How Does Civil and Commercial Mediation Work?

Mediation is a structured process aimed at resolving disputes through open and honest communication and negotiation, facilitated by a mediator.

The mediator’s role is to remains neutral and independent throughout the process. Unlike a judge, it is NOT their role to decide on the merits of the case or the resolution. Instead, the mediator actively assists both parties to formulate a negotiated agreement.

In most mediations, there are five key phases designed to guide both parties through the comprehensive resolution process.

How mediation is done

1. Preparation Phase

Each party, or their legal representative, is entitled to choose a mediator, who will set a date and location for the mediation. The solicitor will usually agree the terms of the mediation agreement in advance. They also prepare written summaries of the case and gather relevant documents.

Before the mediation, each party should consider the commercial context of the dispute, seek legal advice and develop a negotiation strategy. If lawyers are not involved (they do not have to be), each party must handle these tasks themselves.

The mediator will usually hold a pre-mediation meeting with each party. A mediation is typically scheduled for a day, but they can vary in length.

2. Opening Phase

Each party is welcomed by the mediator, separately in their private rooms, and they can then explain their situation, key issues and hopes for the mediation process. The mediator will then outline the process. Sometimes they like to begin with a joint meeting where the mediator will set a few ground rules and may invite the parties to make opening statements.

3. Exploration Phase

The parties return to their private rooms, where the mediator meets with them individually, listens to their thoughts and aims to move them beyond their initial positions to understand their interests. The mediator facilitates the exchange of information between both disputing parties and seeks to establish a foundation for settlement. However, the information shared is carefully agreed upon, as all of the mediator’s private discussions with the parties are confidential.

4. Bargaining Phase

Each party can use this phase to shape the outline of the settlement and make offers. If a deadlock is reached, the mediator will try to assist and find a breakthrough.

5. Concluding Phase

To ensure the mediation process concludes effectively, any follow-up actions are agreed upon and, if an agreement has been reached, detailed settlement terms are finalised. At this stage, the settlement agreement is signed, although an agreed court order is sometimes necessary to conclude any outstanding proceedings. If no settlement is reached, or if only the main points are agreed upon during the mediation, the next steps are also discussed.