These simple examples may help you if you have no experience of the sort of situations that mediation covers.
Mediation is usually the best way to solve a business dispute. Its application is not restricted.
You are a party to an action in the County Court. The judge insists that you mediate. The protocol required by the Civil Procedure Rules is for mediation. If you have come this far without already considering mediation and its possible that one or both parties may be reluctant to try it. Bad thinking. The chance of an acceptable settlement of mediation is far higher, less risky, and less expensive than going through the court process.
Your mediation – it is unlikely that you will settle your dispute at this stage in a shorter time than a five hour mediation. If you have multiple issues, go for nine hours.
Remember we will rebate time unused if you manage to settle sooner than you expected.
Whatever you and the other party say to each other, the fact is that you both know litigation is not the answer. You want mediation to settle a number of points right now. If possible, you would also like to discuss the framework for solving future disputes before they escalate.
You are a builder or the client. You are concerned at the build-up of small disagreements. Your construction contract simply does not cover all of the events that have unfolded since you signed it. You know that if the contract breaks up, both sides will be subject to enormous cost.
Your mediation – you really need a live discussion, probably with each side represented by more than one person.
First, the Mediator needs time to understand the background. That will involve reading the contract documents, each party’s story of the problems, and possibly a visit to the site. However, the extent of the mediation you require has to be up to you. A good way to start would be for each side to have a face-to-face discussion with the Mediator simply to discuss the best way forward.
The Mediator is well used to land and construction issues and will help you in any way you decide.
- You are a professional service provider. Your client has refused to settle your account. You could just write it off but you also have a sneaking feeling that your client wants to damage your reputation as a matter of vengeance.
Your mediation – we do not want you to think we are diminishing your problem, but of course your situation arises frequently. The fundamental problem is that all the trust between the parties has evaporated.
The Mediator will be sensitive to the propositions and feelings of each side and will explore different avenues to satisfy both. It is likely that five hours of mediation time will be enough to bring both parties together. Of course, it could take a lot longer if there are multiple issues. It may be possible to achieve settlement through telephone and our online platform to avoid the more expensive route of a live meeting.
- You are the chief executive of a District Council. One of your residents seem determined to pursue a very small dispute that arose three years ago and that was badly handled by your staff. This resident would obviously like to bring legal proceedings but probably cannot afford to do so. You believe he has no legal basis for a claim in any event. You want to get him off your back. If the basis of a legal claim against your Council was established, you would probably be happy to make a modest payment.
Your mediation – as you are aware, this is an everyday event in your sector.
You may think this is something that you should be able to resolve in-house. However, your resident has not merely lost all trust in you, but is now in what we might call “negative territory”.
The Mediator will discuss this with you on the phone and talk either on the phone or personally, to whoever in your team, has most recently led the liaison with your resident. From there, it might be best if the Mediator contacts your resident rather than you, to suggest that we have been approached by you with a view to mediation. We will explain the process and in particular, the depth and extent of our total impartiality and confidentiality.
If your resident accepts mediation then we shall be happy to take it forward in whatever way the parties agree. This process could be carried out entirely online or the Mediator could arrange a face-to-face meeting with the resident at an early stage. A live meeting would remain an open option.
- You are a dentist – a treatment you provided a few months ago did not work out well for your patient. She now feels bitter about it and does not remember your explaining before you treated her, that the outcome might not be satisfactory. You have ascertained that the value of a legal claim is very low but your main interest is to avoid a formal claim on your insurance. Obviously, in your business, reputation is also incredibly important.
Your mediation – this dispute obviously starts with an imbalance between the parties.
The Mediator must therefore avoid even the impression that he is negotiating on your behalf. If possible, the Mediator will meet your patient in person for a preliminary discussion. He will also meet you if you so require, but it is likely that he will be able to discuss your position on the phone.
From there, it is simply a question of engaging in the usual mediation “shuttle”, by phone or via the online platform. You should book this mediation for three hours although the time taken could be less.
- Your company is based in Dresden. Your sector is microelectronics. Three years ago, you entered into a complicated contract with a company in Australia for research, product development, licensing and shared distribution of new products in different markets. The contract was drawn under German and Australian law. You work in an extremely competitive sector. It is almost unthinkable for both sides that your disagreement should be litigated. Both sides are unhappy to deal with the legal system of the other but you have agreed that a UK based mediator might well be able to help you resolve your dispute.
Your mediation – the very high level of technical knowledge likely to be involved in this dispute means that the Mediator may well wish to use the services of a UK consultant in order to provide the required level of technical knowledge. (That will apply to every UK mediator simply because people who work at the cutting edge of science do not engage in mediation practice).
Subject to that, the mediation process is no different in your case from any other. The only difference lies in the administration. The Mediator would start by discussing arrangements generally by phone with each party. It seems likely that on site meetings will be required.
From there, the Mediator is in the hands of the parties as to how they wish to set up a one or two day live meeting between representatives of the parties.