Commercial Mediation

30 December 2023

Commercial Mediation in Business Disputes

In this article we shall explore how using a Mediator can benefit the parties and how best to work with your commercial Mediator to achieve your desired results.


What is Commercial Mediation?


Mediation is a form of dispute resolution that provides professional support which is designed to empower and facilitate dialogue between those involved in a dispute. Your Mediator has been trained to speed up the process of negotiation and help parties agree outcomes that work for each organisation. This professional support enables most disputes to be resolved within a relatively short period of time and with some obvious advantages including cost savings for everyone involved.


What can commercial Mediation be used for?


Commercial Mediation is used primarily for dispute resolution, whereby conflict has crystallised into a dispute and legal or other professionals are involved or likely to be engaged with. Mediation can be used in different ways such as:

  1. To evaluate positions and outcomes
  2. To swiftly resolve the dispute
  3. To support lawyer to lawyer negotiations
  4. In the boardroom or between shareholders
  5. In combination with arbitration or other formal procedures


Mediators will always advocate to have mediation as soon as possible. The reason for this is that the sooner everyone is engaged in the process, the quicker an agreement can be drawn up. Mediation is on average 90 per cent successful, which means 9 out of 10 mediations result in an agreement.


Mediation may be used strategically as part of another process and may help to narrow issues (rather than formally agree outcomes). Mediation can be used to identify initial steps in resolving issues such as the form of resolution to use i.e. Arbitration, negotiation. Mediation, Expert Determination or to continue to use litigation (going to court).


Where Mediation is not deemed suitable or is not wanted by one or more parties, an alternative form of dispute resolution should be considered. However, Mediation can be used for all types of conflict and disputes as long as all parties agree to do so.


How do I select a Commercial Mediator?


A commercial Mediator is a fully trained and experienced neutral who has a background in commercial matters. Here are some tips about selecting your commercial Mediator:

  1. Professional Background: They may be a lawyer or a business professional with extensive relevant experience. Alternatively, a commercial Mediator may be someone who has supported businesses throughout the lifecycle of its growth such as a Business Advisor, Coach or Non-Executive Director.
  2. Qualities and Experience: You will be looking for qualities and experience that provide peace of mind as to an understanding of the issues you face and that they can bring commercial acumen to support your negotiation efforts.
  3. Professional Memberships: A commercial Mediator should be registered with leading and recognised bodies such as the Civil Mediation Council or the College of Mediators in the UK, International Mediation Institute (IMI) or other similar organisations across the world.


What is the process of Commercial Mediation?


Commercial Mediation is a professionally supported negotiation. This means that you will still need to prepare for your Mediation and you may need professional advice and representation, depending on the nature of your dispute and who is involved.


Mediation is focused on looking forwards and not reviewing evidence. However, in order to negotiate effectively, you will need to be fully prepared and have to hand all documents or correspondence that you intend to rely on.


Your Mediation session can take place in person at a neutral venue, solicitors office or Barrister’s chambers. Alternatively, your Mediation may be conducted remotely using online video conferencing software such as Zoom or MS Teams.

Getting Ready for the Mediation session:


  1. Mediation Strategy: We suggest that you prepare fully and make notes about what your aims are for the Mediation, including:
  2. What you want to agree to
  3. What you are prepared to negotiate or compromise on
  4. What you will not agree or compromise on
  5. Authority to Agree Outcomes: Ensure that you are empowered to make decisions for and on behalf of the company you represent. Failure to have this may result in an unsuccessful Mediation. You should get authority for sums of money and actions, and clarity as to what you cannot agree to without further approval.
  6. Mediation Bundle: All parties must disclose all information and documents that you wish to rely on.
  7. Meet your Mediator: Hold conference calls with your Mediator to ask questions and ensure that you feel ready.
  8. Professional Advice: Talk to your lawyer or Mediation Advocate about your strategy and options where you do not reach an agreement.
  9. On the Day: Bring pens, paper, and your own Mediation Bundle (your agreed documents)
  10. Attending the Session: Check you can log in (if your session is remote) or you know the location of the venue. Arrive in plenty of time to settle in to your own room, meet the Mediator and get mentally ready to negotiate.


Reaching Agreement: The Negotiation


Commercial Mediation usually takes a full day and sometimes can last into the night. It can feel more like an endurance race! This can happen for any number of reasons, but you should be prepared for an extended day of discussion.

