Mediation can take place at any stage before trial. It is possible to hold a mediation at the very outset of a dispute, and 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 mediation can take place at a venue of the parties’ choice, including JMW’s offices and the parties jointly select and appoint the mediator to conduct the mediation.

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

The purpose of the mediator is not to make a decision or to tell the parties who is right and who is wrong. Instead, they are there to assist the parties on the day of the mediation, acting as an independent third party going between the parties, and communicating offers made by one party to the other. The mediator will listen to the parties’ aims and objectives for the mediation and put them at ease, so that during the course of the mediation, both sides will be able to calmly and carefully consider the strengths and weaknesses of each case, with a view to then exploring scope for negotiation between them.

There can often be animosity between the parties, and the disputes can often be high in value and involve complex issues. However, a good mediator will manage the parties and will swiftly get to the root of the issues, in order to help facilitate an outcome that both parties can accept by way of compromise.

You will attend the mediation with the JMW partner or solicitor who has been advising you on your legal claim. If individuals are attending on behalf of a company or organisation, it is important that whoever attends the mediation has the necessary power or authority to make decisions relating to the settlement of the legal proceedings on behalf of that company or organisation. Many organisations send a senior member of the management team or a director of the company.

In advance of the mediation, legal representatives will send the papers to the mediator together with a document known as a position statement that sets out your position. At the beginning of the day, the mediator will usually hold a joint session to explain the format of 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 can often help to break down barriers and encourage a more collaborative approach towards settling.

Each party has the opportunity to discuss their position and the mediator will encourage settlement when appropriate. Our solicitors will guide you and advise you throughout the commercial mediation process.

Offers are usually made back and forth until an agreement is reached. All offers made throughout the day are confidential and are made on a without prejudice basis. This means that anything said, or any offers made at the mediation cannot be referred to or used within the court proceedings.

If 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 would be filed at court to inform the court that the parties had reached an agreement.

Preparing for commercial mediation involves several key steps to ensure that the process is as effective as possible. Your JMW partner or solicitor will help you to:

• Understand your case: fully review all the facts, evidence and legal issues about the case.
• Know your objectives: establish your goals, and be clear on 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 are likely to be costs associated with an adverse outcome. Therefore, you may wish to factor in the estimated legal costs to trial (and your potential liability for adverse costs) in any settlement ranges.
• Prepare documentation: gather all necessary documents, such as contracts, correspondence, and any other relevant materials that support your position.
• Draft a position statement: create a concise statement that outlines your view of the dispute and how you believe it could be resolved.
• Choose the right mediator: select a mediator with relevant experience and expertise in commercial disputes.
• Consider settlement options: think about possible settlement scenarios and be ready to discuss these during the mediation.
• Decide who attends: ensure that individuals attending the mediation have the authority to negotiate and settle disputes.
• Plan your strategy: work with your legal team to develop a strategy for the mediation, including 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: arrange the practical details such as the venue, date and time, and any necessary accommodation in plenty of time ahead the mediation date.
• Mentally prepare: approach mediation with an open mind and readiness to negotiate, understanding that compromise may be necessary. It can often be a long day, so be prepared for this. Mediation is a voluntary process, so parties can leave when they wish to; however, if your case is time-sensitive, this is something which can be factored in by the parties’ legal representatives at the planning stages.

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

Court proceedings can be lengthy, expensive and can take up a lot of management time. Often parties prefer to avoid the time-consuming nature and cost of court proceedings by attempting to settle proceedings before they go to trial.

Parties who settle proceedings can control the outcome of the case. Trial is inherently riskier, as it is impossible to predict with absolute certainty how the judge will determine the case and in whose favour.

For commercial disputes, mediation can help preserve relations between the disputing parties. There is greater flexibility in terms of outcome with a negotiated settlement, as the parties can agree on a settlement on their own unique commercial terms.

Settlement can be completely confidential, which helps to reduce reputational damage that may occur as a result of public court proceedings.

Even if the mediation does not result in a settlement on the day, it is common for a case to settle shortly thereafter and indeed before trial, as the mediation is likely to have helped to narrow the issues in dispute and the gap between the parties. Engaging in a mediation can give the parties a much clear indication of their opponent’s objectives and the key issues to be determined at trial, which may help focus the parties’ minds on a negotiated resolution post-mediation.

The option of virtual mediation now reduces overall costs for conducting mediation and enables more accessible mediation for parties who may not have found it easy to travel to attend a mediation in person. It also means that parties can engage in mediation from the comfort of their home or place of business.

Mediation, although widely regarded as an effective means of alternative dispute resolution, does come with its set of potential disadvantages that need consideration.

One of the main concerns is that it does not always lead to a settlement, despite its use in narrowing down the issues between disputing parties. Additionally, the timing of mediation is crucial; it might not be appropriate to embark on mediation at the early stages of a dispute, when parties do not know enough about each other’s position and so tend to be further apart on the issues in dispute, and therefore less inclined to settle.

However, as claims progress and evolve, the process of disclosure and the exchange of witness evidence during litigation often causes parties to reassess the strengths and weaknesses of their own and their opponent's respective positions. In addition, the risks and costs associated with the ongoing litigation can help focus parties’ minds on exploring settlement by mediation.

In addition, there can be instances where parties 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.

Furthermore, settling by way of mediation usually requires compromise from both sides. This aspect of mediation can be particularly challenging when one party maintains a rigid stance. Despite these challenges, even the most difficult cases have the potential to be resolved through mediation, making it a valuable tool in the dispute resolution armoury. Ultimately, mediation can be a much quicker and more cost-effective way of bringing about a conclusion to a dispute, offering greater certainty in terms of outcome.