What is Commercial Mediation?

Commercial mediation is a type of alternative dispute resolution. In simple terms, mediation can be a useful way to try to prevent the escalation of a dispute, and the time and costs that litigation inevitably incurs. 

Mediation involves the instruction of a mediator whose role is to act as a facilitator; essentially a bridge between the parties to try to find a middle ground resolution. 

Mediation is entirely confidential and privileged meaning it cannot be referred to in open court- the idea being that it enables parties to be frank and to give resolution the best possible prospect of success.

The use of commercial mediation has increased significantly over the last 10-15 years. We have accredited mediators who are Partners of Helix Law who do not accept appointments as a mediator, but who are able to advise commercial clients in a commercially astute rounded way as a result of their experience in mediations.

Mediations can be incredibly useful and successful at resolving disputes. There is, in theory, no need for solicitors, barristers or the courts to become involved in commercial disputes. Shareholders might simply negotiate a resolution directly themselves. In practice, most will have attempted to do so before contacting us, or the conduct will be so bad that it requires urgent advice to prevent further deterioration.

In much the same way as above there is no secret or ‘magic bullet’ to why mediation can work. The steps taken before mediation are incredibly important to give the process the best possible chances of success. Mediation itself incurs costs. 

We achieve excellent outcomes at mediation not only because we intimately understand the process, but also because we work to ensure our clients’ are well positioned in advance of a mediation taking place. Such steps can include/require the issuance of unfair prejudice petitions and injunctions all of which protect and preserve the position in the immediate short term, and also simultaneously incur costs we will seek to recover from the opponent. Such an approach forces the other parties to understand not only that matters are now being taken very seriously, but also that if they fail to settle at mediation their position will only worsen. Taking this approach the parties arrive at mediation with every incentive to settle.