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Civil and Commercial Mediation is the term used to describe disputes that occur between individuals, businesses or organisations and would, if not resolved at mediation, likely end up in the courts. They are often grouped together as the services operate in a similar way and often deal with both types of disputes.
This is the most popular form of mediation and also the most lucrative career path for aspiring mediators. If you want an immersive learning experience then we have a number of options for you to choose. If you're new to the field of commercial mediation then this short commercial mediation insight course is a good place to start. Within two hours you'll gain a thorough understanding of the skills and process and experience mediation in action. If you want to build on that knowledge and gain your first stage certificate then this 6-hour Introduction to Commercial Mediation which leads to our Foundation Certificate will prepare you well.
Civil and commercial mediations are often triggered when the dispute is quite advanced, even though in some countries lawyers are obliged to advise their clients to consider mediation before they issue court proceedings.
Usually the lawyers will agree to go to mediation and hire the mediator, though sometimes a court can recommend or even direct that parties go to mediation. This can be the case especially if one of the parties is reluctant to mediate.
The mediation will take place in person, online, or in a combination of both and usually, though not always, the main part of the mediation will take place on one day. Parties typically have their lawyers with them, and sometimes other experts or advisers.
In large commercial cases, there can be quite a few people involved in the mediation, with companies sometimes sending one or more representatives, and a variety of advisers. In some cases there may be an entire team of lawyers involved and senior and junior barristers.
In these cases the mediator will need to be skilled in managing multiple parties and it's not uncommon to see two mediators working side-by-side in what's called a a co-mediation model. We'll come onto this shortly.
The agreement that is reached in commercial mediation is usually called the mediated settlement agreement, and has legally binding status. Sometimes, it might need to be brought back to a court to be rubber stamped, but the lawyers involved in the process will ensure that it is drafted in a format that will be enforceable.
Sometimes two heads are better than one, and this is the case in mediation as well.
In co-mediation, two mediators work together on a dispute. This usually happens in three particular contexts:
This video below features two top commercial mediators, Tat Lim from Singapore and Geoff Sharp from New Zealand as they reflect on a case they co-mediated together.
The most important thing to understand about co-mediation is that the mediators work together, equally for both parties. Parties can sometimes think that one co-mediator is “theirs” and the other one there for the other party but this is a misconception. Co-mediators are both neutral and impartial, and work together very closely, even if they might meet with parties separately.
It's crucial for co-mediation teams to know each other well and work well together.
A good co-mediation team can model collaborative behaviour to parties and help with communication.
Family mediation usually means the mediation that takes place when a couple have decided to separate or divorce, and need to make arrangements in relation to their property and finances, and in particular their children.
It's different to relationship counselling, in that it is only appropriate when the relationship is at an end and the parties have gone their separate ways.
Family mediation often takes place before court proceedings are brought, or to avoid going to court at all. Sometimes couples will go to mediation even before they consult lawyers, usually to minimise the cost of separation. Many will be advised by their lawyers or other professionals to consider mediation, particularly where there are children involved.
The advantages of mediation in family disputes go beyond cost and time savings, as it is very important for the wellbeing and the future of the children of the relationship to minimise the conflict arising out of the end of the relationship. Mediation can help do this by focusing on the best interests of the children and the future, rather than on blame and entitlement.
Rather than taking place over one day, family mediation usually happens over a series of shorter sessions over a period of weeks or even months. This is because it can be hard work and emotionally draining for the parties, and they will usually have to gather additional information or take legal advice in between sessions.
The parties lawyers do not usually attend mediation sessions, but are consulted before and in between to give advice on rights and obligations and, later on in the process, on options and offers.
An important part of the process is the pre-mediation screening meetings, which take place separately. These are essential to give the mediator the opportunity to talk to each party alone and ensure that they are not being subjected to any domestic abuse, coercive control or any other circumstance of dynamic that might put them at risk or compromise their ability to advocate for themselves in mediation.
If there are property and financial issues to be agreed, the process will likely involve some form of financial disclosure. This is usually done on an “open” document, that is, one that is outside the normal confidentiality of the mediation process. This is because it may need to be shown to a court in order to formalise the agreement, or it may require verification.
The agenda for family mediation is set by the parties, with the mediators assistance, and can be a very broad one ranging from property, financial support and inheritance rights to contact with children, their education, contact with extended family and living arrangements.
Settlements reached in family mediation usually require some additional formalisation. What form this takes depends on the law of the country where it is taking place, and the individual circumstances of the parties. For example, a settlement made in the context of a divorce will also require the formal dissolution of the marriage which may require a court order. If a couple were just living together without being married a different process can be used.
