“ There is no case, however conflicted, which is not potentially open to successful mediation.”
Lord Justice Thorpe
Case Study One
The final hearing in Chancery proceedings over respective interests in a family farm was stayed pending mediation between the four parties, two of whom were divorcing spouses in ancillary relief proceedings themselves adjourned generally pending the outcome of the Chancery proceedings. Total costs to date in the four-year long proceedings were over £30,000. In a hybrid family/civil mediation lasting one day, attended by the four parties and their solicitors and counsel, a Tomlin Order was concluded in the Chancery proceedings, and a publicly funded privileged family mediation also produced a Memorandum of Understanding in respect of the ancillary relief proceedings. The total cost to the four parties and the public purse was just over £2,000.
Case Study 2
A building firm issued court proceedings against one of its customers for the balance of their invoice, quite a substantial sum of money. The builders refused to accept a penny less than the face value of the claim. The customer refused to pay a penny more beyond that which he had already paid. The builders felt their good reputation was being attacked and the customer felt he was being overcharged. During the course of the mediation, underlying personal issues were unearthed which had contributed to a major breakdown of communication. As the mediation progressed, the builder agreed financial concessions and the customer agreed that he should pay something. A financial compromise was reached with which both sides were content. The litigation ended there and then. Thousands of pounds in legal costs were saved and both parties moved on to other and better things.
Case study 3
Arthur was a senior shop steward and an equally senior skilled engineer with a medium sized company. The floor manager with whom he had worked for a great many years had retired and had been replaced with a newcomer. Arthur and the newcomer did not see eye to eye about just about everything involved in the particular job. Things deteriorated to such an extent that Arthur was diagnosed with stress and was certified unfit for work on a long term basis. The company was anxious for Arthur to return to work and Arthur himself wanted to do so. During the course of the mediation, by listening to what both sides had to say, we were able to identify how, where and when the differences and problems had arisen and by exploring practical suggestions which both Arthur and his manager were keen to make, assisted them in achieving a framework by which Arthur would be able to return to work as soon as medical clearance was obtained. Hands were shaken and the basis for Arthur’s return to work was achieved.
Civil and Commercial Mediation Service
In addition to our family mediation service, we also offer a dedicated civil and commercial mediation service. The three case studies above give a flavour of our work in 2006.
What do we Provide?
o The resolution of civil and commercial disputes effectively, cost-effectively and co-operatively
o The resolution of disputes by finding a solution, not finding fault
o A convenient and cost effective forum in which parties to a dispute can bring an immediate end to litigation or prevent it happening
o A comprehensive service dealing with many types of dispute, including: -
- - Personal injury claims
- - Contractual disputes
- - Company, partnership and business disputes
- - Contested probate and inheritance claims
- - Professional negligence claims
- - Landlord and tenant disputes
- - Employment disputes
- - Property, boundary and neighbour disputes
What Civil and Commercial Mediation?
Civil and Commercial mediation is :
• a process by which litigants negotiate about the arrangements for their future with the help of a neutral and independent third party
• comprehensive – we can look at all issues together and help achieve a type of solution which in certain cases a court simply cannot do
• a confidential and without prejudice way of resolving disputes without incurring spiralling costs
• a way of helping take control without the need to cling to the roller coaster of litigation
• an alternative route to litigation and court proceedings. The various court protocols and rules now require parties actively to consider mediation.
• suitable for resolving a very wide range of civil and commercial problems in a more conducive environment than a court
• a way of resolving disputes without damaging commercial relationships
Commercial mediation is not:
• a substitute for legal advice – input and involvement from the parties lawyers is of great assistance and the parties will generally be accompanied by their legal representatives at mediation sessions
• judgmental – the role of the mediator is to help you arrive at a solution and reach agreement, not to pass judgment
• an acknowledgment of weakness – it is a recognition that there are other ways to resolve disputes without having to go to court and it avoids the financial and emotional risks that a failure to succeed at court carries with it.
