We have updated our guide providing you with an overview of mediation in the context of commercial disputes. Mediation is a common method of alternative dispute resolution (‘ADR’). It is a consensual process, with any settlement having to be agreed by both parties. If successful, mediation can save the time and costs of fighting a dispute through the courts or in arbitration.
What is mediation?
Mediation is a private dispute resolution process in which a neutral person – the mediator – helps parties to a dispute to try to reach a negotiated settlement. The parties will attend the mediation in an effort to settle their differences. The mediator, trained in negotiation techniques, will try to help the parties find some middle ground and an acceptable compromise of their dispute. As a private process, those taking part can avoid publicity, unlike in court proceedings.
Mediation is not new, and it’s a very popular means of resolving disputes. Its use is actively encouraged by the courts. One of the main characteristics of mediation is its flexibility. Parties to a dispute can agree to mediate when and where they want, can appoint whom they want as mediator and can agree any form of solution they like.
Here at Lewis Silkin we have an outstanding team of lawyers specialising in all aspects of commercial disputes, with vast practical experience of modern litigation and ADR. A number of our team are CEDR accredited mediators. We are now using our expertise to offer ADR services bespoke to these unprecedented times. In particular, we can ensure that parties who are facing early-stage contentious issues receive appropriate help, such as:
- Mediation - see above.
- Settlement Facilitation Assistance - a service designed to enable parties to communicate directly regarding commercial solutions with the benefit of an independent person who will facilitate a constructive dialogue and seek to prevent an escalation of areas of disagreement.
- Early Neutral Evaluations - a non-binding form of alternative dispute resolution. In this process the parties appoint an independent and impartial evaluator to give an assessment or “evaluation” of the merits of their respective cases. This evaluation may then be used as the basis for settlement negotiations, making the process of resolving the issue more efficient and cost-effective.
The prospect of mandatory mediation does appear to be on the horizon. In July 2021, the Civil Justice Council published its report on compulsory ADR. The report concluded that the introduction of further compulsory elements of ADR, including mediation, to promote the resolution of civil disputes would be lawful and “potentially an extremely positive development”.