Dispute Resolution Through Commercial Mediation

The key goal of mediation is to find an acceptable solution to the conflict. Although the resolution of disputes through commercial mediation abroad in the vast majority of cases occurs the next day or shortly thereafter, there are people who doubt the success of the process.

The mediation process is aimed at helping the participants in the case to resolve the dispute out of court through the conclusion of an amicable agreement.

Peaceful Resolution of Disputes Abroad: Settlement Agreement

By considering the factors that govern the resolution drafting process, lawyers can help their clients prepare the “foundation” for resolving a commercial dispute through mediation. 

Consider the following:

• Money. While the financial implications of any settlement may seem obvious, the parties may have problems if they only consider their own position. For example, should the respondent be given time to receive funds in such a way that payment can be guaranteed?
• Court case. While the litigation has so far been critical to the continuation of the dispute, it has culminated in the elaboration of a settlement agreement. With this in mind, a party that is confident in its righteousness (or feels vulnerable) must seek a real, practical settlement, which often requires some degree of concessions.
• Personal factors. Do not underestimate the emotions of those involved in an argument. They tend to manifest themselves in concerns about personal and professional reputation and job security.

The services of a mediator in the settlement of a commercial dispute in a foreign jurisdiction help the parties to resolve these problems. However, for this, the mediator must have a high level of training, relevant knowledge and experience in order to negotiate more effectively.

Practical aspects

Lawyers can take a number of important steps to ensure that they and their clients can reach the best possible settlement agreement:

1. Since a typical form of settlement of an international commercial dispute is a contract, lawyers should create a draft of it, including as many details as possible. It is imperative that there is a way to edit and print the document so that the parties can sign it. The Model Settlement Agreement is the platform for this purpose;
2. It is necessary to identify all the problems to be considered. It may not be as easy as it seems at first glance. Also, a dispute can have several different aspects. Consideration should be given to the payment terms, timing of any ongoing litigation;
3. In the course of resolving a business conflict with the help of commercial mediation, the parties must give lawyers sufficient time to draw up a draft agreement. The lawyer must make sure that, after the contract is drawn up, his client takes the time to understand the contract he is signing;
4. If both parties agree but are unable to complete the project within the allotted time or without reference to other documents, then this statement of intent can be a useful tool. Both parties to the dispute must sign it. However, an amicable settlement is always preferable as it is legally binding.

Duration of the mediation process

If the settlement of a commercial dispute abroad by means of mediation lasts more than one day, the parties do not need to worry. The mediator must perform a number of key tasks that will lead to a peaceful resolution of the international conflict:

• Make sure the parties know what was agreed and what issues require further negotiation. With the consent of the parties to the dispute, he may indicate this in a document marked "without prejudice to the parties", clearly indicating that this information has a high level of confidentiality;
• Liaise with the parties to help them negotiate.

Assistance of a solicitor in commercial mediation

It is recommended that the parties participating in the mediation procedure, at the latest before concluding an agreement, consult with their solicitor. Unilateral legal advice guarantees full awareness of the parties to the conflict regarding their legal rights and obligations.

Nothing that is accepted in the traditional process should be overlooked by the mediation procedure. In particular, in mediation, the level of contractual practice must also be guaranteed, i.e. legal quality. Consulting a solicitor at the same time helps to balance the power between the parties. It is not aimed at predicting a legal dispute and representing interests before a court or a third party, but at finding a mutually acceptable solution within the framework of mediation. Naturally, such counseling should follow the logic of the mediation process.

Unlike a mediator-lawyer, a legal advisor who advises one of the parties has the right to represent the interests of his client in the litigation. After all, he consulted only one side. Therefore, for him there is no question about the unfair attitude towards his client or about the prohibitions contained in the rules of law that regulate advocacy. If the mediation does not lead to an agreement, he should discuss in detail with his client to what extent the information that became known to his client during the mediation process should be introduced into the litigation.

Final word

For those involved in the international dispute resolution through commercial mediation, a settlement agreement is not only satisfactory but the most likely result, provided that all participants treat the process responsibly.