Mediation is quickly becoming established as a new and different method or process of dispute resolution and accordingly there are misperceptions and lack of knowledge as to how it actually works or will work in practice and as to what will be the role of the solicitor and barrister and what it will mean for the practitioner. Most are aware that there have been many recent regulations and recommendations and that Courts are increasingly directing mediation in many disparate cases. In this article I intend to briefly synopsise some of those regulations and recommendations.
The most recent change was brought about by SI 539 of 2009 Circuit Court Rules effective 1st January 2010 as a result of which, in Family Law proceedings a Judge or County Registrar my now adjourn proceedings for 28 days and invite the parties to use an ADR process to settle or determine the proceedings or issue.
This SI arose from the 2008 EU Directive on Certain Aspects of Mediation in Civil and Commercial Matters which states
having regard to all the circumstances of the case, invite the parties use
mediation in order to settle the dispute. The court may also invite the
parties to attend an information session on the use of mediation if such
sessions are held and are easily available.”
Mediation is becoming increasingly common in the UK and it is likely, given much Judicial support for the process here, that UK precedent will be considered soon. For example, the UK Courts take a very dim view of refusal to mediate and in the Halsey Case have gone so far as to set out six criteria for deciding whether or not to punish a party, by awarding costs against a party for refusal to mediate:
- the nature of the dispute
- the merits of the case
- the extent to which other settlement methods had been attempted
- whether costs of the ADR would have been proportionately high
- whether any delay in setting up the ADR would have been prejudicial, and
- whether the ADR had a reasonable prospect of success
Accordingly, costs implications for parties, especially where a party is a State body, are likely to be increasingly significant.
An Bord Snip Report: “The group proposes that there should be compulsory mediation of legal disputes involving State bodies …… legislative change should be initiated to implement this proposal”
On 2nd March last Chief Justice John Murray said that mediation reduces the burden on the parties concerned personally and economically and creates a saving for society both in terms of legal costs and in reducing the burden on the courts system allowing it to function more effectively.
Mediation has become part of the process of The Commercial Court particularly by reference to Orders 5 and 15 thereof and this is likely to filter down to cases involving smaller sums that might come before the lower courts.
There are numerous specific provisions in various Employment Law and Equality enactments, as well as in recent legislative provisions in the areas of Health, Medical, Pharmaceutical, Disability, Children etc.
Further it should not be forgotten that S.15 and S.16 of Civil Liability and Courts Act, 2004 allows the court to direct parties to (an existing) personal injury action to hold a “mediation conference” upon the application of either party and the court being satisfied that it could be beneficial.
Neither indeed should the long-standing obligations imposed on solicitors in the Family Law Acts to advise clients on mediation and swear declarations that they have done so.
The above are just examples of what I refer to in the heading as the “current environment” or mood which is certainly in favour of the development of mediation. Numerous Judges have promoted mediation over the past few years and the changes in dispute resolution mechanisms are inevitable. Solicitors and barristers should be prepared and ready to play an active, professional and constructive role in these developments.
It is ten years since the present Chief Justice, then President of the High Court, emphasised that ‘any aspect of it, no matter how trivial, which can be agreed, should be agreed’ and that ‘it is probably preferable in almost every instance to have an agreed rather than an imposed solution, no matter with how much reason the court may attempt to impose it,’ (Finlay J. 1997).
If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 087-2268394 to discuss your requirements or organize a mediation.
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Mediation Advocacy Training
Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.
For more information on our training programs CLICK HERE