From Boardroom to Living Room, does mediation fit all?

(a personal view)
Kate JACKSON32
The shimmering glass tower offices in the City would seem at first glance to have
little in common with a housing estate in west London. Commercial mediations are
surely companies haggling over money and community mediations involve the
personal issues of warring neighbours. However, in reality the issues in each often
start with something as basic as human emotion. Though the disputes will be over
different subject matters, of vastly different values, it is surprising how often both are
triggered by the feelings and perceptions of the parties involved. This article will look
at community and commercial mediation and assess how two sets of cases that seem
so different actually appear to have much in common.
Commercial Mediation
Commercial mediations concern disputes between companies. These can range from
breach of contract, where one party feels that the other has not fulfilled its contractual
obligations, or problems arising from a business joint venture, or even that one
company feels another has infringed its intellectual property rights, for example by
marketing a product similar to their own.
Community Mediation
Community mediations generally concern issues between neighbours or community
groups, usually concerning noise, inconsiderate or anti-social behaviour and
sometimes allegations of racism or other discrimination.
Common Cause
Community mediations understandably have a high degree of emotion: the issues
centre on peoples enjoyment of their own homes and excessive noise or anti-social
behaviour from a neighbour can lead to feelings of anger, despair and consequent
health problems that come from tiredness and stress.

32

Commercial mediator, ranked as a leading individual by Chambers and Partners Directory and The
Legal 500 and volunteer for the Kensington & Chelsea Community Mediation Service (CALM) since
2009.
Email: kate@mediatorkjackson.com

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However, though money is the key issue at the heart of most commercial mediations,
there is also a surprising amount of emotion involved in these cases too. Sometimes
someone feels that they have been lied to or duped by an individual in the other
company and seeks redress or acknowledgment of this.
Other times it may be that the individuals involved in the original events are
protecting their own personal position and career within the firm and cannot look
objectively at the issues.
Common Aims
Whether commercial or community the aim of mediation is to first, find out what the
parties really need and then, to help them find a solution to it.
Mediation in any setting can help the parties to focus on what they actually need
(which is often quite different to what they are claiming). In a community setting, it
may be, for example, that a level of noise in the afternoon will be tolerated but there
needs to be quiet in the morning to allow a worker returning from a nightshift to
sleep. In commercial mediation, it may be, for example, that certain products from a
range or specific marketplaces are essential to a company, while others could be
relinquished as part of a deal.
Individuals as Decision Makers
In community cases, an individual is clearly making the decision as to any agreement
reached. However, with commercial mediation, even though the named parties are
corporates, it is necessarily still individuals (or groups of individuals) making the
decisions. These individuals are working for their companies but they bring their own
values and views to their corporate roles. How they exercise this judgement on the
day can depend considerably on what they hear and see, for example an insurer could
decide whether to take a narrow or broad interpretation of the policy wording, each of
which would be justified legally as there is rarely only one definite answer on issues
of legal interpretation.
Mediation gives an opportunity for parties to better understand the others viewpoint
(and also sometimes to understand why certain conduct/events occurred). In
community mediation, often a significant breakthrough occurs when the parties speak
directly and one understands that the other is not making the noise on purpose. For
example, if one party learns that the other has been using the washing machine at 2am
because their children were sick, it does not take away the effects of the noise, but it
can reduce the ill-feeling and make a party more willing to talk.
Similarly in commercial mediation, whereas courts will decide purely the legal case,
mediation gives a chance to combine the legal case with the moral one. For example a
company where for tax/legal reasons the ownership structure did not accurately

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reflect the contributions made by its respective directors, after a mediation persuaded
the dominant director to agree a settlement far more generous than would have likely
been awarded by a court but one that more fairly reflected the many years of hard
work by the other director.
Solutions
In both commercial and community cases once a greater understanding is achieved,
solutions can come much more easily. In a community setting, a simple
understanding of the layout of the homes (for example appreciating that a kitchen is
over a bedroom and the effect that this may have on the ability to sleep) or
understanding the schedule of the neighbour better (and being able to focus on key
times to keep noise low) can greatly assist.
In commercial mediation often two companies have different priorities; one may wish
to focus on the EU market, another on the US, each may value different products, in
some cases, one party simply wants an apology from the other.
Agreements
Whilst both community and commercial mediations aim to achieve an agreed
settlement, those reached in community mediations are generally not legal binding.
Conclusion
Few would doubt that community mediations involve a considerable amount of
emotion and the opportunity for parties to express that, have it heard and discuss how
to improve the situation is why mediation is so effective in the community.
Whilst commercial mediations usually have money as a driving factor, they involve a
surprising amount of emotion too. A number of commercial cases have settled with
an apology or recognition of wrongdoing being a significant part of the settlement. In
other cases the opportunity to talk about the conduct that lead to the dispute and
understand in more detail what happened, has been the catalyst that has led to parties
that were previously some distance apart, being able to reach a financial agreement.

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