In litigation, the parties retain solicitors / barristers whose focus is to prepare a case which will result in the best decision for their client. Litigation is adversarial and confrontational and frequently demeaning of the other party. In litigation you never know what the outcome will be until the case is ruled upon. There are no guarantees that anyone will come out as the ‘victorious party’. In the long run, everyone pays a price in litigation. Mediation is based on the principle that people are capable of resolving their own disagreements if given the right support. It is non-adversarial, non-confrontational and the parties agree that information will be openly shared in a safe, neutral environment. It is a voluntary and totally confidential process. Either party can withdraw or choose not to participate at any time. The mediator does not judge who is right or who is wrong, but works with parties to help them arrive at a solution to satisfy their interests. No notes or transcripts are kept following the mediation and the mediator will not reveal anything discussed during the mediation to anyone other than the participants. The mediator cannot appear as a witness for either party in any subsequent legal action. The mediator does not represent either party.
Mediation is effective when both parties want to resolve a disagreement. It is most effective when:
- The issue involves strong emotional feelings
- The parties know each other
- Both parties are open to using Mediation
- The parties want to maintain their relationship
- The parties have reached an obstacle in their discussions
- One or both parties want to avoid costly legal proceedings
Generally any kind of disagreement can be mediated. Not all legal matters are suitable to mediation, the exceptions are legal proceedings which involve criminal proceedings, or require statutory, judicial or regulatory case law to resolve. Whether it is a civil dispute involving hundreds of thousands of euro, a workplace dispute, a divorce, or a family matter, the parties can resolve it without resorting to traditional adversarial litigation. Even after litigation has been started, mediation can be a practical way to settle the matter in a less expensive and timely manner.
Mediation works best for parties who wish to settle without going to court or do not wish to continue court proceedings and are willing to commit to a genuine effort at resolution, in good faith. Mediation is very effective when the parties live nearby or have to maintain their relationship on a day-to-day basis. Separated parents, business colleagues, friends and relatives may need or wish to have continuing relationships with each other. There is a mutually beneficial incentive to continue or re-create an amiable relationship and to explore ways to prevent disagreements from arising in the future. Mediation allows the parties to maintain control over their decision making rather than letting a judge decide. The parties control the amount of information that becomes a part of the public record. Court procedures and allegations made therein can be very public, unnecessarily embarrassing and personally damaging.
Aside from low cost and high success rate, mediation has a number of important aspects.
Privacy. The process of mediation is confidential as it relates to all participants, including solicitors/barristers and the mediator. Everything discussed in the mediation is confidential. Any documents that are exchanged in the mediation are confidential. Any legal or other suppositions advanced in the mediation are confidential. Mediation is not a matter of public record. The mediator cannot appear as a witness for either party in any subsequent legal action. No notes or transcripts are kept by the mediator following the mediation.
Control. The parties will decide their own outcome and own it themselves. No third-party will be imposing a judgement. No outsiders will be scrutinising the rights and wrongs of the agreement. The parties have the unique opportunity to tell their own side of the story – through the Mediator where appropriate- without lawyers objecting that what is being said is inadmissible for some reason. The parties have the unique and often very satisfying experience of creating their own resolution in their own words to resolve their disagreement.
Relationships. It is important that relationships be kept intact in so far as possible or that a new basis for their future be established. Business partnerships, family, friendships and social relationships of long standing are often soothed and become stronger as a result of mediation.
Responsibility. The mediation process encourages the parties to assume personal responsibility for their respective roles in the disagreement. It’s not blaming the other side but rather accepting ownership for the things contributed or done to create the disagreement. Remember, its takes two to tangle. However, the greatest responsibility of each party is to resolve the problem and Mediation provides a user-friendly vehicle to help them get there.
Speed. A mediation can be organised quickly. There is no long wait for a court date. Resolution of most disagreements is usually achievable within a day. More complex commercial disputes and conflicts may require more time and communication to explore the interests and positions involved.
Mediation is “interests-based” which means that it focuses on the underlying interests of the parties, and not their positions. Mediation is used to define complaints, problems and disputes.
- Discover options and solutions
- Manage the resolution process in a ‘win-win’ manner
- Facilitate mutually agreeable settlements
- Formulate guidelines and policy
- Record agreement with written documentation
- Prevent future disagreements
Mediation usually provides a quicker, more cost effective and more satisfactory outcome than litigation. It may take months and sometimes years to resolve a disagreement in court, mediation can be paced according to the parties’ needs and schedule. Mediation is voluntary and requires both parties agreement to the make a final resolution. Therefore, parties are more satisfied with the outcome than with a decision made by a judge or jury. This results in a higher likelihood of compliance with the mutual agreement since parties are usually more likely to comply with a solution to which they have agreed. In mediation, the parties are able to customize the resolution agreement to meet their needs rather than being constrained by the limited options available in court. Most important, parties are more likely to preserve an amicable relationship in the future.
In theory, no one loses; everyone wins. This does not mean that both sides come away from mediation automatically happy with the outcome. Each party must be comfortable enough to tell their story and assert their interests. The mediator facilitates and makes sure each party is heard, however, it is each person’s responsibility to say what is on their mind. Whatever is agreed upon is mutual and neither party is forced to agree anything which they do not want. However, common sense teaches us that closure is important and sometimes we must bend a little to get what we really need.
