Introduction

We all have disagreements with family and friends, work colleagues and sometimes business associates. How we sort these problems out has a bearing on future relationships. Mediation is an efficient and practical way of addressing such problems and putting in place agreements that maintain and at times can even enhance those relationships.

Definition

“Mediation is a structured process where two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach agreement on the settlement of their dispute with the assistance of an impartial mediator.”
—The Mediators Institute of Ireland

The Aim of Mediation

Through the facilitation of a mediator, to get the disputing parties talking to each other in a really meaningful way, to see each other’s real interests and needs, thus creating genuine understanding.   Once that has been done the parties can then set about designing solutions to the issues that separate them, that they fully buy into and which they will commit to implement, thus preventing the issues arising again.

Mediation is becoming more popular, and is now used in many areas where disputes may arise for instance, in the community, the workplace, family or commercial areas. Mediation is part of a wider suite of dispute resolution processes known as Alternative Dispute Resolution (ADR) processes, which includes, conciliation, negotiation, arbitration etc. each of which give greater access to individualised justice.

A survey carried out in 2013 by the Irish Commercial Mediators Institute found that 7 out of 10 cases which went to mediation were settled and were 65% less expensive than if the case had gone to court.

Mediation is recognised as a really good way of solving disputes, with huge savings in time and money. Forthcoming domestic legislation will give discretion to judges to take a refusal to attend mediation into account when deciding costs.

Major Aspects of Mediation

Mediation is voluntary. Self-determination of the parties is a core value and strength of the mediation process. Participants must volunteer to enter the process and retain the right to withdraw from the process at any stage during the mediation. In addition, the option to bring a dispute to any other forum is not removed by going to mediation.

Mediation is Confidential. This is a cornerstone of the mediation process; what happens in mediation stays in mediation. Both within the process and in any agreement. This allows parties to be honest and open.  Mediation takes place on a “without prejudice” basis. Confidentiality is copper-fastened in the Agreement to Mediate (a document which is agreed to and signed by the parties before the mediation session commences).

In mediation the participants retain control of the process. In court you hand over control to a judge. In mediation the parties retain control of the process and of the outcome and the agreement. It is essential that the parties have the capacity to engage fully throughout the process, it is up to the mediator to ensure this happens. It is also up to the mediator to ensure that the parties fully understand and consent to any agreement reached during the process. A mediator has to ensure that the parties are aware of their right to obtain independent advice, including legal advice, prior to signing any agreement. The parties also retain control of the process and the outcome and agreement are what the parties want, they are not imposed.

Mediation is efficient. Mediation is normally completed in a day. It requires a minimum of administration; the time demands for preparation are no-where near what they would be if the dispute was to go to any other forum; the research input is minimal. Mediation costs less than any other form of dispute resolution. Because of its simplicity mediation costs are low. Mediation is also less stressful than other forms of dispute resolution and is certainly less traumatic than standing in a witness box.

Enforceability. It is up to the parties to decide the enforceability of an agreement; it could be non-binding, binding (the same as a contract) or, in some cases, court enforceable.

The Mediation Process Itself

After parties have agreed to utilise mediation they will be contacted by the mediator. This will normally be a phone call during which the mediator will introduce him/herself and explain a little about the process. If practical the mediator may arrange to meet each of the parties involved on an individual basis, to say hello face to face and explain more about the process. He may also give them a copy of the Agreement to Mediate document.

On the mediation day:

Following introductions the mediator will outline the mediation process and remind the parties of the major aspects of the process. The mediator will remind the parties that mediation is future focussed. Normally at this stage the parties will be asked to sign the Agreement to Mediate document.

Opening statements

The parties are then given the time to make their opening statements. This gives them uninterrupted time to express their views on what has gone wrong, their views on the causes of the dispute, their concerns and what they hope to achieve in mediation. It is not unusual to have some venting of pent up frustrations at the opening joint session. It is vital that each party listens to the views of the other, thus creating a deeper understanding of the other person’s perspective.

Identifying & Framing the Issues

Following the opening statements the parties will, with the help of the mediator, explore the real interests of the parties; that is dig to find the needs and desires of the parties and why they exist. Exactly what is in dispute must be agreed. It is important that all aspects of the dispute are flagged at this stage.

Option Development

Having identified the problems now the parties are encouraged to come up with ideas and options around each issue that needs to be resolved. The mediator will encourage the parties to come up with ideas and possible solutions regardless of how feasible or practical they may or may not seem; evaluation and appraisal of these ideas will come later. The mediator may utilise one-to-one side-sessions, known as caucuses, which can allows greater exploration of positions and possible solutions.

