Commercial Mediation Solicitors

A commercial dispute can be frustrating and costly, and cause damage to reputations and business relationships unless the parties can resolve their dispute amicably without the need for legal proceedings. Mediation is a form of alternative dispute resolution (ADR) available to parties who are involved in a legal dispute, and it can take place at any stage before a final hearing.

JMW can help you prepare for mediation and advise you on how you might wish to approach the negotiations with the other side before the day of the mediation. We can advise you on when mediation may be a suitable approach and represent you during the process. This means many commercial disputes we are instructed in are resolved before they reach trial and, in certain cases, settlement can be achieved before a claim is even started. 

To find out more about our commercial mediation services, contact us today by calling 0345 872 6666, or fill in our online enquiry form to request a call back.

How JMW Can Help

JMW is committed to delivering mediation services to resolve disputes effectively and with a commercial focus. Our team of skilled commercial mediation solicitors has conducted a significant number of mediations and can support you with the following:

• Advice and guidance on whether mediation is appropriate for your needs
• Help to find a recommended and experienced commercial mediator (with specialist knowledge of the relevant practice area, where required)
• The logistics of arranging the mediation and preparing the necessary mediation bundle and associated documents
• Guidance on your strategy and options for settlement
• Identifying the strengths and weaknesses in your and your opponent’s respective positions
• Attending mediation with you and providing support and advice
• Taking the necessary steps to formalise any settlement agreement and, where legal proceedings are underway, a consent order to bring those proceedings to an end upon settlement at mediation

JMW is dedicated to making sure you are well-represented and supported by experienced solicitors, giving you the peace of mind that your commercial dispute is in capable hands.

Meet Our Team

We guide you through the commercial mediation process, help you to evaluate whether it is the best path for resolving your dispute and provide full representation to work toward an effective resolution.

Case Studies

What Is Mediation?

Mediation is generally recognised as a cost-effective and pragmatic process for resolving commercial disputes. The nature of mediation means that parties select and jointly appoint an independent third party known as a mediator to help facilitate their negotiations and resolve the dispute.

A mediator is not a judge. The mediator’s role is to assist the parties in finding scope for negotiation, and then communicating offers between the parties in an effort to bridge the gap between them. The mediator’s specialist skills help to bring the parties’ positions closer and deliver a mutually satisfactory resolution, even in the most complex disputes.

What Happens During Mediation?

On the day of the mediation, the parties typically sit in separate rooms at the same venue, although some mediations take place online. An independent mediator moves between the parties and attempts to broker a resolution through careful negotiation. The mediator may gather the parties in an open session at the start of the mediation if they wish. Here, they can make an opening statement about their respective legal positions and intentions regarding the mediation and their intentions.

Each party has the opportunity during the mediation to hold confidential discussions with their solicitor. Our specialist dispute resolution lawyers are highly experienced in mediations, and will guide you through the process and strategically advise you throughout the day. 

Mediation meetings are conducted in private, and all of the discussions are ‘without prejudice’, meaning they are entirely confidential and that anything said - including any concessions or offers made during the negotiations - cannot be disclosed in court proceedings or to any third parties. If an agreement is reached, the parties’ solicitors will draft a written settlement agreement which, once signed by the parties, becomes legally binding.

This type of ADR can be an extremely effective way to resolve a commercial dispute and is often used by parties who would like to maintain a commercial relationship. The costs of mediation are substantially lower than the legal costs associated with pursuing court proceedings to trial.

Further, the parties are often able to creatively negotiate the terms of settlement and achieve solutions that would not be possible in court proceedings. In fact, in certain cases, a mediation can result in a better outcome than might be achieved at trial. Ultimately, mediation brings certainty of outcome, allowing both parties to minimise their risks, limit their costs, and focus on their businesses.

Mediation is an option for all types of civil disputes, including:

• Contract disputes, e.g. breach of contract claims and disputed debt claims
• Company disputes, e.g. shareholder/director disputes
• Probate and inheritance disputes
• Property litigation
• Professional negligence
• Defamation
• Intellectual property matters

For more information on the commercial mediation process, take a look at our business guide to commercial mediation.

Q

When and where do mediations take place?

A

Mediation can take place at any stage before trial. It is possible to hold a mediation at the very outset of a dispute if the other party agrees, even before legal proceedings are issued in court.

Mediation typically lasts for a half day or a full day, and takes place in person. There are no strict rules as to how a mediation is conducted. The parties jointly select and appoint the mediator, and the mediation can take place at a venue of the parties’ choice, including JMW’s offices.

Q

Who is the mediator and what is their role?

A

The mediator is an independent person chosen by the parties to facilitate the mediation. Usually, the mediator is an experienced lawyer who holds relevant qualifications and will often have experience in the specific practice area related to the subject matter of the dispute.

The purpose of the mediator is not to make a decision, but to help the parties reach common ground and communicate offers made by one party to the other. The mediator will listen to the parties’ aims and objectives for the mediation, carefully consider the strengths and weaknesses of each case, and enable the parties to negotiate effectively.

Disputes often involve animosity between the parties, especially if they are complex or high in value. A good mediator will manage the parties and will swiftly get to the root of the issues, to facilitate an outcome or compromise that both parties can accept.