The best time is sooner rather than later, before the parties incur the expense and emotional turmoil of litigation. It frequently happens that one party is ready to begin mediating before the other, so some sensitivity to the feelings of the other party is courteous. If legal representation has already been secured, it is not too late. Most cases settle before trial, so it’s almost never too late to mediate. Most legal professionals and courts advise mediation before litigation.
Within a mediation session, two types of meetings can occur. First, the joint session. This is when everyone is present. The parties, their representatives and lawyers meet with the mediator and outline the basic issues, interests and positions of each side. The second type of meeting is called caucus. A caucus is a private and confidential meeting between the mediator and each of parties and their lawyers. The mediator shuttles between the parties. Anything discussed in a caucus cannot be disclosed to the other party without agreement. In mediations, both types of meetings occur as it helps overcome positional obstacles and helps maintains a forward progress toward a mutually agreeable resolution.
The normal process is for the parties, their representatives and the mediator to meet together, at scheduled sessions determined by the parties. Essentially mediation runs like a guided negotiation between the parties, with the mediator facilitating the communication. Most meditations generally use the following five-stage format.
Stage 1: Establishing the Process: The mediator and the parties agree to a number of guidelines they will follow in the mediation. This usually includes only allowing one person to speak at a time, treating all parties with respect, and confidentiality.
Stage 2: Exploring Positions and Interests: The parties usually make their initial statements regarding their disagreement and define what they hope to resolve in the mediation. This, and the steps below, can be in plenary session or to the mediator privately.
Stage 3: Developing Solutions: Each party discusses their interests and possible solutions to resolve their disagreement.
Stage 4: Finalizing a Resolution: The parties assisted by the mediator create a solution mutually agreeable to all the parties.
Stage 5: The Written Agreement: Once agreed on, the agreement is formalized in a written resolution agreement.
Traditionally mediation is conducted by a single mediator. However, co-mediation or a panel of three mediators has been used for specific types of mediation.
At the Initial Session:
- Assesses whether, when and how to intervene with the parties
- Creates a comfortable environment for communication
- Invites parties to participate, to share their thoughts and concerns
- Establishes the purpose, structure and guidelines of mediation with
Throughout the Session:
- Helps each party to feel heard, respected and acknowledged
- Identifies key interests that parties need to address and issues
influencing those interests
- Outlines the issues and interests so they can be visualised
- Continues to create an ambiance of safety and dignity
- Helps keep the process focused and forward moving
- Manages emotions and communication styles
- Deals with unproductive power dynamics and egos
- Encourages risk taking
- Facilitates an effective negotiation process
- Sorts out personal and emotional impasses and position obstacles
During the Resolution Process:
- Encourages creativity and out-of-the-box ideas
- Helps parties brainstorm solutions with each other
- Helps each party think through their options
- Establishes vocabulary and words of potential agreements
- Discusses how agreed resolutions can be implemented
- Drafts a Resolution Agreement to be reviewed
- Finalizes a Resolution Agreement in writing to be signed by all parties
Resolution for approximately 80% of conflicts is usually achievable within a day. More complex commercial disputes and conflicts may require more time and communication to explore the interests and positions involved.
Generally, it is not so much ‘not wanting’ to agree but not ‘knowing how’ to agree. A mediator can bring a new perspective. The mediator’s own experiences, training and knowledge can assist parties in exploring alternatives that they might not have previously considered.
Parties may or may not want lawyers to be present. It is a choice that is usually discussed between the parties prior to mediation. Some parties prefer to decline legal representation and do their own preparation and presentation. Others, especially in complex issues, feel more secure with a legal representative present. Most parties in mediation prefer to have a consulting lawyer present to answer questions that may come up during the mediation. In addition, the lawyer can clarify information provided by the mediator or provide another perspective. The consulting lawyer can also review the resolution agreement to be sure it accurately describes the agreement reached, is clear and enforceable.
The written agreement is binding on the parties unless it is expressed not to be so. Parties need to tell the Mediator if what they have agreed is not to be binding on them. A legally binding mediation agreement is a contract and can be sued on in the event of a breach. Section 11 – Enforceability of mediation settlements of the Mediation Bill 2017 details the nature of the enforceability of any agreement reached during the mediation process.
Usually it will not be necessary but sometimes statutory provisions will make it necessary to have the mediated agreement or specific terms thereof made Orders of Court. For example, a divorce can only be granted in the Circuit or High Court and where the Judge is satisfied that proper provision has been made for all the parties. In the light of so much judicial recomendation for mediation it is highly unlikely that a Judge will upset the parties own agreement, once the statutory provisions have been met.
No party is forced to accept a solution that does not meet his/her interests and needs. The parties should understand that the mediation goal is to create a solution that comes as close as possible to a “win-win” agreement, while recognizing that parties don’t receive everything on their wish list. If there is no resolution, the parties may still go to court to resolve their disagreement.
No. The mediator cannot appear as a witness for either party in any subsequent legal action nor talk to anyone about the case. Additionally, neither the parties nor their attorneys may introduce into evidence what happened or did not happen during the mediation.
That’s where Mediate Ireland can help. Either click the link below, “Enquire about Mediation” and complete the enquiry form or call 087-2268394 to talk to a mediator about your case. If it helps, one of our mediators can contact the other parties to explain the procedure and encourage their participation.
When all parties agree to mediate, we will send out the Mediation Agreement for signature by all parties and their representatives.
Where it may be difficult to agree to mediation, Mediate Ireland, may be able to assist by working between the representatives of all parties, to “Mediate the Mediation”