Negotiation

When the options have all been formulated the mediator moves the parties into the negotiating or bargaining phase. Here the mediator encourages the parties to start an evaluation of settlement options and see what they can agree upon. Each option should be examined carefully: Is it practical? Is it fair? Do both parties agree with its implementation? What are the consequences?

Drawing up an Agreement

The goal of mediator is to facilitate parties reaching some form of settlement or agreement that sets out guidelines for the future handling of the issues in dispute. Having decided on the options that will work, the mediator now draws up a written statement that summarises the key points of agreement between the parties.

The agreement must be balanced, i.e. each person can see a benefit from making it work. It needs to be behaviourally specific, stating clearly who is to do what, when, for how long, under what conditions etc. Actions should be framed positively and it should be easily understood. It is imperative that both parties are happy with the final agreement and are genuinely willing to commit to it.

Possible Outcomes

A number of outcomes are possible:

• Verbal non-binding; when there are no legal implications (e.g. the workplace scenario).
• Written non-binding; parties may want to see if the agreement will work (not unusual in a family dispute scenario).
• Written Binding; has the same standing as a contract.
• Court Enforceable; the parties may wish to get a court to approve the agreement. The advantage of doing this is that it gives the same finality as that of litigation.

Unlike litigation or arbitration, an outcome is not always guaranteed in mediation, however, the statistics demonstrate that it has a very high success rate.

The Role of the Mediator

The role of the mediator is to empower the parties to reach their own solution and to facilitate the parties in producing a substantive and lasting agreement.

• S/He is not a judge, nor a conciliator or even a referee.   S/He is a catalyst.
• S/He sets the tone for the process and he must keep the discussions moving forward.
• S/He ensures the parties have the continuing capacity to engage and he will

make reasonable accommodation if necessary, may be as simple as taking a break.

• Raise any conflict of interest that may arise and discuss it with the parties.
• Remain totally impartial.
• Be aware of the parties’ right of Self-determination; right to withdraw.
• Work as quickly & efficiently as possible.
• S/He will not make proposals unless asked.
• Make the parties aware of their right to seek independent legal advice.

Mediation Questions and Answers (FAQ)

Who chooses the mediator? Either party may suggest either a person or a service provider, but both must agree. Be sure to check qualifications and experience; there is no register of mediators in Ireland, anyone can set up as a mediator. Is s/he a member of a professional body, such as the MII? Check what redress you have if you are not happy with them; MII mediators must have indemnity insurance. You can have two mediators if you think it is needed, maybe one with an expertise in a particular area.

When should you mediate? It depends on the situation but earlier rather than later as that saves, more time, money and stress. Certainly before the Discovery phase in litigation which is laborious and costly.

How long does it last? Normally mediation is completed in a day, though that may be a long day. Family mediation can take place over a number of shorter sessions.

Should I bring my solicitor/representative? If you wish but it is probably better to do the mediation yourself. If it concerns a legal matter it may be a good idea to bring a solicitor. However, it is very different to a court environment; it is not adversarial, you are in control and your solicitor/representative is only advising. S/He may be most useful when drawing up the agreement. If the mediation relates to a financial matter you may wish to bring your accountant.

How do I go about raising the matter of mediation? When a dispute arises you can seek the services of a mediation consultancy or an independent mediator; be sure to check credentials. Often commercial contracts will include a mediation clause and it is something you should include in yours in the future. Parties have been referred by the courts, it will be an obligation in the new legislation for lawyers to put it to their clients to consider mediation before initiating legal proceedings. Increasing number of government bodies and statutory agencies are signing up to mediation.

Benefits of Mediation

Costs; are low, on average 65% lower than litigation.

Flexibility; in procedure and remedy; you decide, who the mediator will be, where and when it will take place, how the process is run and what the outcome is to be.

Your solutions; mediation allows for creative remedies that you and the other party come to for yourselves and that you are happy with.

On-going relationships are maintained.

Mediation is a pragmatic approach to getting a workable solution.

Speed; it is a fast process, much faster than litigation or arbitration. People are not away from work for the same length of time as they would be if involved in other types of dispute resolution forums. There is much less time required for preparation.

Less stressful; mediation is less stressful than virtually any other type of dispute resolution process.

Confidentiality; you are washing your dirty linen in private not in glare of media attention.

Conclusion  

Mediation is an intelligent and practical alternative to the courts and it works!

I hope that little resume has been helpful. If you have any questions I’d be glad to answer them, just give me a call or send me an email.