Commercial Mediation
Commercial disputes can disrupt business operations, damage relationships and absorb valuable management time in addition to having substantial cost implications. Mediation provides a confidential, commercially focused forum for resolving disagreements while protecting future interests.
Our principal mediator, Nick Cheshire brings extensive commercial, legal and negotiation experience to each mediation, having worked in-house as an international commercial contracts manager for major multinational organisations including Thales Group. During his corporate career, Nick Cheshire negotiated and managed high-value, complex commercial agreements across a wide range of jurisdictions. He has extensive experience as a negotiator coupled with an excellent knowledge of contract law and Incoterms. Nick has also worked for several international law firms focusing on contract, commercial and intellectual property law. He is additionally a member of the World Commerce and Contracting Association and a qualified International Mediation Institute mediator. Nick brings this extensive knowledge and experience with him into each mediation.
If you would like to instruct Harbour Mediation or would like to discuss your matter in confidence to determine if mediation is a suitable option, please contact us.
Mediation for contract and commercial disputes
Contract and commercial disputes can have a broad range of impacts on your business, often causing financial loss, damaged relationships and potential litigation. Mediation offers a practical and cost-effective way to resolve these disputes by bringing both parties together to explore commercially viable resolutions, preventing the time, cost and reputational damage of court proceedings.
Mediation for contractual debts and invoices
One of the most common forms of disputes arises when invoices and debts go unpaid causing financial strain on your business and potentially damaging impacts on business relationships.
Early intervention through mediation provides an opportunity to discuss and evaluate payment proposals, maintain important business relationships and explore legally binding contractual arrangements.
Mediation for international commercial and contract disputes
International contract disputes can be legally complex and commercially sensitive. Business reputations and relationships are hugely valuable commodities and disputes can be extremely costly. Mediation offers a confidential forum within which to explore constructive resolutions to even the most complex disputes, saving time, costs and ensuring matters are kept confidential. Our principal mediator, Nick Cheshire is an International Mediation Institute Qualified Mediator with more than 20 years of international commercial and legal experience. Skills and experience he brings with him into every mediation.
Mediation for professional services and agency agreement disputes
Disputes with professional service providers or agents working on your behalf can cause substantial upheaval, damaging important relationships and impacting costs and profits.
Mediation allows you to explore the best way forward commercially, enabling businesses to minimise time away from the office and avoid the lengthy and expensive impacts of potential litigation.
How to Prepare for a Commercial Mediation: A Guide for Businesses, Directors and Legal Advisors
Prepared by Nick Cheshire, Commercial Mediator
Good preparation can make a real difference to how a commercial mediation unfolds. You do not need to predict the outcome or have your entire negotiation mapped out in advance. The purpose of mediation is to create an opportunity for constructive discussion and explore whether a mutually acceptable resolution can be found.
The most useful preparation is to arrive knowing your position, understanding the key issues, being familiar with the important documents and, importantly, being ready to listen and consider options.
Mediation is confidential and without prejudice, providing a private environment in which parties can have open discussions about the dispute and explore settlement options without those discussions generally being used in subsequent proceedings.
1. Clarify what you're trying to resolve
Before the mediation, identify the key issues in dispute and be clear about what each side says has happened.
Consider what you are actually trying to achieve. There may be several issues to resolve rather than simply a dispute about money. For example, you may need to address contractual obligations, future working arrangements, delivery of services, ownership of assets or intellectual property, or the continuation or termination of a commercial relationship.
It can be helpful to separate what you would ideally like from what you actually need. This distinction can create more scope for constructive negotiation and help you recognise potential solutions that may not have been obvious at the outset.
2. Know your key documents
Be familiar with the contracts, correspondence, invoices, financial information and other evidence that are most relevant to the dispute.
You do not necessarily need to have every document at your fingertips, but you should know where the important information can be found and be able to explain the key points clearly.
If the history is complex, prepare a short chronology. A simple timeline can help everyone understand how the dispute developed and can also help identify where there may be common ground or areas of disagreement.
