Business Dispute Resolution: The Exploring Phase of Mediation

Date: 27/11/2017
Author: David Richbell
Company: David Richbell

Greater Manchester Chamber now has its own Business Dispute Resolution service, which can assist you if you're facing a dispute, whether it be commercial or civil.

This is the fourth in a series of six articles on mediation, by David Richbell, a mediator who has been helping parties resolve business disputes over the past twenty-five years. 

The article briefly covers the work needed before the mediation takes place.

So everyone has retired to their room after the opening joint session and the mediator starts a series of private meetings in each room. Hopefully the joint meeting will have established the issues to be resolved to achieve a settlement in the day and a suggested routemap to get there. Mediation is a flexible process, and there may well be smaller meetings or working groups (eg, lawyers only, experts, principals even) during the day. However, the purpose of the Exploring Phase is for the mediator to understand what is behind the claims, what the real drivers are, what is not being said in the exchanged case summaries. In particular, what are the parties NEEDS as opposed to their stated WANTS or claims. It is here that the importance of confidentiality is emphasised for the mediator is encouraging the parties to be frank, even to the point of revealing weaknesses and worries. This underlines the need for the mediator to have quickly established a trusting relationship so the parties, and their advisors, feel certain that their position won’t be weakened and the sensitive information not be passed to the other side.

Parties may have cash-flow issues, reputational issues, supply chain issues, Board room issues, even marital issues, all of which affect a parties needs and their negotiating strategy. Often the dispute has weighed so heavily on a person that it has affected both work and home life. Bringing the dispute to an end can be a prize in itself. If those needs are shared with the mediator by both parties, s/he will be in a uniquely know much that each party does not. Such a unique position means that the mediator can help construct a settlement that meets both party’s needs without revealing confidential information.

And it works! Most mediations settle on the day.

The next article will deal with the Negotiating Phase of mediation.

If this article has made you think mediation could help your business, you can visit www.gmchamber.co.uk/business-dispute-resolution for more information on the Chamber's Business Dispute Resolution service.