FAQs

What is commercial mediation?

Commercial mediation is a voluntary and confidential process which aims to resolve disputes between two parties. It can only take place if all of the participants involved provide their consent.

By working with a trained mediator, whose role is to fulfil a neutral position, the participants can try to work towards a suitable dispute resolution without the need to go to court. Participants often feel this informal process allows them to remain more in control of the outcome.

What role does a mediator have?

The mediator is not a judge or arbitrator of what happens. They are not there to decide who is right or wrong. They must offer advice or make suggestions or recommendations.

The mediator is an independent person who has been appointed to facilitate discussion, and the mediator must remain impartial throughout the process.

By creating a safe and confidential environment, it is the mediator’s role to encourage all parties to engage in the problem-solving process.

They must use their skills to ensure that all of the participants’ views and ideas are heard in a respectful and non-judgmental way. If possible, they should assist the disputed parties as they seek to develop and finalise their own solution to the issues at hand.

Can the mediator provide advice? 

As outlined above, the mediator’s role is to facilitate conversation between all the parties involved. They can help you consider different opinions and options in a bid to resolve the dispute, but they are not there to give advice.

The mediator will offer support if you find the process stressful, and will help to manage emotions so that each party can make their points calmly and clearly.

Does the mediator decide what happens? 

It is not the mediator’s role to decide on the outcome or impose solutions. They are only present to ensure talks can progress and move forward for both parties.

Mediators are there to help facilitate a way through the dispute, so that both sides can mutually agree on a way to settle the issues at hand.

Do you have to have legal representation in mediation?

You do not need a lawyer or solicitor to engage in mediation, but you are welcome to have the assistance of one if you want to. You are also free to represent your own interests with legal assistance. It’s totally up to you.

If you want to use a lawyer or solicitor to assist in the mediation process, they could play a very important role if terms of a settlement agreement need to be drafted, as the mediator is not allowed to do this.

What happens during mediation?

Whilst this will vary according to the dispute, the general process requires the mediator to talk with both sides separately and listen to their version of events, before helping to assist with negotiations in a bid to get both sides to reach an agreed settlement.

As an expert in communication, mediators understand that emotions can run high when a dispute arises. It is their role to defuse tension and ensure amicable communication can take place. This does not have to be done face to face. Negotiations may take place through the mediator or written communication. But, if possible, the mediator may choose to bring all the parties together to talk. However, this will only happen if everyone is in agreement.

Do I have to be in the same room as other party during mediation?

No, unless you both agree to do so. The aim of mediation is to find an agreement that both parties agree on, whether you are in the same room or not.

It is not important to be in the same space as the other party, and you don’t have to spend any time with them if you choose not to.

The mediator’s role is to find a way to resolve your disagreement, without necessarily having direct contact.

How can mediation help eradicate the issue of court delays?

Mediation alleviates the issues of court delays by offering a quicker and more efficient resolution to disputes.

Unlike court processes, which are often lengthy, using the help of a neutral mediator is a quick way to allow both parties to actively participate in the dispute resolution process in a bid to create a suitable solution.

By adopting a collaborative approach, you can save money by minimising the need for a lengthy legal battle. Additionally, mediation is very flexible and allows you to discuss your issues at your convenience, rather than rely on the dependence of a court schedule.

Do I have to use mediation?

Mediation is not yet a mandatory requirement for most civil and commercial disputes, but the Courts are continuing to promote the benefits of the process because they want going to trial to be seen as “a last resort” between litigating parties.

In recent years, the Civil Justice Council has implied that financial penalties will be brought in and issued to parties who do not make any effort to settle their disagreements before trial, whether that is through mediation or another form of Alternative Dispute Resolution (ADR). 

However, it is worth noting that a party which unreasonably refuses to agree to mediation may be penalised when it comes to settling costs at the end of a claim.

Can mediation be used when proceedings have not been issued?

Mediation has often been considered in the context of the litigation process, but it is also suitable for disputes where proceedings have not been issued and both parties want to facilitate negotiations. Sometimes we are asked to mediate on very recent disputes or issues which are hindering a business or relationship, and preventing it from moving forwards. 

Using a specialist mediator is often a great way to start negotiations, break the deadlock and help overcome disputes so that the parties involved can make plans for the future.

By fostering open communication and early intervention, mediation can resolve claims pre-issue or pre-CCMC to deliver a quicker, more amicable settlement before formal legal proceedings.

Is mediation confidential? 

During a mediation, every conversation takes place ‘without prejudice’ and with 100% confidentiality. That means nothing which is said at mediation can be used in court, if ever the dispute was to go that far.

