Mediation is a dispute resolution process which is given special recognition in our civil justice system by the Mediation Act 2017. Mediation can be used to facilitate almost any type of dispute from marital breakdown to boundary disputes to commercial conflict. The mediator is neutral and encourages the parties to cooperate with each other to work out mutually acceptable arrangements. It has long been recognised that litigation can be slow, expensive and unpredictable. Mediation is therefore designed to promote the resolution of disputes and provides a viable, efficient and cost-effective alternative to Court 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.”
Mediation is a voluntary process so a person cannot be required to use mediation to resolve their dispute. It is essential that there is agreement to engage in mediation to try to resolve the dispute. The parties are free to decide to leave the mediation at any time.
Only the parties decide if, when and how to resolve their dispute in mediation. The terms of any resolution agreement reached between the parties in Civil Law only becomes binding on them when put in writing and signed by them. The Act provides that, in Civil Law, once a settlement agreement is concluded and signed by the parties in mediation, it can be enforced like any other binding contract.
It is important to note that this is different in family law where any Mediated Agreement is subject to examination by the Judge who has a constitutional obligation to ensure it provides “proper provision” for the parties.
Mediation is not appropriate in cases of fraud, intentional wrongdoing, abuse of power, physical or mental abuse and domestic violence.
Obligations of solicitors
Before you begin a Court action, your solicitor must advise you to consider mediation to resolve your dispute. The effect of this obligation is to put the option of mediation on the agenda for consideration at an early stage. While there is of course no guarantee that a mediation will lead to a successful resolution of the dispute or indeed that mediation is appropriate in the particular circumstances of the case, putting mediation on the agenda for consideration at an early stage has to be seen as a positive step in dispute resolution.
Advantages of mediation
Mediation offers several possible advantages for resolving a dispute. Mediation is facilitated by an independent third party. The parties decide if, when and how their dispute is resolved and therefore have an element of control in how the dispute is resolved. The mediation and all communications associated with it are protected by confidentiality and may not be used or referred to in Court if matters are not resolved in mediation. The confidentiality aspect helps to guard against any possible reputational damage which is important in a small area like west Cork, insofar as there may be any continuing relationship between the parties, that relationship is usually not put in jeopardy. This is in contrast with litigation where the adversarial nature of the proceedings forces the parties to be confrontational and can seriously damage, or indeed make impossible, any future working relationship between them. Mediation can also reduce the cost and time associated with Court action.
What are the risks?
There is no guarantee that you will reach agreement through mediation. If this happens, you may have to go to Court.
It is important to recognise that even if the mediation is unsuccessful on the first attempt, it is not a wasted effort. After mediation, all parties know where the other stands and everyone’s “stall is set” so to speak. While this cannot be used in Court, it can certainly be used by the parties’ respective solicitors to continue negotiations and attempt to come to a resolution that is beneficial to all parties.
Preparing for mediation in Civil Law
The mediator does not decide how matters will be resolved; it is for the parties themselves to work this out. All parties should have prepared a case summary setting out a brief background to the dispute and highlighting the important points to be discussed. Parties should have taken professional advice, such as legal advice, in advance. This can help them to fully understand their legal rights and obligations in relation to the matters in dispute.
The mediation process in Civil Law
Mediation is not how it appears on the television. You will not have to sit opposite the other party, eyeballing each other and flanked by your respective legal teams. Generally the mediation is held in a hotel conference room with you and your legal team in one conference room and the other party and their legal team in another. The mediator then “shuffles” between both rooms. The mediator is appointed by the parties to the dispute. The mediator will begin the day by speaking with both parties and their legal teams separately in order to obtain a better view of both parties’ sides of the dispute. The mediator will never divulge information to the other side without your specific say so. The mediator is a facilitator and their role is simply to assist the parties to reach an agreement suitable to each of your needs. The mediator does not decide who is right and who is wrong but rather helps the parties to evaluate the strengths and weaknesses of their respective cases, their desired objectives and the potential for settlement. The mediator does not adjudicate the outcome and does not pose solutions.
The mediation process in Family Law
Mediation in a marital breakdown is different to mediation in a general dispute. Mediation is not suitable in matters where there is evidence of domestic violence. In family mediation, a trained mediator helps you and your former partner to negotiate your own terms of agreement in a safe space, while addressing the needs and interests of all involved. You are in the same room as your former partner during this process. With the help of a mediator, the couple systematically consider each issue, explore their options and come to decisions. It is always advised and encouraged that the parties get expert advice such as legal or financial advice to ensure that the separating couple can make informed decisions that they both find acceptable. It is important to note that mediation is not marriage counselling or a legal advice service. It is essential to remember that the mediated agreement is not a legal agreement, however, you can bring this document to a solicitor to be drawn into a legal contract or deed of separation and you may also use it as the basis for a decree of divorce.
It is important to note that an agreement brought before the Court for the purposes of Judicial Separation and Divorce is subject to full examination by the Judge who has a constitutional obligation to ensure that any such agreement delivers “proper provision” for all relevant parties.
To quote Abraham Lincoln, “Discourage litigation. Persuade your neighbours to compromise whenever you can”. I cannot stress the importance of this statement, especially practising in rural west Cork where everyone is your neighbour.
By Aislinn Collins Solicitor.
This article is for general information purposes/general overview only and does not constitute legal or other professional advice. We recommend seeking legal advice to interpret and advise on any aspect of the law.
July 2023 Wolfe & Co. LLP Solicitors