63 Goldstone Crescent
Brighton & Hove
Mediation of commercial disputes
Mediation is a process in which parties to a dispute agree to meet under the chairmanship of a neutral mediator to explore, off the record, whether settlement of their dispute is possible on acceptable terms, or whether they would prefer to continue to have it decided by a judge or arbitrator or by some other means.
We always advise parties to sign a mediation agreement so as to maximise the confidentiality of the mediation process and to define any limitations on confidentiality as precisely as possible (for instance in a workplace dispute). We want people who participate in mediations to feel as safe as possible to exchange views and proposals for settlement, without fearing that these might count against them in the future, or be used in any other way except where disclosure has been specifically agreed.
We are used to tailoring the design of every mediation to suit the needs of the parties. Some involve extended meetings at which all are present together throughout. Some may not involve a joint meeting at any stage between those attending. The majority of our mediations involve a mix of private and joint meetings, with all the parties meeting together at some stage, usually, but not always, soon after the mediation day starts. Later joint meetings may involve all or some of each team. We will always consult with and advise parties about process options.
We are not advisers on the merits in our mediations. We welcome and value the role played by each party’s legal team and defer to them as the source of advice for their clients as to their prospects of success and what the risks may be in succeeding or not before a judge, arbitrator or other decision-maker. Our role is to help to test out each party’s position in private from a neutral standpoint and to let each party and their advisers decide whether to settle or not, and on what terms.
Commercial disputes in which we have experience built up over two decades include:
We each provide a full service when acting directly as mediator for clients: liaising with parties and their lawyers on a confidential basis as to how to prepare well for a mediation; over venue requirements and arrangements; timetabling and conduct of the mediation. We will submit a draft mediation agreement for advance approval by each party. We will also follow up after the mediation as required. Our basis for charging is agreed at the outset and our fees are payable before the mediation day. For fuller details of our terms and fees, see the Fees Guide in this website.
Ethical standards and complaints handling
Whatever the process, we contract in every agreement to observe the CEDR Code of Conduct for Third Party Neutrals, which assures our clients of our independence, neutrality and commitment to the parties in our work; confirms our professional indemnity insurance cover of £5,000,000 each; and sets out the complaints process for any dissatisfaction which may arise from our work as mediators. If you have any concern or complaint abouit our services, please tell either of us frankly and we will endeavour to answer your concerns. Otherwise, for independent handling, please contact the Chief Operating Officer, CEDR, INternational Dispute Resolution Centre, 70 Fleet Street, London EC4Y 1EU telephone 0207 536 6000 or e-mail email@example.com.
Other available processes:
Increasingly, businesses and boards are using this service. The value of having a neutral chair to assist with a difficult meeting of a board of directors, partners, department members or committee members in an organisation is often under-estimated. Inviting an external neutral chair to run such a meeting adds credibility to the occasion, minimises concerns about its being dominated by anyone, and frees everyone to make a full contribution. When acting as a neutral chair, we each seek to define the objectives of the meeting early and clearly, and we then ensure that such objectives are delivered so far as possible.
We both have considerable experience of chairing meetings involving delicate and difficult conversations between opposing parties with legal and personal disputes or differences, so that these can be effective and constructive. Even where no proceedings are contemplated, we have chaired such diverse groups as:
We encourage participants to talk together, share information, increase understanding, overcome misunderstandings, pool ideas and then to decide next steps.
Examples of neutral chairing
- running a meeting in an academic institution between dissatisfied faculty members, the senior management team and national trades union representatives, to convey information and handle questions and explanations
- assisting the MD of a family manufacturing business to reshape the way the board of management was operating and to resolve a long-standing clash between two of the board members. In order to prepare the Board for changes and to allow all members to participate in the decision-making, the MD stepped down from chairing some of the meeting, and the plan was presented to the Board in advance so that everyone understood the rationale and agreed to the use of a neutral chair
- chairing a meeting between equal shareholders in a medical business who were deciding whether to continue in business together, or to split up and on what terms
- leading a meeting between a local authority Social Services Department and a user to discuss differences over the care of a client with severe learning difficulties, where communications between department and client had broken down.
Heather Allen has been in demand for many years as a facilitator for groups engaging in discussion, decision-making, policy development, team building or strategic planning. As a facilitator she:
- learns about and understands the context, sometimes through telephone calls, sometimes using a fuller process of briefing and consultation
- helps organisations or participants to clarify their objectives and defining the purpose of such events and then designing the process used, so that the success of outcomes can be measured in some way
- devises processes to achieve defined objectives whilst remaining flexible to the need for the process to be modified or changed as the discussion develops
- uses facilitation techniques, communication methods, process management, conflict management, and analytical and strategic skills
- continues to learn throughout - about the context, about what is important to people, and about what process approaches might be best employed to develop possible ways forward
- brings the focus back to the key objectives whilst not closing down discussion too early, thus valuing the contributions and views of all participants.
Some examples of Heather's facilitation projects:
- running a strategic planning process
- devising a process consistent with the organisation’s core principle that all decisions must be by consensus (using a particular model for dealing with disagreement)
- running a multi-agency joint event to improve communication in the light of government strategy for service users
- managing one-to-one meetings with CEO and Chair who had reached an ‘impasse’ [their word]
- working with a new Consultative Council (involving a wide range of staff plus Directors) to clarify the scope of the task, methods of communication, behaviours for full participation and priorities for action - in particular how to handle the inherited hierarchy
- away-days for teams and boards – for planning purposes and sometimes just for fun, to deepen relationships and improve morale!
Seminars on mediation law and practice
Tony Allen is an acknowledged expert in the field of mediation law and and its place within civil law and procedure. His book Mediation Law and Civil Practice was published by Bloomsbury Professional: in 2013, and he also co-authored The ADR Practice Guide: Commercial Dispiute Resolution with Karl Mackie, David Miles and Bill Marsh (Tottel: 2007), two of the standard texts on this topic. He has also written frequently for the legal press and has had many articles published on the CEDR website, for which he devised the EDR Law Library of reported cases relevant to mediation. His writing, coupled with his long experience of mediation practice, qualifies him to deliver seminars tailored to the needs of law firms, Law Societies, barristers’ chambers, insurance and other commercial companies and local and central government departments on mediation and related topics. He has been delivering such seminars for nearly twenty years. He has delivered seminars to University Law Departments in Cambridge, UCL, Imperial College, LSE, Birkbeck College and Westminster. He has been a lead member of CEDR's Training Faculty since 1998, during which time he has trained a huge range of professionals in mediation skills.
Heather Allen, who is the current Head of CEDR's internationally renowned Training Faculty,. has spoken at many seminars to law firms and mediation conferences about the uses of mediation, its practical application and ways of running mediations effectively as mediators and party representatives, as well as being in demand internationally as a leading trainer of mediators across Europe, Afica, Asia and America.
As mediation maybe moves towards the status of a distinct profession, with possible implications for quality assurance and compliance, Heather Allen (based upon her long experience of mediating and training mediators)is available for coaching, peer review, mentoring and supervision for individual mediators and in-house mediator teams, on terms to be agreed.