What is commercial mediation?
Mediation is a form of alternative dispute resolution. The neutral mediator manages a structured negotiation process to help the two sides reach an out-of-court settlement to their dispute. It is voluntary and confidential. It is generally faster and less expensive than going to court.
What is the difference between arbitration and mediation?
Arbitration is like having a private judge. The arbitrator considers the matter and makes a ruling which is binding on the parties. The parties agree in advance to be bound by the arbitrator’s ruling.
Mediation does not impose a solution on the parties. A mediator manages a structured negotiation process to help the two sides reach a settlement voluntarily.
The advantage of arbitration over going to court (“litigation”) is that the proceedings can be kept private, and can sometimes be concluded more quickly than using the court service. It is usually just as expensive, or even more expensive, than litigation, though.
Mediation is usually much less expensive than both arbitration and litigation. The two sides do not need to do as much preparation work as they do for arbitration and litigation. For litigation and arbitration, you have just one opportunity to present your case. You will need witness statements and expert evidence prepared. You will need to explore every possible legal argument. You will need to prepare responses to everything the other side throws at you.
In mediation, you still need to be well prepared for the day, but you do not need to do quite as much preparation as you would for a one-shot, no-second-chances event like an arbitration or trial. So your legal costs will be a lot lower, as your legal team will not have to spend as much time preparing your case as they would for a trial or an arbitration.
Can I bring my lawyer / accountant / friend to the mediation?
Yes, absolutely, but each side needs to agree on who is attending. A mediation can be quickly derailed if one side brings along an advisor or supporter whom the other side is not expecting. It is definitely helpful for each party to have someone else with them. This will usually be their legal advisor, but if a party is not represented by a legal advisor I would still encourage them to have someone else with them to use as a sounding board. Just be sure to let me know who you intend to have with you, so that I can check that there are no objections from the other side.
Do I have to bring a lawyer to the mediation?
No, you don't have to bring a lawyer. Usually, both sides will have lawyers with them at the mediation to provide legal advice, but this is not always necessary. However, if you do not bring a legal advisor, then it is important to put some thought into how you are going to document your agreement if you do reach a settlement. I can act as scribe, to help you write up what you have agreed, but I can’t offer you any legal advice on the drafting of it. The outcome of a mediation is often very straightforward though, and can be documented with a few sentences of everyday English.
Can you give me legal advice?
No, you will need to consult your own legal advisor to obtain legal advice about your dispute.
Can I rely on you to get us a good deal?
I will communicate your points to the other side, and I will challenge and explore their position, but I won’t tell them that they should, or should not, accept any particular offer. I work as a neutral mediator, working with both sides to help them find a settlement, if there is one to be found.
Will you make sure that the case settles?
I help the two sides find a settlement, if there is one to be found. But I can’t make you (or the other side) settle if you (or they) think the settlement that on offer is not worth accepting. Each time there is an offer on the table, each side needs to consider if it is better to take that offer, or to continue the dispute. I help each side carefully explore the pros and cons of any particular offer, but I can’t advise either side about whether it is a “good deal” or not. The only people in the room who really know if the offer on the table is a good deal are the parties to the dispute, helped by their legal representatives.
Is the outcome of mediation binding?
Nothing is binding until the parties reach an agreement which they intend to be binding. Usually this will be a written agreement signed by all parties at the end of the mediation, there and then, before everyone leaves. If legal proceedings have already started, then the settlement will usually take the form of a Tomlin Order or a consent order, drawn up by the two sets of lawyers and signed before the mediation finishes. If neither side has lawyers present to draft a formal agreement, then the two sides will usually draft their own wording to record what they have agreed in everyday English, and perhaps have this formalised with legal advice later if necessary.
Can you draft our agreement for us at the end of the mediation?
Drafting the settlement agreement is likely to involve providing legal advice, so I cannot draft it for you. At most mediations, the parties have their lawyers present with them and the lawyers will draw up a binding agreement at the end of the mediation and have it signed there and then, before the mediation session ends. If there are no lawyers present, the two sides will usually draft their own wording to record what has been agreed, and may formalise this with legal advice later if necessary.
Do we have to have a joint opening session?
The “standard” procedure at a mediation is to start off with everyone in the same room, and for each side to have the uninterrupted opportunity to state their position. Not everyone wants to do this though, and I don’t insist on it. Some mediators do insist on this, and even go so far as to consider that the process is not a “proper mediation” without a joint opening session. I leave it up to the parties - if both parties want to have a joint opening session, then that’s what we’ll do. If either party doesn’t want the joint opening session, then we will go straight to me shuttling between the two private rooms.
Do you organise the venue?
Firstly, bear in mind that most mediations are done online, using Zoom. However, if you prefer to meet in-person (and many people do), then we ideally need three rooms: one for each party, and another room large enough to accommodate everyone. It it possible to just have two private rooms, and bring everyone into one room when needed, as long as at least one room is large enough to accommodate everyone. This can create tension though: if one party has a large conference room as their base, and the other party has a cramped meeting room, this can create ill-feeling. If you bring everyone into what has been a private meeting room, the side which had been using that room as their private space will need to take care to ensure their private notes are not on display, and so on.
Can you send me your CV?
Download my CV here: Bruce Greig CV.pdf
If you would like a no obligation chat about your dispute, drop me an email or give me a call: firstname.lastname@example.org | 07515 116800 | 01962 435075