Commercial Mediation

1. Commercial Mediation, appears to be about mediation with a business element or purpose to it and this may be illustrated by commercial ventures or individuals mediating for unpaid amounts, recompense or equitable solutions that address a harm caused by one party. Often, these matters involve insurance, either a homeowner's policy, a commercial policy or an auto insurance policy. However, it is somewhat misleading to be too concerned about the adjective, Commercial. For our purposes, we can accept that Commercial Mediation is mediation of disputes capable of litigation in a non-family context. This exclusion might be wisely extended to estate matters, though estate litigation, difficult as it is, can likely be addressed by any intuitive mediator. (ref p. 9 CMapp)

2. Mediation works very well in a litigation setting provided that the process is adapted so that, in a seamless way, it becomes part of the dispute resolution journey of a litigation file, or becomes the destination itself. "By filling the middle role, the mediator can, much like the glue between two objects respect the integrity of both sides while providing a reasoned method of assisting them towards an agreement." (ref p.7 CMapp) The mediation setting provides the science of mediation, namely the process and this process is applied as art, therefore providing a template and the creativity to expand within its boundaries. The template can be effective in resolving the problem by virtue of the application of the creativivity of the skillful mediator. Mediation works well in the litigation context because it has the capacity to allow the parties to argue in a setting, which instead of leading to an imposed decision by the court or the arbitrator allows the parties to view and determine how their interests best interact with the interests of the other party in a way that a consensual decision can be made in order to provide a resoluion of the matters before them. 

The word argue is not used in a perjorative sense but rather as a process of rhetorical discussion where persuasion ebbs and flows with understanding of the ideas of others.

3. Commercial Mediation is capable of receipt of all the skills which we learn as mediators however, it has been observed by the writer that should the mediator misjudge the level, application and type of skills necessary for the particular mediation, the application of the skills will become counter-productive.

a. To transfer from one area of mediation to another, the mediator must understand how to appropriately shift the dynamic. Mediation must be applied in the context of where it is used.

b. A lot of talented mediators do not get employed in commercial mediation settings because they are not given the opportunity to how what they can do, or there is a perception, true or not that they are unable to shift dynamics as referrred to in a. above.

4. The dog's tail is waged by the dog. The rest of us can only provide guidance to allow it to happen. We can't put the cat on the chair for it will usually jump off. We can, encourage the cat to make a decision to jump up on the chair.

5. Commercial Mediations are not nasty, aggressive sessions except sometimes when overun by the uninitiated or the mean spirited. The Commercial Mediator will endeavour to ensure that the the exploration of interests and the search for common ground are accomplished in a civil and respectful manner.

6.To move Commercial Mediation beyond its base there must be a concerted effort made to lobby the bar and convince prationers that the benefits experienced  in insurance based mediations are equally applicable in other areas of the law.

7.Mediation is only beginning to be systemitized. There are many more ways that mediators can assist parties bilaterally or as coaches to one sdie.

The two most important qualities of a good Commercial Mediator are:

good j ____           and lightning fast i ___

Bryce Jeffery,

November 2, 2010