What are the similarities and differences between commercial and

community mediations?
(a personal view)
Jane COOKSEY33
Mediation is a useful process for enhancing communication and understanding
between human beings to enable a resolution of their dispute. At its core there is no
difference between commercial and community mediation. What is different is the
approach of the people to the mediation and the concerns that they bring to be
resolved. It is these aspects that create the need for a mediator to have some different
approaches.
In looking at similarities it may be more important to a mediator to notice the styles
and approaches a party has to managing conflict. Looking at Jungs personality types
(Sharp 1987) relating to how people operate he says they have a preference of how
they approach what they perceive and how they judge what they perceive. What are
the combinations of sensation, intuition, thinking or feeling that motivate individuals?
Do they react mainly from sensation or from intuition? Do they prefer to make
decisions from a basis of rational thought or through the gut reaction of how it feels?
Thomas and Kilman34 have taken Jungs concepts further onto two scales, based on a
partys level of assertiveness against their level of cooperativeness and labelled five
modes of operation in conflict which will apply in how people approach a mediation
whether it is community or commercial:
1. If competitive, a person tends to see it as win-lose and blames, accuses and
labels the other using words such as must, have to and should.
Mediators tend to call these people high conflict.
2. When accommodating, a party tends to view it as lose-win, speaks softly,
gives in and goes along with what the other says for a peaceful life. These first
two are extremes but pieces of behaviour many exhibit at different times in
mediation. When angry people revert.

33

Jane Cooksey is a commercial, community, family and workplace mediator as well as a Psychologist
and Solicitor. She is the founder and co-owner of Berkeley Square Mediation
(www.berkeleysquaremediation.com) and a full time mediator.
Email: janecooksey@gmail.com
34

Thomas, K.W., Kilmann, R.H. 2010, Conflict Mode Instrument. Profile and Interpretive Report,
CPP Inc., United States. See http://www.characterfirst.com/assets/Files/TKI-Sample-Report.pdf
(accessed in March 2013)

PROBATION junior 111

3. An avoidance approach means the person will not reveal anything, avoid eye
contact, turn away their body, fidget, make jokes and change the subject so it
becomes hard to facilitate. This inevitably ends up with a lose-lose outcome
because the mediation process cant function until the mediator can get them
past their evasion.
4. If a party has a compromising approach, they will see it as giving up some
of what they want for the other party giving up some of what they want,
which means they only reveal what they need superficially, stay strong, direct
and in control, acknowledge the others needs superficially and negotiate well.
A deal will be broken between parties but it wont be a true and satisfying
settlement, merely a job done. It is often all that can be achieved in a time
limited mediation.
5. A collaborative approach always creates the best outcomes. A party really
listens not only to themselves but also to the other so they reveal what matters
to them and hear what matters to the other. Separating the people from the
problem, they can focus on their own interests and needs both for themselves
and for the other, sometimes opening up to hearing them in a different way.
Creative options can spark up, go back and forth and parties gain a sense of
working together for better results. The beauty of mediation may enlighten
them further. Settlements coming from this point in mediation are often better
than expected. Both parties have changed the ways in which they see the
dispute, hear the other side and discover what will work. Its not win-win, it is
more like something has changed that enhances their business or their
community.
These personality types and their different approaches to conflict are happening in
any mediation, whatever type it is and for a mediator its how they facilitate,
manipulate and manage the process to enable the better changes to happen for the
parties.
Ideally, everyone in mediation reaches a true collaboration of creative solution
making giving them the deeper experience which can be briefly described by what
the letters in the word RESOLUTION spell out to show what can unfold in a
mediation, commercial or community:
R stands for the necessary respect and courtesy to all involved,
E for the expression of what really matters,
S for willingly sharing interests and needs including hearing the others,
O for opening up to the difference that created the dispute,
L for listening with compassion and without interrupting or judgement,