Q

What happens at a mediation?

A

You will attend the mediation with the JMW partner or solicitor who has been advising on your legal claim. If you are attending on behalf of a company or organisation, you must have the necessary power or authority to make decisions on its behalf about the settlement of the legal proceedings. Many organisations send a senior member of the management team or a director of the company.

Before the mediation, legal representatives will send a document known as a position statement to the mediator, which outlines the outcome you desire. On the day, the mediator will usually hold a joint session to explain how the mediation will be conducted. The parties will be given separate rooms for the mediation, and the mediator will move between each room throughout the day. The mediator may also suggest a joint session during the day so that parties can discuss issues face-to-face, which may break down barriers and encourage a more collaborative approach towards settling.

Offers are usually made back and forth until an agreement is reached. All offers made throughout the day are confidential and cannot be discussed in later proceedings. JMW will attend the mediation and advise you throughout. When an agreement is reached, the parties’ legal representatives will draft a document to reflect the settlement. If legal proceedings had been commenced before the mediation, a consent order is filed to inform the court that the parties have reached an agreement.

Q

How do I prepare for commercial mediation?

A

Preparing for commercial mediation can ensure that the process is as effective as possible. Your JMW solicitor will help you to:

• Understand your case by reviewing the facts, evidence and legal issues in the case.
• Know your objectives and clarify what you want to achieve in terms of best-case and worst-case scenarios. Keep in mind that there are inherent risks with litigation. If the parties are unable to settle at mediation (or shortly thereafter) and the proceedings continue to trial, the costs of litigation will be substantial, and there may be additional costs for an adverse outcome. You may wish to factor in the estimated legal costs in any settlement ranges.
• Prepare documentation such as contracts, correspondence, and any other relevant materials that support your position.
• Draft a position statement that outlines your view of the dispute and how you believe it could be resolved.
• Choose the right mediator with relevant experience and expertise in commercial disputes.
• Consider settlement options and be ready to discuss these during the mediation.
• Decide who will attend and ensure that these individuals have the authority to negotiate and settle disputes.
• Work with your legal team to develop a strategy for the mediation. Decide whether or not to make the first offer, the level of any opening offer, and the parameters for a negotiated settlement. This should include any specific terms of settlement, such as the timing of payment and the treatment of VAT.
• Organise logistics and practical details such as the venue, date and time, and any necessary accommodations long before the mediation date.
• Mentally prepare and understand that compromise may be necessary. Approach mediation with an open mind and readiness to negotiate, as it can be a long day. While mediation is a voluntary process and parties can leave when they wish to, most parties involved will keep trying to reach a conclusion while they are able to.

By carefully preparing, you can enter mediation with clarity and a readiness to engage constructively towards a resolution.

Q

What are the benefits of mediation and achieving settlement?

A

Court proceedings can be lengthy, expensive and time-consuming, and parties often prefer to settle a dispute before it goes to trial, where possible. Trials are also inherently riskier, as it is impossible to predict how a judge will determine the case and in whose favour, whereas parties that settle have more control over the outcome of the case.

For commercial disputes, mediation can preserve relationships between the disputing parties. An agreement reached between the parties can include unique commercial terms and have more flexibility than a judge's decision. Settlement can also be completely confidential, which minimises the risk of reputational damage that can arise from public court proceedings.

Even if mediation does not result in a settlement on the day, it can narrow the issues in dispute and the gap between the parties. Cases often settle shortly after mediation and before trial thanks to the added clarity mediation services provide. The option of virtual mediation now reduces overall costs and enables more accessible mediation, which offers an additional benefit over appearing in court.

Q

What are the disadvantages of mediation?

A

Although regarded as an effective means of alternative dispute resolution, mediation comes with potential disadvantages. One of the main concerns is that it may not lead to a settlement. The timing of mediation is also crucial, as it might not be appropriate to embark on mediation at the early stages of a dispute, when parties' positions tend to be further apart. Parties may enter into mediation without a genuine intention to try to settle the dispute. This can be a tactical move, though it carries the risk of being penalised by the court in respect of costs.

Parties may enter into mediation without a genuine intention to try to settle the dispute. This can be a tactical move, though if a party enters or chooses mediation in this way it may be penalised by the court in respect of costs. This is important, as settling through commercial mediation services requires compromise from both sides, and it can be particularly challenging when one party maintains a rigid stance.

Despite these challenges, even the most difficult cases may be resolved through mediation, and the process can be a much quicker and more cost-effective way of ending a dispute with greater certainty in terms of the outcome.

Why Choose JMW?

JMW’s commercial litigation solicitors have years of experience in mediation and can help you or your business pursue the fairest and most amenable outcome. No matter the nature of your dispute, the contractual relationship between the parties involved or the result you want to achieve, we can help.

We have been able to achieve a positive outcome for many clients using mediation, and will advise you on whether this approach is suitable based on your circumstances. We offer a comprehensive range of alternative dispute resolution and commercial mediation services, so you and your business can find the most effective way to resolve disputes, preserve business relationships and find a positive outcome.