By Dr Georgina Tsagas, Consultant Solicitor, Simons Rodkin Solicitors LLP, Bloomsbury London W1 and Finchley London N12.
For how mediation and mediation advocacy would work in your case if you have a company law related query or dispute call 02071128841 and ask for Dr Georgina Tsagas or e-mail your queries directly at firstname.lastname@example.org
Mediation is an alternative form of dispute resolution that aims to resolve all types of dispute outside court proceedings and arbitration. Mediation is a voluntary, confidential, and flexible process, via which disputes between parties are settled. Mediation is interactive, yet structured, and involves an independent third party, the mediator, who, through the use of specialised negotiation and communication techniques, assists the parties to consider all available options with the objective of reaching an agreement between the parties within a set time frame. Mediation provides parties with control over the process and the resolution of their dispute as it:
- Provides parties with confidentiality throughout the negotiation process
- Proves more efficient than lengthy court proceedings, saving parties energy and time
- Generates financial savings by comparison to costly court proceedings
- Assists parties in finding workable and realistic resolutions, possibly for the long-term
- Has a high success and compliance rate according to European and International studies
- Offers a high chance of parties’ preserving relationships, doing so with dignity and respect
Engaging in the mediation process to resolve company law disputes is often optimal considering that disputes of this kind are multi-layered, refer to various litigation procedures, and concern issues relating to mutual trust and confidence, which in turn require that confidentiality and preservation of relationships during discussions and negotiations is maintained. During the mediation process, clients will require specialised support, otherwise known as mediation advocacy, with mediator advocates helping negotiate and advocate for the client’s position in order to reach a settlement that the client will be satisfied with. Mediation cases may involve external or internal company disputes. External Company Disputes concern ones as between the company and other companies, stakeholders and non-governmental organisations, and internal company disputes would involve disputes between business partners, directors, shareholders, and the company’s internal stakeholders. Negotiations on the drafting of commercial agreements, partnership agreements, share and asset purchase agreements, as well as on the drafting/amendment of a company’s articles of associations, the exercise of shareholders’ rights at general meetings, the introduction, and removal of directors of and from the company board respectively, or the setting up or breakdown of company-related projects are all examples of cases which may benefit from being mediated on and requiring thus a mediator advocate to advise, support and represent the client.
In England & Wales Mediation is encouraged as a form of dispute resolution. Please refer to A guide to civil mediation – GOV.UK (www.gov.uk) and is endorsed by law. In the UK, the Civil Procedure Rules (CPR) describe mediation as ‘a third party facilitating a resolution’, during which the mediator does not decide the case; his/her role is to facilitate the settlement discussion, with the parties deciding whether to settle and on what terms. For EU Cross-border disputes, the EU Mediation Directive (2008/52/EC) aims to facilitate and promote settlement through mediation and applies to most civil and commercial cross-border disputes where one party is domiciled in the United Kingdom or other EU Member States and the other in another distinct EU member state.