The Mediation Process ( Commercial)

Mediation is an effective, efficient, and economic voluntary process which delivers resolution to commercial, corporate, workplace and personal disputes and conflicts.

The key to mediation is that the parties arrive at their own solution with the guidance and assistance of the mediator. The mediator is neither a judge nor an arbitrator and does not adjudicate or hand down a decision in relation to a dispute. Rather, a settlement is reached by allowing parties in dispute to clarify and explore issues in a non-adversarial channel. It is the neutral mediator’s expertise and skills which facilitate the possibility of settlement.

Confidentiality before, during and after the process is central to the principles of mediation. A process that works Without Prejudice and incorporates flexibility, mediation offers parties a means of achieving agreement without public or future disclosure of information. Confidentiality of all discussions and exchanges during the mediation process is legally binding.

Mediation focuses on finding agreed resolution for all involved parties. This emphasis allows parties to drive the negotiations towards an agreed solution, facilitated by an experienced mediator.

Stage 1: Commencement of Commercial mediation

One party to a dispute refers the matter to mediation i.e. contacts Karen Erwin (EMS) whose role it is to assist in dispute resolution
EMS contact the other party (or parties) to the dispute to discuss the possibility of mediation
If all parties agree, a mediation agreement is signed which governs the process

Stage 2: Appointment of Mediator

Each party sends EMS a brief statement of the issues. This enables EMS to suggest a suitable mediator who must be acceptable to all parties.
A date, time and venue is fixed for the mediation to take place
The fees are agreed depending on the parameters and complexity of the case

Stage 3: Preparation for Mediation

Each party submits a position statement outlining the matters in dispute, including the core relevant documents – if possible these documents will have been previously agreed by all parties
Each party pays the agreed basic meditation fees and outlays in advance.

Stage 4: Mediation

The mediation starts usually with the mediator explaining the procedure to both parties in joint session
In the same joint session the parties have the opportunity to outline their side of the dispute without interruption
After the completion of the joint session, private sessions may be held with each party. This can continue throughout the mediation process
Everything said in these private sessions is confidential and can only be revealed to the other parties if there is express agreement.
The mediator, depending on the circumstances, may continue with private sessions, may have joint sessions or may have sessions with the party advisors. The flexibility of the process means there are no hard and fast rules on how resolution is arrived at.
Where the parties want an ongoing relationship after the mediation there will be a greater emphasis on joint sessions especially towards the end of the mediation.

Stage 5: Agreement

On reaching agreement, the terms are written down, each clause in initialled the agreement is signed by all of the parties and any advisors present.
If agreement is not reached then there may be a joint session of the parties where the mediator sets out issues where agreement has and has not been reached

Stage 6: Moving on from Mediation

If the parties wish, EMS can help to oversee the Settlement Agreement or can attend a review meeting.
EMS returns the documents to the parties, retaining the original agreement – ensuring that the parties each have a copy of it.
None of the people connected with the mediation may reveal any confidential information from the mediation
If appropriate, EMS submits a balancing invoice for additional costs or outlay not included in the initial payment.
The parties and their advisors are asked to complete feedback forms on the performances of EMS and the mediator.