Our Commercial Mediation is a private and confidential dispute resolution process in which an independent and neutral third party, the Mediator, seeks to help the parties to reach a mutually acceptable negotiated agreement.
The process usually involves some level of briefing of the Mediator before the Mediation itself, which typically lasts a day. The Mediation is attended by a ‘decision maker’ for each party as well as their legal advisors, relevant experts and insurers (if any). The process is voluntary and either party can withdraw at any time. However, if a settlement is reached it is legally binding.
What is our Role as “Neutrals” in Commercial Mediation
- As “Neutrals” in Commercial Mediation, we are simply facilitators appointed by the parties.
- As “Neutrals” in Commercial Mediation, we do not decide who is right or wrong or issue a judgment in favour of one party.
- As “Neutrals” in Commercial Mediation we function to support the process, gather information and assist in problem-solving.
- As “Neutrals” in Commercial Mediation, we seek to isolate the issues, help the parties to evaluate the strengths and weaknesses of each other’s case and encourage the parties to work co-operatively towards settlement. This is done in private meetings between the Mediator and each party and as appropriate in joint meetings where both parties (or any/some of their representatives) attend with the Mediator.
- As “Neutrals” in Commercial Mediation, we will assist the parties to negotiate a settlement in the same way, through the use of private and joint meetings.
What is our Role as “Advocates” in Commercial Mediation?
As “Advocates” in Commercial Mediation, we assist in presenting and arguing our party’s/client’s position, needs and interests in a non-adversarial way. With this service:-
- We negotiate (on behalf of our party) outcome to a dispute which is usually more satisfying, more effective, more workable, more flexible and more durable than an order imposed by a court or other tribunal.
- We control the dispute process and its outcome.
- We professionally represent/assist our party to a dispute and/or advise our party in coming to a settlement that both deals with all matters in the said issue and also meets our party’s true needs and wider interests.
- We ensure that our party to a dispute should have regard to helping the opposite party secure its needs while at the same time preserving our party’s own.
What is our Role as “Advisors” in Commercial Mediation?
As “Advisors” in Commercial Mediation, we simply:
- Provide information and support to staff and Law Centre personnel, who are working with clients to resolve such matters, about mediation and the mediation process and how to identify client problems suitable for resolution through mediation.
- Develop a comprehensive understanding of the case in question and determine its feasibility.
- Develop and maintains good working relationships with Law Centre personnel, Access Pro Bono, Legal Services Society and local agencies providing services to our client in order to encourage referrals to range of services including mediation.
- Work with Law Centre personnel to assist clients in problem solving activities and making referrals to other internal or external agencies as appropriate.
- While working with clients, we consider other needs of the clients that may arise or be identified during the assessment and counseling process and make referrals, as appropriate, for further assistance.
- Provide information to clients who have been referred to us about mediation and the mediation process.
- Conduct more in-depth assessment and screening with clients for mediation, some of whom may not speak English or who have emotional, physical or mental conditions that act as barriers to communication.
- Provide basic counseling to clients to assist their decision-making about the process as it applies to their particular situation and needs.
- Determine that mediation is a viable option for the client’s problem; hence, discusses with the client which other parties need to participate in the mediation process and then assists the client to contact the other party or parties to canvass the possibility of resolution by mediation.
- Determine if all parties agree to participate in mediation; hence, we support the client and other parties by;
- Helping them to understand the mediation process and to consider and choose the appropriate style of mediation process most suitable to the problem;
- Determining financial eligibility issues (whether the referral would be made on a pro bono basis or on a fee paid basis);
- Coordinating a referral of the matter to the Mediator list;
- If the parties are unable to agree on a specific roster mediator, helping the parties to engage in a more formal selection process;
- Coaching the parties on how to prepare for mediation by:
- Explaining the mediation process
- Offering clients/parties access to the Self-Help Information Services resources as appropriate
- Identifying information that should be collected by the parties and shared with other parties prior to the mediation
- Identifying other people or resources that should be consulted prior to the mediation
- Identifying the need for legal advice or representation, and if there is such a need, coordinating referrals to other service providers, or to external providers.
- Supports clients to complete required documentation.
- Ensures accurate records are kept (through MIS system, the Justice Tracking System, or otherwise) of client information, case notes, referrals, statistics and outcomes of mediation as needed.
- Prepares statistical and other reports as requested.
- If the mediation process does not result in a full resolution of the problem, or if the client has other needs not addressed during the mediation process, coordinates integration or re-integration of the client, as appropriate, into the assessment process.
What are the Key Advantages of Commercial Mediation?
Control – Mediation is based on both parties taking control. ‘Ownership’ of the dispute and the outcome remains with the parties. They are actively involved and can express their own points of view throughout the entire process. By taking control and finding a solution that works for them, both parties avoid the risk of having a less satisfactory solution imposed on them by the Court.
Confidentiality – The process is confidential and without prejudice to any proceedings. Information and documentation shared privately with the Mediator cannot be passed to the other party during the Mediation without express permission. Furthermore, the outcome of the Mediation is only publicised if the parties so agree.
Flexibility & Commerciality – Mediation concentrates on commercially based settlements and focuses party’s minds on the realistic resolution of problems. Parties are encouraged to make non-binding concessions and to propose their own formulae for resolving the dispute. Mediation provides parties with an opportunity to negotiate a tailored solution that will suit their mutual needs; often the solution will deliver more for both parties than any Court judgment could. It is a particularly valuable process where there is an ongoing commercial relationship, which parties wish to preserve.
Time Saving – Commercial Mediation offers a speedy alternative to litigation. Typically the Mediation will take place within four to six weeks of the Mediation Agreement being signed and in urgent situations even more quickly. While the lead time to get a case to hearing in the courts varies, it usually takes between 3 and 6 months in the Commercial Court (which has jurisdiction for claims over N1 million and certain types of claims) and between 18 and 24 months in the High Court.
Financial Saving – Commercial Mediation provides a very economic alternative to litigation. Given the speed of the process it enables parties to move on with their businesses more quickly and the resulting saving in terms of management time can be very significant. Equally the legal costs and expenses associated with the process are significantly less than the costs of litigating a dispute to trial. The expenses include the established, it has been estimated that the cost of mediation is approximately 20% of the cost of going to court. In Commercial Court cases and in personal injury cases respectively, mediation may be suggested or imposed by a Court during the course of proceedings and refusal to participate or do so in good faith may have negative cost consequences.
Our Specialisation in Commercial Mediation and Negotiations
Most forms of commercial disputes are suitable for mediation, for example we handle the followings:
- Commercial Disputes
- Professional Indemnity
- Professional Negligence
- Professional Indemnity Defence;
- Trades Disputes
- Bank and Third Party Debt
- Credit/Trade Credit
- General Corporate
- Product /Service Liability
- Contract Breach/Disputes (Damage Claims)
- Insurance Disputes
- Shareholder Disputes
- Partnership Disputes
- Residential Institutions’ Redress
- Board Claim