Commercial Mediation
Nobody plans to have a dispute. So, when it happens it happens suddenly. Unexpectedly. And you have to find the most effective way to resolve it… What do you do?
In this section you will find:
- What kind of dispute is suitable for mediation?
- Different ways you can deal with a dispute
- The Mediation Process
- Are there any risks?
- Why Mediation?
- Fees
What kind of dispute is suitable for mediation?
- you have suffered loss as a result of breach of contract.
- your business partner or fellow director wants out.
- your supplier/customer/client/contractor is refusing to pay you or supply you.
- you have employees, senior managers or directors in dispute.
There are many other relevant situations. And they don’t have to involve large amounts of money. There is often a matrimonial element to a Commercial dispute, for example if a husband and wife have a business in common (see Family Mediation).
Different ways you can deal with a dispute
You can deal with a dispute in several ways.
You can:
- negotiate
- arbitrate
- litigate
- capitulate!
- or MEDIATE
MEDIATION allows YOU to be directly involved in the solution and it is the most cost-effective process in achieving settlement. The BENEFITS are emotional, financial and commercial.
The Mediation Process
Broadly:
- each party and/or their advisers prepare case summaries for the mediator.
- a date and venue for mediation is agreed.
- at the mediation meeting each party has an opportunity to state their case, without interruption.
- adversarial confrontation is replaced by principled negotiation.
- the prime objective is to find a workable agreement.
- an agreed time allocation will be set or left open-ended.
- discussion at, and outcome of, the mediation remains entirely within the parties control.
- when resolution is reached, the mediator will work with the parties to produce a written agreement which, once signed, becomes binding.
The mediation is entirely private, confidential and avoids unwelcome publicity.
Are there any risks?
NO!
- either party can withdraw at any stage.
- settlement cannot be imposed by the mediator.
- each party can reveal only the information they want to.
- discussions are entirely without prejudice and cannot be used in any subsequent litigation.
You have a choice….
LITIGATION: legal process, adversarial, uncertain and expensive
or
MEDIATION: common sense, reality, collaborative and cost-effective.
It’s your choice.
Why Mediation?
Who says you should not only consider but engage in a mediation process?
“… where there is a satisfactory alternative to resolving disputes in court, the court should encourage the use of this alternative.”
Lord Woolf
“… a mediator might have been able to provide solutions which were beyond the power of lawyers and the court.”
Lord Brooke
“There may be uncomfortable cost consequences for parties, or their advisers, if mediation (ADR) is not seriously considered…”
Dunnett v Railtrack
“Every lawyer should routinely discuss with client whether the dispute is suitable for mediation (ADR).”
Dyson L J
“The courts are clearly far from ideal places in which the terms of a broken relationship should be negotiated. It is possible, surely, to imagine a mediation service that would be generally regarded as the first resort, with the courts a distant last.”
Independent On Sunday, editorial
“Mediation as a tool for dispute resolution is not designed to achieve solutions which reflect the precise legal rights and obligations of the parties. Rather the solutions which are mutually commercially acceptable at the time of the mediation.”
Lord Brooke
“It would be foolish to claim that mediation guarantees an agreed settlement – but it has an incredibly high success rate which cannot be ignored and encourages everyone to try it.”
W G Cardno, Charter Mediation
Fees
Commercial Mediation fees are charged in accordance with the following scale (the scale being for guidance only since the number of parties, the amount of the claim and complexity may affect level of fees; travel and travel time, along with any cost relating to hire of suitable venue, will be charged as disbursements).
| Value of claim | fee per party: - up to 4 hours |
| £5,000 or less | £200 then £95/hour |
| £5,000 - £15,000 | £300 then £110/hour |
| £15,000 - £50,000 | £400 then £120/hour |
| £50,000 - £100,000 | £500 then £140/hour |
| £100,000 + | negotiable |
Note: all fees include 2 hours preparation time, any further preparation time will be charged at £95 per hour. There are occasions when a case has no clear monetary value e.g. employee-employee dispute. In such cases a fee will be agreed according to the complexity of the dispute. As a guide, allow for a minimum of 3 hours to resolve and document – issues are rarely as simple as they might seem. On the other hand, mediations seldom take more than a day. We suggest that disputes for lower amounts might take up to 6 hours and more complex cases might take as much as 10 hours or more.