Tomlin order’ which sets out the terms of their agreement.
Mediation can take place at any time in a dispute, on day one or on the day before court. To decide when is the right time to mediate, parties weigh up the risk and likelihood of winning or losing their case and the cost of taking their case further. The earlier in a dispute that parties decide to mediate, the less costly it will be but there may be less detailed information to rely on (no witness statements, valuations etc). If parties decide to wait for more detailed information before mediating, there is a high cost to obtaining that information and it may not be as helpful as they initially hoped. Timing is something that parties need to consider carefully and discuss with their advisors.
It is important that you have the necessary information and people to help you make decisions about your dispute. When the mediation is taking place online, it works best to have as few people in attendance as possible. When you are attending a face to face mediation, it is usually fine to have someone there to support you. Each side needs to be aware who is attending the mediation and be comfortable with them being present. Everyone in attendance will sign the confidentiality agreement at the start of the day.