Whilst it is better to keep up the momentum for the mediation and encourage everyone to stay in the process on the same day, you may decide that an additional session is needed.


It is often better to divide complex or high value Mediations into distinct parts. This allows you to deal with specific issues in turn and make progress incrementally.


As with all negotiations, preparation is key and of course knowing what you will agree on and what your limits are. Your Mediator will talk to you privately about the specifics of your own position and how you want to proceed. It is important to keep them involved in your thought processes and ensure that they fully understand your concerns, barriers, and challenges to reaching an agreement.


Your Mediator remains impartial throughout. This means that they will not provide advice or guidance, nor will they recommend outcomes. Their role is to facilitate your negotiation and to help you agree terms that work for you. They will sense-check your suggestions and reality-check offers on the table. The are skilled at asking the right questions to open-up the discussion in more creative ways, and to help you consider all options available to you.


You will have private sessions with your Mediator to discuss confidential aspects that you do not want to share, and open sessions with everyone involved to discuss issues and agree outcomes. Talk to your Mediator about how you want to conduct your session.


When you have reached an agreement, you will need to commit this to writing. If you have lawyers present, they will prepare a Mediation Agreement. This is a legally binding document once signed and if you need additional enforcement of its terms the agreement can be incorporated into a Consent Order or Tomlin Order. If this is something all parties want, you will need to seek legal advice about the details and next steps.


What should be contained in a Mediation Agreement?


The Mediation Agreement is a formal document that is legally binding under contract law. It is important that it contains the right details to ensure clarity. Your Mediator does not sign the agreement. This should be signed by the Parties and a copy held by each person for reference. Here are some key aspects to ensure that you include in your agreement:

  1. The Parties: the people in dispute (full names, organisation, office address and role)
  2. The terms:
  3. Include payment sums, when due, and any schedule
  4. Include actions and by whom, when, and any schedule
  5. Include whether additional Mediation is needed
  6. Next steps if any part of the agreement is breached
  7. The date agreed
  8. Signatures of the Parties
  9. Confidentiality Statement


After the Mediation


It is unlikely that you will have enforceability issues or outstanding matters after your Mediation. It is highly probable that your working relationship will have been improved and you will have learned some key skills to avoid the escalation of conflict in the future. To ensure that you remain on track, we suggest that you do the following:

  1. Communication: Keep communicating regularly until at least the agreement has been fulfilled and communicate any changes to personnel.
  2. Check-in: Prompt before actions or payments are due and be transparent where something cannot be fulfilled. Agree any amendments in writing and be clear when inaction becomes breaches of the agreement.
  3. Sign-off: when the terms of the agreement have been fulfilled, confirm this in writing and thank the others for settling and engaging with the process.
  4. Engage with your Mediator: If you need support following the mediation, contact your Mediator and agree to hold another session or have some remote neutral support to ensure that everything remains on track.


Our commercial Mediators are experts in business dispute resolution and are recognised globally for their work in their fields. Contact the team on 03300 431 757 or by emailing help@disputeresolutionagency.com to instruct a commercial Mediator for your dispute. 