PROBATION junior 112

U for understanding not only the other but their own behaviour in the dispute
in ways they did not before and as a result what the conflict is really about,
T for thinking up different solutions,
I for imagining what might work for them as well,
O for offering reasonable and workable ideas for ways forward, and
N is for the new, having gone through the process of change, left comfort
zones to make leaps and having found the new idea that works to solve it.
In either community or commercial mediation, provided people attend with full
authority and intention to settle, they can often come away surprised at what can be
achieved in mediation.
So what are the differences that do exist between community and commercial
mediation? Here are just a few:
1) Trust and rapport in commerce the people dealing with the dispute need to
feel that the matter is being handled by someone who understands what they
are going through. In particular, if a party thinks they are important as many
company directors may do, they may need to think their mediator is important
too. For example, if a conflict is in the middle of a legal process, a mediator
who knows about how their proceedings work is important to parties. When
the matter is in a specialist area, for example, intellectual property, knowing
the jargon and structure of how IP disputes pan out for parties is essential.
2) Experience, gravitas and knowledge of specialities in conflict areas may feel
essential to the parties in order not to have to lose valuable time explaining to
a mediator how things work for the business.
3) Many commercial directors wish to feel that they are dealing with someone
who can understand board level decisions and has experience at the sort of
commercial level they operate. Without someone they feel is similar to their
level of business experience it may not be easy for them to feel relaxed and in
safe hands.
4) A good commercial mediator needs sufficient authority in his/her self to
command respect and courtesy from someone like a fast rising entrepreneur
who deals with conflict by very tough negotiation as part of daily activities.
5) Frequently parties have such conflicting interests and needs that there are
things they have to keep secret. Private meetings in commercial mediation are
essential for discussion about matters that cannot be disclosed to the other
side.

PROBATION junior 113

6) Commercial mediators have to add a number of extra techniques to their skills

such as challenging from different commercial perspectives which requires
knowledge of business operations. Using anchoring of the dispute may be
necessary so that parties make offers that are not demeaning and likely to
cause further polarisation. A mediator may have to make many judgements in
commercial mediation about whether or not to even put a proposal to the other
side or how to put it in an acceptable way.
7) The lawyers may be put together on their own to settle some legal difference
or establish a way of dealing with it or the experts present may be put in a
separate room to sort out points of agreement and points of difference.
Sometimes the parties themselves might go in a room alone to break a
deadlock between them. What happens in a commercial mediation depends on
what the parties need from the flexible process to take settlement forward and
this varies hugely depending on the type of people present, their interests and
needs.
8) Often offers are not used when requested or used at more appropriate
moments or only explored as possibilities. Many times they might be
introduced to a party in such a way as the party may think they came up with
it.
9) At times, development of how to negotiate is a one to one with the mediator
so that teaching to negotiate, developing what and how to put it becomes a
part of the skills needed. This may be particularly important to maintain
balance and fairness.
10) There may be things developing in commercial mediation that require
awareness of what cannot be agreed and finding out how to skirt round
difficulties this can create may be needed in order to take parties to where
settlement can occur.
11) A good commercial mediator keeps awareness of ensuring any settlement
includes everything necessary, including at times, questioning why something
that might be necessary that has not been included has been left out. Spotting
what is missing may be another skill a mediator has.
12) Finally, a commercial mediator may well need to play the maverick and
surprise parties into change with something unexpected within the mediators
behaviour. It will be whatever creates the necessary process to sort out the
content the parties bring.
Ultimately, every mediation is different because its about the people, how they are,
what they bring, how they approach and deal with their conflict and how much they
can be facilitated to go into the process to allow it to happen to create the change they
need.

PROBATION junior 114

Conflict is a massive and golden opportunity in any of its forms for each of us to
embrace change for the better. What is invaluable is that it is like learning how to stay
in the saddle of an untamed horse and achieve riding the impossibly bucking creature
to a point of peace and harmony.
References
Sharp, D. 1987, Personality types. Jungs Model of Typology, Inner City Books,
Canada.
Thomas, K.W., Kilmann, R.H. 2010, Conflict Mode Instrument. Profile and
Interpretive
Report,
CPP
Inc.,
United
States.
See
http://www.characterfirst.com/assets/Files/TKI-Sample-Report.pdf
(accessed
in
March 2013)

PROBATION junior 115