It is not usual for a court to have to “rule” or approve a settlement, particularly where children are involved as there is usually a requirement to ensure that “proper provision” is made for both parties and any children before granting a divorce or separation.
Where changes are being made to mortgages or other financial arrangements with banks additional formalisation may be necessary to meet their requirements.
Training to become a family mediator can be challenging but can lead to a very rewarding career.
Family mediation is often a painful and difficult process, the end of any intimate relationship brings intense emotions and often trauma with it. This can be compounded by the financial impacts of the relationship breakdown, and the impact on children and the wider family.
As a result, parties may bring a lot of emotions to the mediation process, including anger, hostility, upset and grief. The mediator will require a high level of training to manage this, while also addressing finances, property and family arrangements, and keeping the best interests of any children front and centre of the process.
As a result, it is usual for family mediators to have to undertake additional training beyond their mediation training. This training will address topics like family law, financial planning and management, couple dynamics, managing emotions and, very importantly, screening for domestic abuse or coercive control.
Workplace mediation is generally aimed at resolving conflicts and improving working relationships within an organisation.
The focus is on addressing specific workplace issues, such as interpersonal conflicts, communication breakdowns, team dynamics, or disputes arising from organisational changes. The ultimate goal is to restore a productive and harmonious work environment.
It differs somewhat from mediation in employment disputes in that the latter is often used when the employment relationship has fundamentally broken down, and a claim has been taken, for example for unfair or constructive dismissal or under equality legislation. Workplace mediation, if successful, can prevent conflicts from escalating to this level. If you want to learn more about employment mediation then this take a short immersive course like this Introduction to Commercial Mediation where you will gain in-depth knowledge of the skills and process models used in employment mediation.
Workplace mediation deals with conflicts and disputes between employees, between employees and supervisors/managers, or between different departments or teams within an organisation. The disputes may relate to relevant employment laws and regulations or arise out of poor interpersonal relations. The mediator may have an understanding of employment-related issues, such as discrimination, harassment, bullying, or breach of employment contracts.
In workplace mediation, the parties involved generally have an ongoing employment relationship. The aim is to preserve the employment relationship and find resolutions that enable the parties to work together effectively. The mediator may focus on long-term solutions that promote collaboration and prevent future conflicts. The mediator will meet with the parties separately and in joint sessions, and may bring other members of the organisation into the process if that is helpful.
The mediator may also consider the broader impact of conflicts on the organisation. They may address the organisational culture, values, and goals while assisting the parties in reaching a resolution. They may explore solutions that align with the organisation's interests and seek to improve overall workplace dynamics.
If a dispute has escalated to the point that legal proceedings, or a complaint or grievance have been filed, the mediation works in a similar way to how they do in any other civil dispute, but the goal here is likely to be reaching a settlement, often of a financial nature, and ending the working relationship.
Community mediation is used in situations like neighbour disputes, where neighbours are in conflict over issues like boundaries, barking dogs or other nuisances, and bigger disputes where whole communities, or sections of them, may be involved.
The process in community mediation is often less formal than in other contexts, and there are less likely to be lawyers involved unless the parties have already taken legal proceedings. Joint meetings are common, though the mediator might meet with the parties separately too.
Community mediation services are often run by volunteers, and therefore free to users. It is common for co-mediators to work with parties in community mediation.
The skills used by the mediators are the same as in other types of mediation, though they usually address behavioural and communication issues more than financial ones.
The agreements resulting from community mediation tend not be legally binding and rely mostly on the commitment of the parties to work towards improving their relationship and putting an end to the conflict.
Community is often a great way for newly trained mediators to gain valuable experience, practice their skills and give back to their community.
Consumer disputes are among the most common and frequent these days, due to the enormous numbers of consumer transactions carried out every day, especially online. You might already have noticed that some of the consumer transactions you have entered into include references to dispute resolution policies.
The distinguishing factor about consumer disputes is that there are very many of them, and they are often of comparatively low value. The value of the transaction may not seem low to the consumer, but it is usually lower than will justify the cost of a standard mediation process.
As a result, a different type of process is needed. Technology has played a large part in giving consumers access to quick and efficient dispute resolution. These solutions may involve human mediators or arbitrators using technology to help the parties reach a solution, or may use technologies like artificial intelligence to reach solutions without any human input.
eBay, for example, use a type of “bling bidding” technology to deal with its numerous small disputes between its users.
The video below is clip from the person who actually developed the online dispute resolution system that eBay now use.
There are several EU laws regulating consumer dispute resolution generally, and online dispute resolution specifically. One of these, the EU ODR Directive, puts an obligation on Member States to give consumers access to a cross border dispute resolution platform.