For legal representatives, it is useful to ensure that the client understands the important documents and the strengths and weaknesses of their position before the mediation begins.
3. Understand the commercial position
Consider the wider commercial consequences of continuing the dispute.
The real cost of a dispute is not necessarily limited to legal fees. Consider management time, disruption to the business, the impact on employees or customers, uncertainty, cash flow and the potential damage to an ongoing commercial relationship.
Against this, consider what a negotiated settlement could offer. A settlement may provide certainty, allow the parties to move forward and avoid the continuing cost and distraction of litigation.
Understanding the commercial reality can help you approach the mediation with a broader perspective than simply asking who is right or wrong.
4. Know your alternatives
Think realistically about what happens if the dispute does not settle at mediation.
What is the likely timescale? What further costs will be incurred? What are the risks of continuing? What might the eventual outcome look like, and how certain is that outcome?
It is equally useful to consider the other side's position. Understanding their alternatives, pressures and commercial interests may help identify areas where a settlement could be constructed.
You do not have to abandon your position to negotiate. Effective mediation involves understanding the risks and alternatives sufficiently well to make informed decisions about what you are prepared to consider.
5. Agree authority and parameters
Make sure everyone attending the mediation understands who has authority to negotiate and, importantly, who has authority to settle.
If there are financial limits or other parameters within which you need to negotiate, these should be fully understood before the mediation starts.
If settlement requires approval from someone who will not be attending, establish in advance how quickly that approval can be obtained. Delays in obtaining authority can unnecessarily interrupt momentum at a critical stage of the day.
For legal representatives, it is also worth considering the practical steps required to document an agreement if one is reached. Having an appropriate settlement agreement or draft settlement documentation prepared and readily available can save valuable time on the day. This does not mean that the terms need to be agreed in advance; it simply means that the parties can move efficiently to recording the agreement once a resolution has been reached.
6. Prepare to listen, not just negotiate
Mediation is not simply an opportunity to put forward your arguments. It is an opportunity to understand the dispute from the other side's perspective and to explore whether there is a way forward.
Be prepared to ask questions, listen carefully, reassess assumptions and explore options.
Understanding why the other side holds their position can sometimes be as valuable as understanding what that position is. There may be commercial concerns, misunderstandings or priorities that are not apparent from the pleadings or correspondence.
Because mediation is confidential and without prejudice, the process provides an environment in which parties can explore possible solutions and have constructive discussions that may not be possible in the normal course of the dispute.
7. Arrive ready to decide
Bring the right decision-makers, key documents and relevant financial information.
Make sure your negotiating authority is clear and that everyone understands the practical arrangements for the day. If the mediation is taking place online, test the technology beforehand and ensure that everyone knows how to join.
Most importantly, arrive prepared to make decisions.
A mediation may involve several stages and the final resolution may look different from what either party expected at the beginning. Being prepared to consider options, reassess your position and make informed decisions can give the mediation the best opportunity to succeed.
Practical checks
Before the mediation, confirm:
Location or online meeting link
Technology and connectivity
Mediator's contact details
Who will attend and their roles
Negotiating and settlement authority
Access to key documents and financial information
The process for obtaining any additional approval if required
For legal representatives, appropriate settlement documentation or a settlement agreement template
The Day Before: A Final Check
Before the mediation, ask yourself:
→ What are the three things I want the mediator to understand about this dispute?
→ What are the three things I need from a settlement?
→ What am I now prepared to consider that I was not prepared to consider at the outset?
→ What are the consequences if the dispute does not settle?
→ Am I genuinely prepared to negotiate?
A mediation does not require you to arrive knowing exactly what the outcome will be. It requires you to arrive prepared to have a constructive conversation and to consider whether there is a better way forward.
Download Guide here
Constructive. Confidential. Forward Focused.
The mediator's role is not to decide who is right or wrong. The mediator helps the parties communicate, explore the issues and consider options for resolution. The parties remain in control of whether an agreement is reached and, if so, what that agreement looks like.
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