Unlike a judge or arbitrator, the mediator does not decide who wins. The parties retain control over whether they settle and, if they do, the terms on which the dispute is resolved.

Commercial disputes are about more than the legal claim

A commercial dispute may be framed in pleadings, correspondence or contractual terms, but the real obstacles to resolution are often driven by wider considerations. There may be historical issues, an ongoing business relationship, family or shareholder dynamics, confidential information, reputational concerns, management time, cash flow, future trading arrangements or many other issues that lie outside the immediate framing of the dispute which a court or an arbitrator could never fully address.

Mediation creates a confidential setting in which the parties can consider the legal dispute alongside those wider commercial or personal interests. It can therefore open up possible outcomes that litigation or arbitration may not be able to provide.

What kinds of commercial disputes can be mediated?

Mediation Rescue can assist with a broad range of civil and commercial disputes. The experience within our mediation practice includes commercial contract claims, company and boardroom disputes, disputes between founders and investors, partnership and LLP disputes, restrictive covenant and confidential information claims, business tenancy and property disputes, professional negligence matters, sports-related disputes and cases in which employment and commercial issues overlap.

The value of the dispute is not what determines whether mediation is useful. Antony Sendall’s mediation experience includes commercial claims ranging from disputes worth a few thousand pounds to multi-million-pound matters, as well as an exceptionally large multi-party dispute in which the parties were more than £250 million apart at the time the mediation started.

Family businesses, shareholders, founders and business partners

Some of the most difficult commercial disputes involve people whose relationships extend well beyond a contract. Family members, co-founders, shareholders, directors and business partners may have years of shared personal history alongside substantial financial and other commercial interests.

Recent Mediation Rescue instructions have included the successful co-mediation by Antony Sendall and Alan Dillon of a multi-million-pound dispute between family members concerning the management and division of a substantial property portfolio inherited from their late father. The matter illustrates the value of a process capable of addressing commercial, financial and relationship issues together.

This kind of dispute can be particularly well suited to mediation because the parties can explore practical and creative arrangements that go beyond the remedies available through a contested court judgment.

When should a commercial dispute be mediated?

There is no single point at which mediation becomes appropriate. It can take place before proceedings are issued, after formal correspondence has clarified the issues, during litigation, after disclosure or witness evidence, or as trial approaches.

In general, early use of mediation brings the greatest benefit and may substantially reduce legal cost, management time and the risk of positions becoming increasingly entrenched. In the vast majority of cases, mediation is more likely to be successful if carried out sooner rather than later. There is an unfortunate tendency for parties to litigation to believe that it is too early to mediate and that the circumstances will not be right until after pleadings or after disclosure or after exchange of witness statements or after some other event. This is hardly ever true. The parties are familiar with their own case and if there are questions that need to be answered by the other party, they can be asked in the course of the mediation. Indeed, it is often more powerful to ask the difficult questions across the mediation table.

How is Commercial Mediation different from litigation or arbitration?

Litigation and arbitration are adjudicative processes. Ultimately, a judge or arbitrator decides the dispute. Mediation is a facilitated negotiation. The mediator helps the parties examine positions, risks, interests and possible solutions but does not seek to impose a settlement.

That distinction creates great flexibility. A mediated agreement might include revised commercial arrangements, staged payments, future trading terms, transfers of assets, agreed communications, confidentiality arrangements or other practical solutions that would not be possible outcomes from a court judgment or an arbitration decision.

If agreement is not reached, the mediator does not determine the dispute. The parties remain free to continue with litigation, arbitration or another available process, subject to their legal position and any applicable procedural requirements.

A Commercial Mediation process designed around the dispute

We do not assume that every commercial dispute needs the same mediation format. We build the process around the dispute, the parties and the stage the matter has reached.

Before the mediation, the mediator will normally receive concise information about the dispute and speak with the parties or their advisers about preparation and logistics. On the mediation day, discussions may take place jointly, privately with the mediator, or through a combination of both.

Almost all disputes benefit from an early joint discussion. Most mediations are more effective when the parties are in the same room discussing the issues face to face for most of the time. Private meetings with or without the mediator present are often an essential part of the process, particular if offers are made and need to be considered in detail in private session. However, there are also occasions where mediations are more effective by being conducted mainly through private meetings. Multi-party or relationship-heavy disputes may require an even more flexible structure with parties meeting in groups or sub-groups with or without a mediator present. The mediator’s task is to create the conditions in which meaningful negotiation can take place, while leaving the ultimate decisions with the parties.

Co-mediation for complex commercial disputes

Co-mediation is a distinctive part of the Mediation Rescue approach and is not confined to workplace disputes. Antony Sendall and Alan Dillon are both accredited Civil & Commercial Mediators, and all three Mediation Rescue directors have extensive experience of co-mediating complex disputes.