It is likely that automated and online dispute resolution become more prevalent and are used in many more types of disputes as technology, especially AI, becomes more developed in this area.
Before the Covid-19 pandemic online mediation, that is mediating remotely via video, was a distinct mediation service, usually only offered in cases that had a cross border element where one or both parties could not travel. Some mediation services, particularly those funded by the State, also offered telephone mediation.
All that changed during the pandemic where, like many other services, mediation went online. Overnight, practitioners in almost all mediation services had to learn how to use platforms like Skype, Zoom and Microsoft Teams to carry out mediation during lockdowns.
This required rapid up-skilling, with mediators (and parties) having to learn how to use the technology and, more importantly, how to manage mediation in an online environment. Mediators had to learn new communication skills, new process structures and how to manage challenges such as confidentiality.
A lot of mediation has moved back to the face to face setting since the end of the pandemic, but online mediation is and will likely remain much more common and popular into the future. It is particularly useful for international and cross border disputes, as businesses will now think twice about incurring the cost of everyone travelling for mediation.
It is also much more common for part of the mediation process, usually pre-mediation and sometimes follow up, to take place online, even if the main part of the mediation happens in person.
It is important that anyone wanting to train and practice as a mediator also learns about managing communication in an online mediation, how to structure an online process, avoid any pitfalls and is confident in using the relevant technology.
Selecting a mediator depends on the type of dispute and the context in which mediation is happening.
Some countries, for example, have court connected mediation programmes, where the parties are referred to a mediator from a court list - usually whoever is available.
Free or State funded services, such as those discussed above in the context of community mediation, will have a panel and mediators are assigned to cases as they arise, so again the parties don’t choose the mediator as such, though they might choose the service.
In civil and commercial mediation, the parties’ lawyers usually select the mediator.
Lawyers who work in dispute resolution will often have a list of mediators they know and trust whom they use regularly. The choice of mediator does however have to be agreed by both sides, so when this is difficult, each lawyer might propose three mediators of whom one is selected and agreed by both parties’ lawyers. Where a mediator cannot be agreed at all, there are bodies or individuals, such as the President of the Law Society, for example, who can nominate a mediator who they believe is suitable.
In family disputes or other disputes where lawyers have not yet been engaged, the parties will research and select a mediator themselves, again by agreement, which can sometimes be tricky to obtain. Parties will search for mediators on the lists or websites of mediation organisations or chambers, or specialist association for mediators specialising in certain types of disputes. Some will try to find a mediator through word of mouth, though this is not as common as many parties to conflict are slow to admit that they are seeking helping to resolve a dispute.
The most important things to consider when selecting a mediator are ensuring they are suitably qualified and experienced in dealing with the type of dispute that you have, and that you will be able to trust them. A mediator can be highly qualified and experienced but if you don’t like them or feel like you can’t talk to them the mediation will not likely be successful.
Mediation is an unregulated or self-regulated profession in most countries, so it is advisable to choose a mediator who is a member of an organisation which has professional oversight, and that they subscribe to and are subject to a Code of Practice and Ethics.
The mediator should also have professional indemnity insurance.
A mediator does not have to be a lawyer, and if they are, they will not be allowed to give any legal advice or carry out any other legal activities in the mediation. They will have the advantage of understanding what the alternatives to mediation look like, and might understand the legal aspects of the dispute. Non lawyers mediators, on the other hand, can bring the perspectives of their experience and qualifications, and are generally less likely to focus on the legal aspects of the dispute to the exclusion of other, non-legal factors.
It is the mediation training and qualification, however, that is more important than the profession of origin. In mediation training, more is usually more, and it is desirable that a mediator has undergone some training in conflict theory and dispute analysis, as well as mediation. A good mediator will also continue to train and learn, irrespective of how experienced they are.
Where mediation fees are charged, so outside of free or State funded services, it is common practice for the parties to share the fees equally, unless they agree otherwise at the outset or in any agreement resulting from the mediation. In some cases, such as workplace mediation, the employer may pay all the fees. This can also sometimes happen in a dispute between a large corporation and an individual, where there is a financial imbalance between the parties.
This is provided for by law in some countries, and is generally a good idea as it means that both parties are equally financially invested in the process. Fees are usually charged on a per day basis for civil and commercial mediation, and on an hourly or session basis for family and other types of mediation. For civil and commercial mediation, many mediators will require payment, or at least partial payment up front. There may be additional costs such as venue hire and food as well. The mediator should record all the terms of payment and what costs are included in the agreement to mediate.
Some countries have some financial supports for mediation fees. In England and Wales, for example, there is a voucher scheme for family mediation where a certain amount is available to pay for mediation fees.
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