An increasing number of legal disputes are being settled through mediation rather than lengthy and costly court battles.
Given the increase in using mediation as the alternative, we have set out our top tips to consider when entering mediation in a commercial dispute.
First, you need to consider whether your commercial dispute is suitable for mediation.
It’s important to emphasise that mediation is a consensual process and requires both parties to agree to participate in the mediation process. If you want to persuade your opponent to enter into mediation, it may be worth pointing out that 74% of mediations settled on the day of the mediation with a further 15% settling shortly after the mediation itself*.
This should hopefully demonstrate to your opponent that mediation is worthwhile and is likely to result in the dispute settling – costing you both less time and money.
*Source – Eighth Centre of Effective Dispute Resolution (“CEDR”) Mediation Audit (2018)
Instructing The Right Mediator
There are several organisations such as CEDR, In Place of Strife, Clerks Room that have many accredited Mediators across the full range of disputes that they can put you in contact with.
While the Mediator having knowledge of the subject matter in dispute can be helpful, it’s not essential. In some situations, it may be helpful to have a Mediator with no knowledge of the subject matter so they can approach the matter with “fresh eyes”.
Understand your case (including the costs position)
As well as understanding the strengths of your case it is equally important to know and understand the weaknesses. Are there any arguments that you can put forward to counter the weaknesses in your case?
The Mediator may ask you what your BATNA position is. This stands for Best Alternative To Negotiated Agreement. In other words, what will you do if you cannot reach a settlement at the mediation?
Connected to this will be the issue of costs if you have instructed professionals to help you. What is your current level of professional costs? What will be the level of your professional costs if the dispute proceeds?
Where will the mediation be held? Are the parties geographically some distance apart? If so, the location should be easily accessible to all parties. The venue should have rooms for each party and the Mediator. Ideally, the parties’ rooms will not be next to one another (due to the risk of being overheard!). Finally, at least one of the rooms should be big enough to accommodate all of the representatives of each party plus the Mediator should there be any full sessions with everyone present.
In terms of travel to the venue, make sure you have sufficient time to travel to and from the venue. If the venue is some distance from where you live, is it worthwhile staying at a hotel? This is particularly relevant as most mediations can be extremely long days (see below) and therefore booking a hotel room for the night before (and even the night of the mediation) may be worthwhile.
Is someone making sure there is sufficient food and refreshments for the parties’ representatives? Do any of the representatives have any particular dietary requirements?
Clearly Present Your Case
A lot of Mediators will ask that the parties exchange summaries of their case and their arguments. At most mediations, there will be an initial opening session where each party will be able to present its case to the other. This links to point 3 above – presenting your case in the strongest way possible while minimising and countering any suggestions of weakness in your case.
Remember, you are not trying to persuade the Mediator of the strength of your case, but instead you are trying to persuade the other side that you are in the stronger position.
Mediations can be long and drawn out – sometimes going on past midnight! There are also times within the mediation where the Mediator may be with the other party and there will be considerable periods of downtime. You’ll need to bring as much patience to the mediation as possible!
As with any commercial dispute, the key is to get professional, specialist legal advice as soon as the issue occurs.
Posted on March 11, 2020