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The Advantages of Mediation
• Speed. The mediation can be set up and concluded very quickly, often within a matter of weeks from the initial referral. Ordinarily, the mediation is concluded either during a single half day or full day session.
• Certainty. Litigation is by its very nature uncertain in outcome. In many cases attitudes have become hardened and positions become entrenched. When mediation succeeds a final solution is reached there and then. Even when that does not happen, often the issues and areas of dispute become scrutinised and considered with a degree of objectivity and impartiality which can assist the overall outcome of the dispute.
• Control. The parties themselves assume or regain control of the dispute and its outcome.
• Communication. Contested and sometimes acrimonious litigation will almost inevitably harm, if not end, any prospect of an ongoing relationship. In commercial and business matters, it is possible through commercial mediation to sometimes restore lines of communication and save face.
• Costs. People who are helped to reach agreements through mediation tend to incur much lower costs.
• Flexibility. Subject to the basic structures of the process, the mediator can adapt the process to suit the type of dispute and the parties positions in a way that the court perhaps cannot, for instance, by considering documents or statements that under the rules of evidence, a court could not.
• Co-operation. The entire process is non-adversarial and can be more investigative. It can enable issues to be unearthed which a formal legal process may not be able to do.
• Emphasis. Mediation concentrates on resolving problems rather than emphasising entrenched and polarised positions through litigation
How does Commercial Mediation Work?
Following an initial joint agreement to mediate or after a referral to mediation by the Court, the mediator will contact the parties and their lawyers to explain the process, obtain some initial information and arrange a mediation session.
Before the mediation session, the parties will be asked to sign an agreement to mediate. They will send the mediator certain core documents and each party will pay a fee.
At the mediation session, the mediator will give a brief introduction and the parties or their representatives will be asked to make a short opening statement in each others presence.
Then, the parties will be invited to go into separate rooms and the mediator will begin the process of private session with each of them in turn. Unlike family mediation, the information, views and positions made known to the mediator in these private sessions cannot be disclosed or made known to one party without the other’s consent.
Settlement proposals will be explored and the parties views, opinions and positions made known to the mediator.
The process continues until an agreement or negotiated settlement is reached at which point the agreement, compromise or settlement is recorded and becomes legally binding.
This is a very broad general description of the commercial mediation process and it can be varied to suit. One of the particular advantages of commercial mediation in that it is entirely adaptable and there are no hard and fast rules.
The mediator is not there to impose a judgment or even to suggest a solution. He or she is there to facilitate a situation in which you can find your own solution and reach your own agreement.
Why Choose Us?
The Mediation Centre at Nowell Meller Solicitors Limited, has been dealing with family mediation for 10 years and during that time has gained a national reputation for the quality of its work. Because of our depth of experience, we can produce a service which is robust enough to manage cases of high conflict and complexity, where costs savings can be the greatest.
Like the family mediation service, our commercial mediation matters are mediated by senior and experienced solicitors each of whom has received comprehensive training and accreditation in commercial dispute resolution by ADR Group, one of the leading mediation training providers in the country. Whilst the mediator’s role is non-evaluative, and therefore it is of the utmost importance that they do not express legal opinion in any mediation, they subscribe to and are committed to the Law Society’s Code of Practice for Civil and Commercial Mediators, details of which are to be found on our web link.
Our civil mediators are Neil Robinson M.A. Oxon and Nick Fitzmaurice LL.B.
Neil is a member of the ADR Group and Nick is a member of The Association of Midlands Mediators as well as having held the posts of a Conciliator for Walsall Area Health Authority between 1996 and 2001 and Chair of the Independent Clinical Authority between 1996 and 2001.
If you would like to know more or arrange an appointment, please ring us on 01785 273133 and ask for Nick Fitzmaurice or Emma Turner (Manager), or email us at tmc@nowellmeller.co.uk
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Please feel free to look and Print Neil Robinson & Nicholas Fitzmaurice's CV. |
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