Commercial disputes are like office romances – a regrettable fact of life. Your priority as a business or HR leader is to ensure they don't get out of hand and wreak havoc on your bottom line.

But dispute resolution doesn't have to mean a day in court. In fact, court proceedings are actively discouraged, not only in the UK. More and more, companies turn to commercial mediation as a form of alternative dispute resolution (ADR).

Calling in mediation lawyers can be faster, cheaper and less stressful than an all-out legal battle. Your mediator's goal is to resolve the dispute in formal, confidential negotiations before it has a chance to escalate.

Whether you're tussling over the wording of a contract, a project delay or interpersonal problems, a commercial mediator can help to steer your ship safely back to harbour.

But what, exactly, are the powers of a commercial mediator – and how are they different from a judge's?

What is a commercial mediator's role?

A commercial mediator's watchword is "facilitate" – and this word tells us a lot about the difference between a mediator and a judge.

A judge doesn't facilitate. A judge weighs evidence. A judge decides. A judge sentences.

A mediator, on the other hand, will never tell one of the aggrieved parties that they have a strong case or that they're on a hiding to nothing. Instead, they use their skills and techniques to help the parties see each other's position – and in doing so, pave the way for an agreement long before court proceedings become an option.

This is especially important when warring parties dig their heels in and refuse to concede anything to the other party. A mediator can help to bring them to a mutual understanding from which they walk away in agreement.

While a commercial mediator shouldn't weigh evidence or make decisions, they can ask probing questions. This is partly to nudge parties towards an understanding of how their case – and their opponent's case – could hold up in court.

It's not a million miles from psychotherapy – a conversation in which the nominal leader is directing and eliciting, not laying down the law.

And like therapy, commercial disputes can be emotive. Sometimes people hold on to grievances in a way that distorts their overall view of the situation – and a mediator can try to clear up some of this muddle and calm things down.

All in all, a commercial mediator's job is to help people communicate – not to reach a verdict of guilty or not guilty.

How does a commercial mediator get appointed?

There are two main ways of appointing a mediator. The first is to outsource the task to a mediation service provider, which will have a panel of accredited mediators to choose from.

The other method requires more patience and cooperation. This is where both parties suggest mediators – this could be someone they know of or someone whose expertise reflects the dispute at hand. The two parties then have to choose one, together.

Once nominated, the mediator will be filled in by both parties about the dispute. They will then schedule a date that's convenient for everyone to meet and mediate.

The crucial thing here is that the mediator is appointed jointly. This is because the mediator should be aiming for complete impartiality – not leaning towards one side or the other.

Does a commercial mediator have to be a lawyer?

The simple answer to this is "no" – but appointing a lawyer has its benefits.

If the dispute is industry-specific, it can be advisable to appoint an expert in that field. This person doesn't have to be legally trained – but they do have to have undergone mediator training. It's not uncommon to see surveyors, architects and engineers mediating disputes in their relevant fields of expertise.

More often than not, however, mediators are solicitors or barristers – sometimes practising, sometimes having switched roles.

While a specialist non-lawyer can be advantageous in the event of a niche dispute, appointing a lawyer has its advantages too.

The main advantage is that the aim of mediation is to settle the dispute before it gets to court. It can be beneficial to have someone on hand who has the experience to know how a case is likely to be viewed by a judge. Moreover, a lawyer can be well-placed to interpret any legal advice that the battling parties have received.

When is the right time to mediate?

This is a complicated question that could warrant a whole article – but the simple version is as follows.

Ideally, mediation will take place before court proceedings begin. It's possible to mediate right up to the start of the hearing or even during proceedings – but the longer it's left, the less likely you are to reach an amicable solution.

However, even though there's no right or wrong time to mediate as such, it can be best to initiate the process early on.

This is for two reasons: first, because it's a far more cost-effective option, and second, because there's a greater chance that the two sides will reach an agreement. After all, if there's a mediation meeting scheduled for the day before a court hearing, it's unlikely that cool heads will prevail.

Even so, court proceedings can be paused – or "stayed" – for a specific period to allow for mediation or other forms of ADR to take place.

Conclusion

So, to recap: a commercial mediator's powers are limited to helping parties reach a mutual understanding – and in doing so, avoid costly and time-consuming court proceedings. They are not there to judge or make decisions but may nudge parties towards an agreement with probing questions.

If you're looking for support resolving a dispute, we at Milners Law can be of service. We offer fast, impartial, fairly priced mediation from experienced commercial lawyers.

Interested in commercial mediation? Then please don't hesitate to get in touch for a free, no-obligation consultation.