What is mediation?

Mediation is a voluntary process of dispute resolution where an independent third party assists the opposing parties in the dispute to reach an agreement to resolve the matter(s) at issue.

Due to its voluntary nature, a person cannot be compelled to use mediation to resolve their dispute. However, a suggestion from the Court may be difficult to resist. All of the parties must agree to use mediation to try to resolve the dispute. For this reason, the process requires constant consultation as well as collaboration in order to allow the parties to reach agreement.

The legal basis

The Mediation Act 2017 came into force in Ireland in January 2018. It sets out the statutory framework designed to ‘facilitate the settlement of disputes by mediation, to specify the principles applicable to mediation [and] to specify arrangements for mediation as an alternative to the institution of civil proceedings.’

Mediation is defined in the Act as “a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute.”

Section 11(2) of the Mediation Act 2017 provides that a mediation settlement shall have effect as a contract between the parties to the settlement, except where it is expressly stated to have no legal force until a formal legal agreement is signed by the parties.

Prior to commencing any proceedings, it is a legal requirement under section 14 that solicitors advising clients should consider mediation, provide information about mediation services and provide details about the advantages of resolving the dispute other than by way of court proceedings. Compliance with these obligations must be set out in a statutory declaration, This declaration should accompany any originating documents through which any proceedings are commenced.

Process

There are several stages in the mediation process. They range from the preparatory stages, to the stages in the actual mediation itself and, finally, the conclusion stage, should an agreement be reached.

The preparation phase

The parties will firstly go about selecting the mediator. This can involve each side suggesting potential candidates until there is consensus. The opposing parties can also seek a recommendation from a given institution. Selecting the correct mediator is a crucial part of the process. Appointing a mediator with a demonstrated knowledge, speciality or expertise in the relevant field can enable them to build a relationship of trust and confidence with both sides. This can increase the chances of a successful resolution being reached.

Once appointed, the mediator will typically undertake a face-to-face meeting with each side. This often includes a short briefing about the process and an explanation of the rules of the mediation and how it will be conducted.

After the parties have agreed to undertake mediation and the mediator has been chosen, the mediator will often ask each party to sign an agreement to that effect. The agreement will contain several different clauses. However, the agreement will always contain a confidentiality clause. This is one of the key benefits of mediation, as opposed to traditional, open-court litigation.

The opening phase

Mediators have different styles and the parties, and the nature of their relationship, can vary significantly. Some mediations will start with a joint or plenary session, during which all of the parties are present and are introduced. Irrespective of whether a joint or plenary session is held, the mediation will involve each side briefly outlining their issues and objectives to the mediator, and the outline for the day is agreed. Whether to hold a joint session and, if so, for how long, is a matter for the mediator to determine.

The exploration phase

This stage involves private meetings between each party and the mediator. During this time the mediator will seek to explore in more detail each party’s case, their aims and objectives. This sets the stage for the actual negotiation talks to take place, ensuring that each side is clear on each other’s position.

The negotiation phase

Direct and indirect negotiations begin with the assistance of the mediator. Where the parties cannot reach a substantive agreement or are deadlocked, the mediator will seek to guide the parties by using various techniques of direct and indirect negotiation skills. This can, for example, involve specific members of each delegation meeting with their equivalents from the other party / parties.

The concluding phase

This involves the lawyers representing both sides drawing up the agreement recording the settlement terms. If an agreement is reached, it is good practice not to allow the parties to leave the mediation until the resolution has been documented in the form of an executed agreement.

What are the advantages and disadvantages of mediation?

Advantages

The key advantage of mediation is that it affords parties the opportunity to manage the dispute in a confidential setting, without prejudice to any proceedings. This enables the parties to reach a mutual agreement, instead of an ‘imposed’ outcome that may result from litigation or arbitration. The benefits are often seen in unfair dismissal disputes, where both parties benefit from the confidential nature of mediations. The employee is saved from their name becoming public knowledge and the employer is spared negative publicity that may come from the case being taken in the public domain. Mediation can also involve more flexible outcomes than litigation and parties can fashion a resolution in mediation which would not otherwise be available from a court. In addition, depending on when in the dispute process the mediation takes places, it can involve a substantial saving in costs.

Disadvantages

With any voluntary process, it is only as useful as the parties’ level of engagement. Should there be any failure by either of the parties to adequately partake in the process, then it may result in delays. Even if the process does take place, for it to be successful, the parties must be willing to engage.

What are the types of disputes suitable for mediation?

There are a number of conflict categories which benefit from the use of the mediation process. These include:

• commercial disagreements
• employment disputes
• family disputes
• personal injuries disputes
• consumer
• property disputes

These types of disputes are likely to benefit from confidential, collaborative discussions in order to reach a mutual agreement. A confidential resolution through mediation allows for stronger relationships to be maintained after the matter is settled than would likely be the case after potentially acrimonious court proceedings.

Although there is a clearly defined process for mediation, it is flexible, and encourages participants to set the direction. This demonstrates the value of the process, in that it facilitates the resolution of complex, personal and often intertwined disputes, for which a court setting may not be suitable or may not yield a mutually optimum result.

There may of course be situations where mediation is not a viable option, which is in part recognised by the Mediation Act 2017 which excludes from its scope certain types of proceedings, including judicial review, domestic violence and child care. However, given the clear overriding advantages, it should be a realistic consideration in most scenarios when approached by a client with a dispute.

For more information and expert advice on mediation, contact a member of our Dispute Resolution team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

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