Commercial mediation is a flexible, voluntary and confidential form of alternative dispute resolution in which a neutral third party assists parties to work towards a negotiated settlement of their dispute. The parties retain control of the decision whether or not to settle and on what terms. Unlike a judge or arbitrator, the mediator will not decide the case on its merits, but will work to facilitate agreement between the parties. It is the parties’ opinions, not the mediators, which matter.
The mediation generally involves one meeting with the other party and the process is confidential and “without prejudice”. This means that what is said or written cannot be used in later proceedings if the mediation does not settle. The confidentiality of the process can avoid embarrassing precedents being set, as might happen in court proceedings.
Except in unusual circumstances, the parties themselves should attend the mediation. They are usually accompanied by their lawyers. In the case of a party that is a company or other association, its representative will need to have authority to reach a binding settlement at the mediation.
Commercial mediation provides a private forum in which the parties can gain a better understanding of each other’s positions and work together to explore options for resolution. During the mediation, the mediator meets privately with each party to discuss the problem confidentially. This allows each party to be frank with the mediator and have a realistic look at their case in private, without fear that any weaknesses discussed will be communicated to other parties.
The parties may agree that the written mediation agreement itself is confidential.
Commercial mediation can be used in almost any kind of case, for example, commercial contract, computer/IT, professional negligence, property disputes, construction, consumer/fair trading, insurance, personal injury, planning (and other disputes with government departments) and inheritance/probate disputes.
At Barlow Robbins we have considerable experience in handling mediations whether for our clients or by provision of a mediator.