Two mediators bring two pairs of eyes and ears to the same situation. No two mediators have exactly the same experience, instincts or mediation style, so co-mediation broadens the perspective available to the process. In a complex commercial dispute, one mediator may notice a dynamic, concern or opportunity that another perceives or approaches differently.

It can also create a richer feeling of discussion rather than adjudication. Instead of a single mediator appearing to preside over the process, two mediators can create a more conversational dynamic while still providing structure and focus.

Two mediators, one fee. Where Mediation Rescue provides co-mediation as part of our normal service, the mediation fee is not increased simply because two mediators are involved. We sometimes describe this, with a little licence, as our “buy one, get one free” approach.

There may be cases requiring a different fee arrangement because of their scale, duration, travel or other unusual requirements. Any fee would be agreed in advance.

Why does the mediator’s experience matter?

A commercial mediator needs to understand a dispute quickly without taking over the parties’ decision-making or acting as their legal adviser. Relevant legal and commercial experience can help the mediator identify the real obstacles to settlement, understand the significance of proposals and ask questions that help the parties test their positions. However, it is a myth that subject-matter expertise is a core requirement for a mediator. The reason that two experienced commercial parties with expert legal advice have been unable to resolve a conflict is rarely connected to the subject-matter of the dispute itself. It is much more likely to be the result of other factors. A mediator with good mediation skills is much more useful than one who has technical expertise in the underlying issues.

Antony Sendall was called to the Bar in 1984 and first became accredited as a Civil & Commercial Mediator in 2008. Although best known as an employment law specialist, his professional experience has a substantial commercial dispute-resolution base across public and private sector organisations and a wide range of industries. His experience includes contractual, company, boardroom, founder and investor, insolvency, partnership, professional negligence, sports and business-protection disputes.

Alan Dillon is also an accredited Civil & Commercial Mediator and brings a strong business background, including experience in establishing and growing recruitment businesses. Mediation Rescue already has relationships with a number of associate mediators and plans to expand its commercial panel of mediators in the near future.

Where commercial and employment disputes overlap

Some disputes do not sit neatly in either a commercial or employment category. Departures of directors or senior employees, team moves, restrictive covenants, confidential information, founder disputes and disagreements involving senior executives can generate both workplace/employment issues and commercial issues.

Mediation Rescue’s combination of civil and commercial, workplace, community and employment-law experience can be particularly useful in these cases. It allows the process to address the commercial dispute without overlooking the relationships and human dynamics that may be driving it.

A wider mediation toolbox

Experience across different forms of mediation can matter. Workplace and community mediation often involve different techniques and dynamics from conventional Commercial Mediation. Mediation Rescue draws on that broader experience rather than treating Commercial Mediation simply as shuttle negotiation between fixed positions.

The aim is resolution. That can involve examining apparently entrenched positions, understanding what sits behind stated ‘bottom lines’ and encouraging the parties to think creatively about possible outcomes. The process remains impartial and party-led, but it need not be passive. The outcomes are often limited only by the imaginations of the participants and what is factually possible.

Frequently asked questions

Do solicitors or barristers attend Commercial Mediation?

They often do. Legal advisers can play an important role in preparing the case, advising their client during negotiations and documenting any settlement. However, mediations tend to be more effective when the legal advisers attend to give advice rather than to be the mouthpiece for their clients.

Does agreeing to mediate mean conceding the case?

No. Parties can maintain their legal positions while exploring whether an agreed commercial solution is preferable to continuing the dispute. All mediations are undertaken on a confidential and without prejudice basis.

Can mediation take place before court proceedings?

Yes. Mediation can take place at any stage, whether before proceedings are launched, during litigation or sometimes after judgment has been given, where there are outstanding issues such as quantum of damages or possibly an appeal. In general terms, mediation tends to be more effective the earlier it is undertaken.

Can Commercial Mediation take place online?

Yes. Commercial Mediation can be conducted in person or online or even in a hybrid format, and the appropriate format can be chosen to suit the parties, advisers and dispute. Mediation is an incredibly flexible process and can be adapted to meet the needs of the participants.

Can more than two parties take part?

Yes. Commercial Mediation can be adapted for multi-party disputes. The structure may need additional preparation and a more flexible combination of joint and private discussions.

Why might we use two commercial mediators?

Co-mediation brings two sets of experience and two pairs of eyes and ears to a complex dispute. It can broaden perspective and create a more conversational dynamic.

Does co-mediation cost twice as much?

No. Where Mediation Rescue provides co-mediation as part of our normal service, we do not increase the mediation fee simply because two mediators are involved.

What happens if the dispute does not settle?

The mediator does not decide the case. If no settlement is reached, the parties remain free to continue with litigation, arbitration or another available process, subject to their legal position and procedural obligations.

Discuss a commercial dispute with us

Solicitors, in-house counsel, businesses and individuals can contact Mediation Rescue for an initial discussion about whether mediation is suitable, how the process could be structured and which mediator or mediation team would best fit the dispute.