Mediation

Mediation is a dynamic and interactive process where an independent third party—a mediator—facilitates the parties in dispute to reach agreement. It is increasingly used as an alternative to the court process, allowing for more personal, confidential and timely solutions.

I am a certified mediator with the Mediation Institute of Ireland.

Mediation—what’s its all about?

Every Mediator will have a different definition of what mediation is, but essentially it is a process where an independent third party (the mediator) helps the parties in dispute to reach agreement. Sometimes the role of a mediator is described as “facilitating” the agreement between the parties.
Mediation is at best an alternative to legal proceedings, or occasionally it is a process that can provide the parties with a forum for ‘narrowing’ the issues between them that they would ultimately want a Court to determine.
Mediation is not the solution to every dispute, sometimes parties would rather a Court or Tribunal comes to a decision regarding their dispute. But, increasingly, Courts and Tribunals are encouraging litigants to consider mediation as an alternative to the the traditional court, or litigation, process.

What happens at a mediation?

Every mediation will be governed by the nature of the dispute, the number of parties involved and how complex the issues. However, generally the mediator will meet with the parties individually prior to the mediation and will send out an Agreement to Mediate that all parties, including the mediator, will sign.
Most mediations will last around a day with an agreement, normally in writing, signed by all parties. This agreement can be retained by the mediator, or by the parties. Sometimes, if an agreement needs some time to be “tried out”, it can be agreed to reconvene after a period of time. Alternatively, the parties can agree to proceed as per their agreement and contact the mediator if problem arises. Ideally, the mediation concluded with an agreement reached by the parties that is workable, with their relationship improved to the extent that any “fine tuning” can be agreed between them. Most mediations end without requiring any further input from the mediator, whilst this is the ideal conclusion every mediation is different.

Mediation or Court?

So, what are the advantages to mediation over pursuing a dispute in court?

The advantages can sometimes vary from dispute to dispute, but essentially the advantages over court can be summarised as follows:
· confidentiality;
· lower costs;
· a quicker process;
· less conflict; and
· the parties are in control.

Confidentiality

All matters discussed at a mediation are entirely confidential. The parties to a mediation, including the mediator, will sign a mediation agreement that binds all of them to this concept of confidentiality. Nothing that has been discussed by anyone in a mediation can be repeated without the express consent of all involved. Further, nothing that has been disused in a mediation can be shared with a court without the express consent of all involved. Everything, aside form any agreement between the parties, is what lawyers refer to as “without prejudice”- in other words, if you ultimately don’t solve your dispute through a mediation and end up in court your discussions, and potentially agreement on some issues, in the mediation cannot bind you in any way.

Lower Costs

Anyone who has been through the process of bringing a case to court, or being sued, often feels aggrieved at the costs of doing so. Rarely are lawyers praised for being “good value for money”. Naturally, each mediator will have their own way of charging for each mediation. But generally the mediation cost is fixed at the outset and often this cost is shared between the parties equally. There will be no extra costs at the end, in fact most mediators insist on the costs being paid before the mediation begins. On some occasions one party will agree to pay all the costs involved, for example when an employment dispute is the subject of the mediation the employer often pays for the mediation. Whilst the costs of mediations will vary according to the complexity of the dispute and the time required to have the mediation, the cost will be fixed at the outset in an entirely transparent way and there will be no surprises. Mediation is nearly always a cheaper process that litigating a dispute in court.

A quicker process

As I mentioned above, after going through court litigation many of those involved will complain about the cost of the whole process. The next most frequent compliant is the amount of time it took. From your first meeting with a solicitor to the hearing of a civil dispute in court, it is not unusual for a period of 1½ to 2 years to have elapsed. Courts and Tribunals are constantly trying to reduce this delay, and often to good effect. But, for a variety of procedural and other reasons, the whole court process can take a lot of time. Mediation is a much quicker process an therefore a more attractive way forward. One way mediation is quicker is due to the fact that parties do not need to engage a lawyer. Naturally, if the parties come to any agreement they will be advised to take legal advice as to the effect of any agreement. But they do not necessary always need the services of a lawyer at their side the whole way through the process as required in court. Whether a party is introduced to a mediation through their lawyers, or if they directly engage a mediator, if all paper work is ready and the parties are available, a mediation can be arranged within weeks of approaching a mediator.

Less conflict

Many disputes that go through the courts can be very damaging, if not terminal, to the relationships of the parties involved. Whilst it is not always possible, the mediation can often preserve the relationships between the parties. One of the main parts of any mediation is when all parties involved hear what each feels the dispute, or problem, between them is. Often, disputes between parties arise as a result of poor communication of a problem between them, or one party feels that the other doesn't understand why they are aggrieved. Mediation can provide a forum for each side to “hear” what the other side is feeling. An apology or an explanation can often go a long way towards the resolution of a dispute between parties. Additionally, the lack of the traditional adversarial court processes involving rules of evidence and cross examination are not present in mediation. The mediation is normally conducted in a neutral and more relaxed venue. The pressure on the parties is therefore reduced, often leading to a more proactive and positive engagement by all involved.

The parties are in control

The parties to a mediation generally set the pace of discussions, agree what the agenda of the mediation will be and decide when to take a break or when a satisfactory agreement is reached. If the parties decide to stop the whole mediation process, that is also within their control. Naturally, any mediator will make suggestions about all of these issues. An effective mediator will be able to identify issues of dispute and in what order they might be discussed, but its is the parties’ process and their positive involvement will make for a potentially more sustainable settlement and a more satisfactory process. The following are examples of disputes that mediation might provide a more satisfactory outcome.

Mediation Costs

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