Expert Advice

Case Study: Resolving a Business Dispute through Mediation

17 December 2024
Business Owner vs. National Retailer Introduction: Small business owner, Sarah, had been running her boutique clothing store for five years when she noticed that one of her designs was being sold at a national retail chain. After conducting further investigation, she discovered that the retailer had copied her design without permission and was making a significant profit from it. Feeling frustrated and violated, Sarah sought legal advice and was advised to take legal action against the retailer. Problem: Sarah faced two major obstacles in this situation - first, taking legal action would be time-consuming and expensive for her small business. Secondly, there was no guarantee that she would win the case and receive the compensation she deserved. On the other hand, the national retailer had a team of lawyers and could afford to prolong the legal battle. Solution: Instead of going straight to court, Sarah decided to try mediation as an alternative dispute resolution method. She reached out to a professional mediator who specialised in business disputes and explained her situation. The mediator suggested that they invite representatives from both parties for a mediation session. During the mediation session, Sarah presented her evidence and explained how the retailer had copied her design without permission or any form of compensation. The representatives from the retailer argued that they were not aware of Sarah's design and claimed that it was merely a coincidence. Outcome: Through effective communication facilitated by the mediator, Sarah and the retailer's representatives were able to understand each other's perspectives. The mediator also helped them identify the strengths and weaknesses of their cases. With the help of the mediator, a compromise was reached - the national retailer agreed to pay Sarah £75,000 in compensation for using her design without permission. In exchange, Sarah allowed them to continue selling the design with proper licensing and royalties. Benefits of Mediation: This successful mediation not only saved both parties time and money but also allowed them to maintain a positive business relationship. By avoiding a lengthy legal battle, they were able to focus on their businesses instead of being consumed by conflict. Moreover, through active listening and effective communication during the mediation session, both parties were able to understand each other's concerns and find a mutually beneficial solution. This helped them build trust and respect, which could have been damaged if they had gone to court. Conclusion: This case study highlights the effectiveness of mediation in resolving business disputes. It not only helps save time and money but also promotes better communication and understanding between conflicting parties. As a small business owner, Sarah was able to protect her rights and receive fair compensation without having to go through the stress of a legal battle. Mediation can be a powerful tool for SMEs in resolving conflicts and maintaining positive relationships with other businesses. So, it is important for business owners to consider this alternative method before resorting to legal action. As the saying goes, "a stitch in time saves nine," proactive early intervention through mediation can prevent conflicts from escalating and benefit all parties involved. Overall, mastering conflict resolution skills and using effective communication strategies can empower business owners to navigate disputes with confidence and care, leading to better outcomes for themselves and their businesses. In conclusion, resolving conflicts in business is not always easy, but it is essential for maintaining healthy relationships and promoting a positive working culture. Through mediation, active listening, crisis management techniques, and negotiation skills - business owners can effectively resolve disputes and turn them into opportunities for growth and collaboration. By learning from case studies of successful resolutions like Sarah's, SMEs can build a conflict-resilient culture and achieve long-term success in their industry. So, it is crucial to prioritize conflict resolution strategies and invest in building strong communication skills to navigate any legal disputes that may arise with confidence and care. Remember, effective conflict resolution is not about "winning" or "losing," but rather finding a solution that benefits all parties involved. Mediation provides a neutral ground for productive discussions and helps avoid the emotional and financial toll of going to court. With the increasing use of technology in modern dispute resolution, SMEs can now access mediation services remotely, making it even more convenient and cost-effective. In today's fast-paced business world, conflicts are inevitable. However, how we handle them can make all the difference. Mediation offers a collaborative and efficient way to resolve disputes, making it an essential tool for SMEs to have in their arsenal. By promoting understanding and finding win-win solutions, mediation can help businesses build stronger relationships and foster a positive environment for growth and success. So whether you are a small business owner or part of a larger corporation, consider mediation as your first course of action when faced with a potential legal dispute. It may just save you time, money, and unnecessary stress while also preserving important business relationships. As Sarah learned from her experience - mediation is not only about resolving conflicts but also about creating a win-win situation for all parties involved. So, embrace this conflict resolution method and watch your business thrive. Always remember that effective communication and collaboration can turn any conflict into an opportunity for growth and success. Empower yourself with the necessary skills and resources to handle conflicts in a proactive and positive manner, and you will be on your way to creating a healthier and more productive work environment for your business.

Case Study: Resolving a Landlord-Tenant Dispute through Mediation

by Will Chalmers • 3 December 2024
The Scenario: John had been renting an apartment from his landlord, Mr. Smith, for two years. However, in the last few months, John noticed mould and dampness starting to appear on the walls of his bedroom. Despite repeatedly bringing this issue to Mr. Smith's attention, no significant action was taken to address it. Frustrated with the lack of response and increasing health concerns caused by the mould, John decided to withhold rent until the issue was resolved. This led to a heated argument between John and Mr. Smith, with both parties unwilling to budge from their respective positions. The Conflict: John felt that he was entitled to a habitable living space, and the presence of mould and dampness was a breach of his rights as a tenant. On the other hand, Mr. Smith argued that John's negligence in maintaining proper ventilation and reporting the issue promptly led to the growth of mould. The conflict escalated quickly, with John threatening to move out and Mr. Smith considering legal action for unpaid rent. The Mediation Process: At this point, both parties decided to seek mediation services before taking any further action. A mediator was appointed, and both John and Mr. Smith were given an opportunity to express their concerns in a neutral setting. The mediator helped facilitate communication between John and Mr. Smith, allowing them to understand each other's perspectives and come up with a mutually agreeable solution. Through open dialogue, it became clear that the root cause of the mould issue was a combination of poor ventilation in the apartment and John's failure to report it promptly. The Outcome: With the help of mediation, John and Mr. Smith were able to reach a resolution that benefited both parties. Mr. Smith agreed to hire professionals to fix the ventilation system and address the mould issue, while John agreed to take responsibility for maintaining proper ventilation in his apartment. Additionally, an agreement was made for John to pay reduced rent until the issue was fully resolved, and he would receive compensation for any expenses incurred due to the mould. Conclusion: Thanks to mediation, John and Mr. Smith were able to resolve their dispute amicably and find a solution that worked for both of them. The mediator helped facilitate open communication, understanding, and collaboration between the landlord and tenant, allowing them to address the root cause of their conflict and find a mutually beneficial resolution. This successful outcome highlights the benefits of using mediation in landlord-tenant disputes. It not only helps resolve immediate conflicts but also promotes better communication and prevents future issues from arising. In this case, mediation was a cost-effective and efficient way to address the issue without resorting to expensive legal proceedings or damaging the landlord-tenant relationship. So, it is always worth considering mediation as a first step in resolving any disputes between landlords and tenants. After all, finding a mutually beneficial solution is more valuable than winning an argument. Need help with your Landlord and Tenant issues? Contact us by calling 03300 431 757 or via help@disputeresolutionagency.com or check out our Housing Resolution page for more information .

