2010 may well come to be viewed as a watershed year in the positive evolution of the whole process of dispute resolution. The Draft MEDIATION AND CONCILIATION BILL published on 16TH November by the Law Reform Commission in conjunction with the Commission’s Report on “ALTERNATIVE DISPUTE RESOLUTION: MEDIATION AND CONCILIATION” provides definition and clears the way for the enactment of progressive legislation. It may not be an exaggeration to think of this as one small step in civil procedure, one giant leap for civilization with due credit to Neil Armstrong’s “one small step for man, one giant leap for mankind”.
Heretofore, there has been a lack of definition of Mediation and Conciliation – everybody seemed to have an idea based on some preconception that lay somewhere between a form of counselling at one extreme and just another procedural/legal layer of Bureaucracy at the other. The fact is that successful mediation is a highly skilled independent profession in its own right and requires training, experiential learning, and a particular set of skills. It has now been formally defined in the Bill as:
Mediation: “a facilitative and confidential structured process in which the parties attempt by themselves, on a voluntary basis, to reach a mutually acceptable agreement to resolve their dispute with the assistance of an independent third party, called a Mediator.“
Conciliation goes further and means
“such a process in which the independent third party, called a Conciliator, actively assists the parties to reach, on a voluntary basis, a mutually acceptable agreement.”
A brief synopsis of the main provisions of the Bill is contained on our website under “Articles and Resources – November 2010” and it is not intended for this article to be merely repetitive of the contents thereof. Rather, having delivered thirteen courses to Solicitors and Barristers during the past few months it is intended to very briefly highlight a few of the more important questions that have emerged.
When Should Mediation be Suggested?
Mediation is not a suitable procedure for settling disputes in all cases. Where deliberate bad-faith, illegality, fraud or danger to children is involved, mediation, which requires good faith and the cooperation of both sides – at least towards finding some resolution, is unlikely to be appropriate. Similarly, where a party is certain that it has a clear-cut case, or where the objective of the parties or one of them is to obtain a neutral opinion on a question of genuine difference, to establish a precedent or to be vindicated publicly on an issue in dispute, mediation may not be the appropriate procedure.
On the other hand, mediation is hugely attractive where any of the following are important priorities of either or both of the parties:
- minimizing the cost-exposure entailed in settling the dispute;
- the maintenance of control over the dispute-settlement process;
- a speedy settlement;
- the maintenance of confidentiality concerning the dispute;
- the preservation or development of an underlying relationship between the parties to the dispute.
The last-mentioned priority, in particular, makes mediation especially suitable where the dispute occurs between parties to a continuing relationship, such as on-going employment, landlord and tenant, licensing arrangements, distribution agreements, various joint contractual situations – since, as mentioned above, mediation provides an opportunity for finding a solution by reference also to business interests and not just to the strict legal rights and obligations of the parties. Needless to say, the best possible on-going relationship between separating spouses, in the best interests of their children, can be achieved much more successfully in mediation than in litigation or even through legal settlement.
Other advantages can be considered:
- Speedy Resolution
- Efficient hearings instead of long frequently delayed court proceedings.
- Ensure that unique needs and interests are addressed
- Mediation is better suited than court to accurately assess many issues
- Parties can speak candidly, without fear of intimidation
- Privacy & Confidentiality
- No public exposure or damaged reputations
- Choose a mediator with proven experience
- Control over Uncertainty
- Avoidance of “surprise” in Court
- The process promotes communication and cooperation.
- It allows the parties, not the court, to make decisions affecting their future.
- It promotes positive future relationships by reducing conflict.
- It is confidential and private. There is no public disclosure of personal problems or finances.
The overwhelming reaction to the increased awareness of Mediation is that it is “a good thing” – a bit like the attitude of those of us who were around in 1971 when cars first had to have front seat safety belts fitted: eventually, years later, we had to use them and the usage was extended to the rest of the vehicle. Countless lives have been preserved. Hopefully we will remember 2010 as the year in which we became prepared to use the vehicle of Mediation to resolve disputes quickly, cost-effectively, successfully, ensuring the maintenance of necessary on-going relationships – a leap for civilization.
The Mediation Bill and the other aspects of mediation are discussed in detail at our Introductory Training courses in Mediation Advocacy. For details on this and other courses [Click Here].
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.
For more information on our mediation services CLICK HERE
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