Civil and Commercial Mediation
Mediation is the process by which parties seek to settle their civil or commercial disputes with the assistance of an independent third party, known as a mediator.
‘Commercial mediation’ and “civil mediation are interchangeable and include the resolution of business disputes as well as those relating to property, inheritance, contract and non-matrimonial co-ownership.
Mediation is voluntary
No-one can force you to attend a mediation. This means both parties must want to mediate or be prepared to give it a try. Hopefully, both you and your opponent, have made yourselves aware of the benefits of mediation and a mediated settlement. Where this is the case, a refusal to mediate is uncommon. However, mediation is not compulsory.
A warning to anyone refusing to engage in mediation: If you are involved in court proceedings and are deemed to have unreasonably refused to mediate, the court is likely to penalise you financially (by way of costs), whether you win or lose.
Civil and commercial mediation is confidential
This keeps your business private. All parties agree not to talk about what goes on during the mediation to the outside world (unless part of your settlement says otherwise).
Confidentiality also plays an important role on the day of mediation itself. If the parties are split in different rooms, as is likely at some point in the day, anything you say to the mediator will not be taken into the other room, unless you specifically instruct the mediator to do so. This principle is at the foundation of the mediation process and why it proves successful on so many occasions.
What happens before the day?
For most disputes, preparation for mediation is pretty simple. It is best to mediate as soon as possible. Once a date and a venue have been agreed, the parties will be asked to supply the mediator with
- the most important documents relating to the dispute
- a summary of what they believe the case is about
- how they think the case should settle.
In cases involving companies or partnerships, it is also very important to have the people who have the authority to “make the deal” present on the day.
What happens on the day?
The mediation process belongs to you. The parties have a large say as to how the day goes. Sometimes the day starts with a joint session. This can be helpful to iron out any misunderstandings or just to let people get things off their chest. Sometimes, tensions are so high that a joint session should not be entertained. Thereafter, the parties may be housed in separate rooms and the mediator will shuttle between the two until a solution is reached.
There may be times when it seems as though we are getting nowhere fast. Don't worry. Your mediator will have seen many such moments in the past and still have reached a settlement for the parties. Keep your mind on the task at hand – your mediator will do everything possible to find a settlement for you.
If and when a settlement is reached, the terms are set down in writing and signed by the parties. The agreement is binding. If court proceedings have already commenced, the agreement will take the form of an order that will then be lodged with the court.
Of course, sometimes settlement is not achieved. That is the right of anyone attending mediation. However, the process is “without prejudice”; nothing said while trying to reach an agreement during mediation can be used in court. Many disputes that aren’t settled on the day are settled shortly after or at least before trial.
Find out more
Watch our video 'An introduction to Mediation', with CMC registered Norwich mediator Mark Fitch:
In this video, Mark covers the background to mediation:
Plus, here are 'Ten Reasons to Mediate':
Read more: Mythbusters Guide to Mediation
Please contact one of the team to discuss your specific requirements.
As a mediator, clients have said, “Mr Fitch was retained as a Mediator in a very awkward dispute between potential beneficiaries of an Estate. Notwithstanding the very emotional nature of the mediation from both parties and the high principles at stake, Mr Fitch handled the mediation with total professionalism using exactly the right approach on each and every occasion he met with the parties and their representatives to broker a final resolution of the matter. I would have no hesitation in recommending Mr Fitch as a mediator."
‘Mark Fitch at Hatch Brenner LLP is ‘an excellent mediator who quickly understands the obvious points of conflict and aims to find common ground to settle as soon as possible‘.’