Case Study: Resolving a Workplace Dispute through Mediation

by Will Chalmers • 13 November 2024
The Scenario: Samantha had been working as a sales executive at a multinational company for five years. She was an efficient and dedicated employee who always met her targets and received positive feedback from clients. However, Samantha felt that she was being treated unfairly by her line manager, Mr. Smith. She noticed that her male colleagues were receiving higher salaries despite having similar job roles and responsibilities. Feeling frustrated and undervalued, Samantha decided to confront Mr. Smith about the pay disparity.  However, instead of addressing the issue, Mr. Smith dismissed her concerns and told her to focus on her work instead of worrying about other employees' salaries. This response only added to Samantha's frustration, and she began to feel demotivated and unappreciated. The Conflict: Samantha felt that Mr. Smith's dismissive attitude was a form of discrimination, and her repeated attempts to address the issue were being ignored. She also noticed instances where Mr. Smith would give preferential treatment to male colleagues, such as assigning them high-profile projects or allowing them more flexibility with their schedules. Samantha decided it was time to take action and considered submitting a formal grievance against Mr. Smith for unfair treatment and gender-based pay discrimination. However, before taking any legal action, she reached out to the company's HR department for mediation services. The Mediation Process: A trained mediator was assigned to Samantha's case, and both parties were given the opportunity to express their concerns in a safe and neutral environment. The mediator helped facilitate open and honest communication between Samantha and Mr. Smith, allowing them to understand each other's perspectives. While Mr. Smith initially denied any discrimination or unfair treatment, the mediator encouraged him to listen actively and consider the impact of his actions on Samantha's morale and job satisfaction. Through effective communication techniques, the mediator helped both parties identify the root cause of their conflict – lack of transparency in salary negotiations and unconscious bias towards gender roles. The Outcome: With the help of mediation, Samantha and Mr. Smith were able to reach a mutually beneficial agreement. Samantha was given a raise to match her male colleagues' salary, and she was also allowed more flexibility in her schedule to balance her work and personal life. In return, Samantha agreed to take on additional responsibilities and actively participate in the company's gender equality initiatives. The mediation process not only helped resolve the immediate conflict between Samantha and Mr. Smith but also promoted better understanding and communication within the workplace. It created a win-win situation for both parties by addressing the underlying issues and finding a solution that benefited everyone involved. Conclusion: Samantha's case is an excellent example of how mediation can effectively resolve workplace conflicts without resorting to formal grievances or legal action. By providing a safe and neutral space for dialogue, mediation can help parties understand each other's perspectives and find common ground for resolving disputes. In this case, Samantha was able to secure fair treatment and equal pay, while Mr. Smith learned the importance of transparency and unbiased decision-making in the workplace. This successful outcome highlights the benefits of utilising mediation in business settings, especially for small and medium-sized enterprises. By promoting open communication, understanding, and collaboration, mediation can foster a positive work environment that supports growth and success for both employees and the company as a whole. So next time your SME is faced with a workplace dispute, consider mediation as an effective way to resolve conflicts and preserve valuable relationships within your organisation. Need help with your workplace conflict or dispute? Contact us on 03300 431 757 or by email via help@disputeresolutionagency.com or check out our page on workplace mediation .

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