Over the last number of years, mediation has become increasingly used or considered as an alternative dispute resolution process in Ireland. According to the CEDR Ireland/ICMA Mediation Audit 2013, mediations have increased by 739% between 2003 and 2012 and 73% of all mediations surveyed reached agreement. The following is a general guide for clients to explain what the process is and how the process operates in practice as a method of resolving disputes.
What is Mediation?
Mediation is a form of alternative dispute resolution (ADR), which can be used as a way of resolving a dispute between two or more parties with the assistance of a mediator who acts as a neutral third party and facilitates the process with a view to the parties voluntarily negotiating a settlement of their dispute.
Mediation usually has a structure, timetable and process established and agreed by the parties with the mediator which can help it to be a more effective dispute resolution process than a traditional settlement meeting. The process is private, confidential, without prejudice and non-binding, although the objective is to reach a resolution of the dispute by agreeing a binding settlement agreement.
What are the potential benefits of mediation?
Voluntary and confidential process where participants determine the outcome for themselves rather than it being determined by a Judge or an Arbitrator.
Offers a wider range of possible outcomes than can ever be determined by a Court.
Provides an opportunity for the parties to fully participate in the process and therefore, to feel very much part of a successful outcome.
Avoids the potential risk of the significant costs in litigation.
The mediator can act as an impartial facilitator to a resolution.
Ideally suited to multi-party litigation or otherwise complex disputes.
Mediation is also appropriate as a method of resolving interpersonal disputes such as those that arise in the workplace, in clubs, in an educational context, etc.
Even an unsuccessful mediation can educate the parties on the strengths and weaknesses of their case and the risks involved which may facilitate resolution in due course.
Can allow disputes to be resolved in circumstances where a necessary on going relationship between the parties can be maintained.
What is the role of the mediator?
The role of the mediator is not set in stone. Typically the mediator acts as a neutral third party and facilitates rather than directs the process. At all times, the parties and not the mediator control the outcome of the process.
A good mediator is somebody who is able to establish a process, keep that process moving and build on any momentum that may develop during the course of the mediation. A good mediator will quickly identify and understand the key issues and may challenge the parties to consider their respective strengths and their weaknesses as well as the future implications if the parties fail to reach a negotiated settlement.
When is mediation appropriate?
Mediation can take place at any stage from before legal proceedings are issued up until trial. Obviously, the earlier a mediation takes place, the better chance of saving costs, avoiding publicity and possibly preserving future relations between the parties. However, at a later stage in proceedings mediation may have a better chance of success as the issues in dispute are more clearly defined, the parties are clearer on their strengths and weaknesses and the parties are more focused on the possible benefits and risks in terms of outcomes and costs.
Why you might not mediate?
The key issue is whether a party is ready to seriously attempt a negotiated settlement. If a party is insisting on pre-conditions to a mediation or sees the mediation as an opportunity to “send a message” rather than an opportunity to resolve, then there may be little prospect that a successful resolution can be reached. However, once the parties are engaged in the process, even an apparently unwilling or reluctant participant may see the benefit of reaching a resolution.
There are very few types of disputes that cannot be mediated. An often cited example is judicial review where the issue is whether a public body or authority exceeded its powers. However, that does not mean that all judicial reviews are incapable of being resolved through mediation.
If one party or the Court proposes mediation, the other party is entitled to refuse to mediate or at least to state that they are not ready to mediate yet. Once mediation is proposed, there is no obligation to agree. However, a party who refuses to mediate should not take this decision lightly as this may have costs implications as referred to below.
How might mediation be proposed?
A Judge may recommend that the parties consider mediation or, more commonly, one party may simply propose, through their legal representatives to the other party and their legal representative, that the dispute be mediated. A proposal to mediate should not be seen as a weakness but merely as a willingness to explore the possibility of a resolution outside the procedural confines of litigation
How is a mediator appointed?
The parties must agree on the appointment of a particular person as mediator and the usual practice is that both parties propose a list of mediators and seek to agree on one of the names proposed. Alternatively, the parties can ask a mediation service provider to propose an appropriate person. There are a number of established organisations in Ireland including:
The Irish Commercial Mediation Association (www.icma.ie)
CEDR Ireland (www.cedrireland.com)
Mediators Institute of Ireland (www.themii.ie) which promote mediation and offer lists of qualified mediators
Chartered Institute of Arbitrators - Irish branch (www.arbitration.ie/mediation).
Status of mediation
Mediation is a voluntary, private process. Mediation communications are confidential and are not admissible in court proceedings unless confidentiality is waived. However, evidence used during mediation, for example correspondence or documentation that is otherwise admissible or subject to discovery, shall not become inadmissible or protected by privilege solely because it was used in the mediation.
The Mediation Agreement
In order to ensure all parties understand the status and implications involved, a comprehensive Mediation Agreement dealing with issues such as confidentiality, admissibility and privilege in relation to documentation and information exchanged must be agreed in advance. The Mediation Agreement will also deal with the costs of the mediation including the mediator’s fees and will establish how these costs are to be shared between the parties. An appropriately qualified mediator will usually provide a draft Meditation Agreement and it can be amended to suit the parties wishes before being signed by each of the parties and the mediator.
The format of mediation
The process is entirely flexible and will depend on the mediator and the parties’ preferences. In general terms, it is preferable that position papers are exchanged in advance. Depending on what stage in the dispute the mediation takes place, it may be appropriate for the parties to agree to exchange relevant documents in advance. If possible, the parties and their legal representatives should meet the mediator themselves prior to the scheduled date of the mediation in order to assist the mediator identify the key issues in dispute in advance.
On the day of the mediation usually there is a joint session at the beginning when the mediator brings the parties together in order to emphasise the ground rules and if agreed, to have opening presentations by each party. Often this can provide an opportunity for either party to articulate their own perspective of a dispute in their own terms and equally importantly, to hear the other party articulate their perspective. This presentation can be made by the party themselves and/or by their legal representative.
Thereafter, a mediator will usually meet privately with the parties in order to explore issues and possible areas of agreement and engage in a form of shuttle diplomacy. The mediator may propose further joint sessions or meetings between principals either with or without legal representatives. Ultimately, the objective is that the form of a resolution will come from the parties themselves to be formalised in a settlement agreement.
If it is not possible to resolve the issue at mediation, the mediator will typically offer their services to the parties for a period thereafter to facilitate any further discussions. This can be particularly useful if the parties have reached agreement on all but a few outstanding issues.
Legal Incentives to Mediate
Since its creation in 2004, the Commercial Court has had the power to adjourn proceedings to refer a dispute to mediation upon application of one of the parties or by the Commercial Court Judge’s own motion. This power was expressly extended to the High Court generally in 2010. The High Court may also invite the parties to attend an information session on mediation.
The Court may, in considering the awarding of costs, where it considers it just, have regard to the refusal or failure without good reason of any party to participate in mediation or any ADR process.
Whilst this is not current law, the general scheme of the Mediation Bill 2012 proposes further reforms to the rules of civil procedure in Ireland to firmly embed mediation within the legal system and provide wider powers to the Courts in terms of the awarding of costs against parties who refuse to mediate.
Mediation along with other ADR processes should now be seen as an integral part of or alternative to any dispute resolution process. It can be a very practical and cost-effective way of promoting a settlement between the parties which the parties themselves can shape and in certain cases it can assist in preserving existing business/ working relationships which traditional litigation can often leave seriously if not irreparably damaged.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.