What happens in Business or Commercial Mediation?
The type of mediation process depends upon whether attorneys are involved or the parties are proceeding on their own.
When lawyers are involved:
Usually the attorneys for the parties select and agree upon a neutral
mediator. They provide him/her with a memorandum which lays out the
nature of the dispute, the issues to be resolved and the positions of
the parties. They also provide relevant documents, such as contracts
and financial statements.
The attorneys and the mediator agree on what type of process to follow
in the actual mediation session:
- Should the parties themselves actually negotiate or should
attorneys alone do the talking or is there to be a combination of these strategies.
- Should the parties meet together in a joint session or should
they be kept separate with the mediator shuttling between conference
Whatever the format, it is the role of the mediator to work with the
parties to bring out and understand the underlying needs and interests
behind their negotiating positions and to explore options, both monetary
and otherwise, that satisfy those needs.
Whether in separate or joint sessions, the mediator and the attorneys
work towards reaching mutually satisfactory solutions.
What is the role of attorneys in Business or Commercial Mediation?
The attorney's role is to help create workable options that
result in win/win solutions. Their role is not to be adversarial or a
What should a business lawyer look for in a Mediator?
- Preparation and planning
- Follow-up and communication
Mediation when no lawyers are involved:
- The mediator meets with the parties to determine if the case is
suitable for mediation.
- If so, the mediator begins the process by describing the Rules of
Mediation and the requirement for an "Agreement to Mediate" which is
then signed by both parties.
- The party who initiated the mediation provides an opening statement
describing the issues involved, the positions taken and the solutions
- The other party repeats this process.
- The mediator summarizes the statements in "neutral language" and
establishes an agenda from which the parties can begin discussing
specific issues and options.
- Information is gathered to provide facts behind the issues. The
mediator questions the parties to elicit needs and interests behind
positions taken on the issues under discussion.
- Various options (both realistic and unrealistic) are created and
explored to attempt to meet mutually acceptable solutions.
- Sometimes the mediator will "caucus" with a party. This means the
mediator meets separately with each party to discuss concerns they are
not yet prepared to discuss in joint session. The mediator may be
instructed to present proposals to the other side on behalf of a party.
- Either in caucus or joint session, options are explored and
- If the parties agree on a solution, an Agreement of Understanding is prepared and
signed by all parties. This signed agreement can be enforced in court.
What does Mediation cost and how long does it take?
A business mediation may take as little as two hours or several full days. The cost may be at an hourly rate or flat fee for an entire day. There may be additional hourly charges for necessary preparation by the mediator and to draft any needed agreement between the parties.
However, parties are urged to compare these costs and time frames
with the cost and time frame of litigation and the uncertainly of
What are the Rules of Mediation?
- Mediation is completely voluntary. Any party can quit any time.
- It is confidential. No information obtained can be used in court, nor can the mediator be called as a witness or be subpoenaed to produce any notes or documents used in the process.
- It is private.
- The mediator is impartial and neutral.
- The parties must negotiate in good faith.
- The mediator provides each party the continued opportunity to
identify and express his/her needs, interests and options for resolution.
- No party is permitted to interrupt the other when they are speaking.
- No rude or obscene language is permitted.
- There must be full disclosure of financial data and other relevant
- The parties negotiate their own settlement
- The mediator does not act as legal advisor or provide legal advice.
- If agreement is reached and signed, it is an enforceable in legal
What is the role of the Mediator?
- is neutral and does not decide who is right or wrong
or take sides.
- helps both sides communicate more effectively and clarify issues
- encourages each person to listen and hear the other side
- educates parties about successful negotiating techniques
- creates an environment that fosters productive negotiation
- explores the underlying needs and interests of both parties to help
create options for resolution
- helps generate additional information, options and ideas
- provides reality tests to check the reasonableness of demands
- protects the mediation process from abuse by a party who seeks to
harass or intimidate, rather than negotiate
- meets or discusses issues with parties' attorneys
- helps both parties find a mutually beneficial solution.
prepares session memos and the memorandum of understanding
What is a Mediation "caucus?"
"Caucus" is just a fancy word for a separate and private
meeting between the mediator and one of the parties. In business
mediation, the caucus is used frequently to allow parties to explore positions and options and review the strengths and weaknesses of their case with the mediator and to give him/her proposals to present to the other side.
What do Mediators want from the Parties?
- Willingness to discuss their wants and needs beyond positions
- Openness to consider and offer options to make progress
- Willingness to consult with attorneys to understand their legal
rights and obligations
- Good faith bargaining
- Prompt payment
What if I have been forced into Mediation by a court?
- Make the most of it!
- You have nothing to lose.
- You might find it will give you a satisfactory solution faster and
at less cost.
If an agreement is reached and signed, is it legally binding?
Yes. It is binding in a court of law, like any other contract.
You're in charge - when you choose to