What Do I Need to Understand About the Commercial Mediation Process?

Understanding the Process Reduces Uncertainty

One of the most common reasons business owners feel uncomfortable about commercial mediation is simply that they do not know what to expect. When you do not know what is going to happen, uncertainty amplifies anxiety and can impair decision-making on the day. Understanding the process in advance removes that uncertainty and allows you to focus your energy where it matters: on the substantive negotiation that will determine whether you reach a resolution.

This chapter covers how a commercial mediation unfolds from start to finish, the roles of the mediator, the parties and their lawyers, how the mediator maintains impartiality, and the range of possible outcomes. This page is part of the Commercial Mediation Knowledge Guide. If you need a commercial mediator see my commercial mediator page.

Before the Mediation Day

Before the mediation day itself, several preparatory steps take place. The parties agree a mediator and sign a mediation agreement setting out the terms on which the mediation will be conducted, including the confidentiality obligations. The mediator will usually ask each party to provide a position statement summarising their case and their key issues, and may also ask for copies of key documents. These documents are typically exchanged between the parties so that both sides arrive at the mediation with a shared understanding of each other’s basic position.

The mediator will usually have pre-mediation calls with each party and their advisers to understand the background, identify the key issues, discuss the format of the mediation day and address any particular sensitivities or concerns. These calls are an important opportunity for the mediator to begin building the relationships of trust with each party that will be essential to effective facilitation on the day.

The Mediation Day: Structure and Sequence

Commercial mediations typically take place over one day, usually from around 9am. The day begins with an opening joint session in which both parties and their legal advisers are in the same room together. The mediator opens the session by explaining the process, confirming the ground rules, and inviting each party to make a brief opening statement setting out their position and what they are hoping to achieve from the mediation.

The joint session is followed by a series of private caucus sessions in which the mediator meets with each party separately in their own room. During these private sessions the mediator explores each party’s position and interests in more depth, reality-tests assumptions, discusses possible settlement terms and options, and carries information and proposals between the parties. Each private session is confidential: the mediator will not share what a party says in their private session with the other party without being given permission to do so.

The day typically involves multiple rounds of private caucuses as offers are developed, exchanged and responded to. The mediator acts as a shuttle between the parties, managing the flow of information, helping each party understand the other’s perspective, and working toward a set of terms that both sides can accept. Joint sessions may also take place during the day, particularly where direct communication between the parties would be helpful, though many commercial mediations are conducted almost entirely in private sessions.

The Roles of Each Participant

The mediator is neutral and impartial. They do not represent either party, do not make findings of fact and do not impose any outcome. Their role is to facilitate the negotiation, help the parties communicate, reality-test positions and explore whether a settlement is possible. A mediator who takes sides, advocates for a particular outcome or expresses strong views about the merits of the dispute is not performing their role properly.

The parties are the decision-makers. They decide whether to settle and on what terms. No settlement can be imposed on either party without their agreement. This is one of the most important features of commercial mediation and distinguishes it fundamentally from arbitration and litigation. The parties retain control throughout.

The parties’ lawyers, where present, advise on legal issues, help draft settlement terms, and support their client’s negotiation. The appropriate level of lawyer involvement varies depending on the nature of the dispute and the preferences of the parties. In some commercial mediations, lawyers take a relatively active role in the negotiation. In others, the party themselves does most of the talking and the lawyer’s role is primarily advisory. A skilled mediation advocate knows how to calibrate their involvement to what the situation requires. For guidance on this see the chapter on how to prepare strategically and my mediation advocacy page.

How the Mediator Maintains Neutrality

The mediator maintains neutrality by treating each party’s position with equal respect, spending comparable time with each party in private sessions, sharing information between the parties only with the sharing party’s permission, avoiding expressing personal views about the merits of the dispute unless asked to do so in an evaluative mediation, and ensuring that the process is experienced as fair by both sides even where the mediator is testing the realism of one party’s position more robustly than the other’s in any given session.

The mediator’s neutrality is one of the principal sources of their value. Because each party knows the mediator is not working against them, they are willing to share information and explore options in the private sessions that they would not share in a joint session or a contested hearing. This access to each party’s real interests and concerns is what enables the mediator to find settlement possibilities that the parties themselves could not find through direct negotiation.

The Range of Possible Outcomes

Commercial mediations can end in three ways. A full settlement resolves all issues between the parties and is documented in a binding settlement agreement signed before the parties leave. A partial settlement resolves some issues while leaving others outstanding, which may then be litigated or addressed through further negotiation. And a failed mediation produces no settlement, leaving the parties to continue with their dispute through other means.

The vast majority of commercial mediations result in settlement, either at the mediation itself or in the days immediately following. Even where mediation does not produce immediate settlement, it almost always moves the parties closer to resolution by giving each side a more accurate understanding of the other’s position, the real commercial interests on each side, and the realistic range of outcomes that negotiation might produce. For guidance on securing the best possible outcome see the chapter on how to secure the best outcome.

Published Resources

My book Winning in Commercial Mediation: A Business User’s Guide covers the full mediation process in detail, including a comprehensive worked example of each stage of the Whitcombe Family Business mediation and practical action checklists for each phase of the process.

See all books.

Frequently Asked Questions

Do I have to attend the mediation in person?

In-person mediation is generally the most effective format because physical presence facilitates the kind of direct human interaction that moves negotiations forward. However, remote and hybrid mediations by video conference have become common and can work well, particularly where the parties are in different locations or where travel would be impractical. The mediator should discuss the most appropriate format with the parties in advance.

What should I bring to the mediation?

You should bring the key documents relevant to the dispute and your position, any offers or proposals that have been exchanged previously, and anyone whose presence would be useful in the negotiations, including someone with authority to settle. The mediator’s preparatory guidance will usually address what documents and materials should be brought. For detailed guidance on preparation see the chapter on how to prepare strategically.

Can I walk away from the mediation at any point?

Yes. Mediation is voluntary and either party can withdraw at any point if they conclude that the process is not going to produce a satisfactory result. However, walking away should not be done lightly. Courts will scrutinise whether parties engaged genuinely with the mediation process, and a premature withdrawal without good reason may attract adverse comment on costs.

Get in Touch

If you would like to discuss the commercial mediation process for your specific dispute, I would be glad to help.

Call 020 4538 0246, use the contact form below, or book a call directly.

Important disclaimer: This page is provided for general information and educational purposes only and does not constitute legal advice. The content relates to the law of England and Wales only. Always seek independent legal advice from a qualified specialist before making decisions that affect your legal rights or commercial interests. The author accepts no responsibility for any decisions made or outcomes arising from use of this material. If you would like specific advice, contact me here.

Mediation – What Do I Need to Understand About the Commercial Mediation Process?