For civil disputes, each party can decide exactly what information they want to share with the other.

The discussions which take place in mediation and the outcomes which are reached, if any, can only be shared if both parties are in agreement.

Is the agreement legally enforceable?

In most mediations, when both parties agree on a resolution, they will be required to sign a written ‘settlement agreement’ which is legally binding and sets out the terms of the agreement which has been reached.

In the case of civil disputes, the signed agreement is a legally-binding contract. 

If court proceedings have started already, the court can make an order which details the terms of any mediation agreement which has been reached, known as a ‘consent order’ or a ‘Tomlin order’ under UK law.

What happens if there isn’t an agreement?

The majority of mediations have an excellent success rate, with between 70 to 80 per cent of civil disputes settling on the day, or sometimes shortly after.

If you are unable to reach a settlement position, but feel as though you have made good progress, you can take a break to evaluate all the options before resuming the mediation. You may need to set another date, but this is rare and we are happy to proceed until a conclusion is reached, even if it requires more time than has been originally allocated.

As you would expect, either party is free to drop out of the mediation at any stage and proceed to court with the case.

Why can mediation help resolve both liability and quantum disputes?

Mediation is effective in resolving both liability and quantum disputes because it provides a structured, neutral platform for all parties to openly communicate and negotiate.

In liability disputes, it fosters understanding, allowing parties to clarify perspectives and find common ground. For quantum disputes, mediation encourages a transparent discussion about the extent and value of damages, facilitating compromises and creative solutions.

It is the role of the mediator to guide the discussion, ensuring that legal and factual issues are addressed and to promote a sense of ownership over the outcome.

How can mediation help to save money?

Mediation can minimise the amount both parties spend on legal costs by avoiding the need for a prolonged court battle. It is a streamlined process which is inherently more cost-effective than extended litigation.

Typically, mediation requires far fewer resources than going to court, minimising the expenses often associated with protracted litigation. Mediation can also reduce the costs of settlements.

Why can mediation minimise the risks of protracted litigation?

Mediation hastens settlement times by streamlining the negotiation process. Direct communication and focused discussions facilitate quicker agreements compared to lengthy court procedures.

Mediation reduces the risk of protracted litigation by encouraging compromise. All parties are motivated to find common ground, reducing the likelihood of a lengthy and costly court battle.

Why does mediation give you opportunities you cannot access in court?

Mediation allows you to tailor a solution that is unique to the circumstances of all parties. It allows for creative and bespoke agreements that may not have been achievable through the rigid constraints of the legal process.

Mediation is a collaborative environment, where people feel heard and actively participate in the resolution.

How can mediation help you reduce the risks of losing at trial?

Mediation reduces risks of losing at trial by providing a controlled environment. Parties have more influence over the outcomes, mitigating uncertainties associated with court decisions. Mediation can also ensure an earlier settlement is reached, accelerating the financial relief for all parties compared to a lengthy court scenario.

How can mediation help you avoid the stress of going to court?

Mediation allows all parties to have a say in the outcome by fostering active participation. It empowers individuals to shape their resolution, promoting a sense of control and satisfaction.

Mediation helps avoid the stress of court appearances by providing a less adversarial setting. Parties can resolve disputes in a more relaxed, collaborative and informal environment.

How long does mediation take?

Most civil and commercial mediations are concluded in a day, but it depends on the nature of the dispute.

Both parties may reach an agreement in just a couple of hours, or it might take slightly longer. If you want more than one session, that’s fine too.

Patience is key. Mediation can often take more time and energy than you would expect. It can be difficult and there might be instances where one or both of the parties become frustrated or angry. By adopting a patient approach, the mediator should help the negotiations to flow smoothly.

When is the best time to mediate? 

Mediation is a flexible process and can occur at any time before your dispute reaches a court hearing. The ideal timing varies depending on your specific situation but initiating mediation as early as possible is often recommended.

Early mediation can minimise the time and costs associated with disputes, helping to create open communication between all parties before entrenched positions develop.

Even if a court claim is underway, mediation still remains an option. The court can temporarily halt proceedings to facilitate mediation. Importantly, the judge won’t be informed about the details of the mediation discussions or any offers made during the process.

Is offering to mediate a sign of weakness? 

Heading to mediation can be empowering for all parties because they are able to retain far more control over the eventual outcome. You can choose what information to discuss with the other side. Unlike in court, you can choose whether to settle and on what terms.

How much does mediation cost?

The amount you pay for mediation will depend largely on the complexity of the dispute. But both sides are required pay the same equal fee to take part in the process.

For clarity, we display all of our mediation fees on our pricing page and will always agree the exact costs before any mediation takes place.