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If you have a business relationship, contract or negotiation that has become problematic, perhaps even emotionally charged, and you are finding it difficult to make any progress, then mediation may be a good option for you. All parties to the dispute need to voluntarily agree to try mediation, but a key benefit of mediation is that it allows a neutral third party to help facilitate the discussions whilst the parties retain control on what is ultimately agreed and the terms of any negotiated agreement. Mediation is also beneficial when the parties desire or need an ongoing business relationship.
It is preferable that the parties have legal advice either at the mediation or available by telephone, particularly in matters where the dispute centres more on legal rather than commercial issues. However, it is not always possible for parties to be represented and a mediation can proceed with one, or all, of the parties not being legally represented.
If you already have legal representation, your lawyer can approach the other party and suggest mediation as an option. If you are not represented, you can directly approach the other party or parties in the dispute. If the parties agree to mediate, then a mediator is jointly selected. This can be done by one party providing three mediators for the other party to choose from, or an organisation such as CEDR can provide a short list or simply choose a mediator for the parties.
The timeframe of a mediation depends on the availability of the parties, the mediator and other attendees, along with the complexity of the dispute and the amount of preparation required by all the participants. A reasonable timeframe is up to 6 weeks from the date of instruction of the mediator until the day of the mediation. However, this can be shorter for smaller disputes or those where negotiations are already quite advanced. The mediation process is significantly quicker than litigation or arbitration.
The attendees of the mediation for each party will be agreed in the initial call with the mediator. Ideally, it will be the same number from both sides, but this is not always the case. The attendees for each party normally include: the decision maker, who has the authority to sign the Settlement Agreement; other members of the party involved in the dispute; the party's lawyer; and, if the dispute is complex, any expert in the subject matter of the issues such as a forensic accountant or surveyor.
If the mediation is a one or two hour session, then this will usually be carried out virtually. For longer mediations, the location will be agreed by the mediator in the initial call with each party. This could be at a neutral location, such as the meeting rooms of a local hotel or CEDR's London office or, more commonly now, at the offices of one of the legal representatives which allows the costs of the mediation to be reduced. If the mediation is in person, each party will have a private room and there will also be a room where the mediator can bring the parties together for joint meetings.
Over 70% of commercial mediations are settled on the day of the mediation. If a negotiated settlement is not reached on the day, the mediator will discuss with the parties whether the mediation should remain open for an agreed period. This allows the parties, and their legal representatives, to reflect on the progress made during the day and consider if anything further can be done to get to an agreement. The mediator will remain involved and check in with both parties. A further 20% of mediations typically settle in this period. It is also possible to have a partial agreement on some of the issues in dispute and / or an agreement to return to mediation at a later date. In the small number of cases where agreement is not possible, then the mediator will suggest that the current mediation is formally closed and the parties pursue alternative routes to resolve the dispute. As set out in the Mediation Agreement, all information shared and discussions remain confidential.
Nothing is agreed at the mediation until it is written down in the Settlement Agreement which all the parties sign. This agreement can be enforced like any other commercial contract and will include an explanation of the process to resolve any future disputes in respect of the agreement However, part of the mediator's role is to try and help the parties agree a workable settlement that all of the parties can realistically uphold.
The cost will generally depend on the amount of time required to prepare for and attend the mediation. This is normally driven by the complexity of the dispute, number of issues, number of parties and monetary value. The parties normally split the cost of the mediator and mediation expenses but pay their own associated costs such as legal advice. For further information on my charges, please see Fees or contact me at kevin@kevinhardingmediation.com to discuss your specific situation.
A Civil dispute is a non-criminal disagreement between private individuals or between a private individual and an organisation, such as a personal injury or property dispute. A Commercial dispute relates to a disagreement between two or more parties regarding a commercial transaction, such as breach of contract, shareholder disagreement, or intellectual property issue, and typically involves businesses.