What is Mediation?
Mediation is a process where an independent Mediator facilitates the parties to come to an agreement using collaborative methods and fair processes. Mediation is considered an interest based resolution as opposed to a rights based resolution. This is because mediation is designed to help the parties clarify their interests and motivations in a dispute as opposed to just focusing what rights the parties have, which is what the courts do.
Usually a mediation in practice is a Mediator sitting down with the parties and discussing each issue, making sure everyone is heard, and seeing can a resolution be found. Where necessary the Mediator can speak with or meet each party individually before or after the mediation. In the event that resolution is made usually an agreement is drawn up. Mediation offers flexible solutions. You decide what course you wish the mediation to take. This is the key to the success of mediation over litigation, people choose their own outcomes.
The Mediator uses a variety of skills and techniques to help the parties reach a settlement but has no power to make a decision. The parties decide what solution they want.
The mediator will help the clients
- Isolate the disputed issues.
- Discuss the options open to the parties.
- Develop and explore the options and potential consequences for same.
- Deal with any imbalance of power between the parties
- Draft and agreement if one is reached.
Usually this takes place over half a day or a day. Some more complicated mediations take days or weeks to complete depending on the issues involved.
Legal advice is not given in mediation. However the legal expertise at Appelbe Mediation is of use in a variety of ways. These include:
The Mediator having knowledge of what is or is not possible legally.
The Mediator having knowledge of what the reasonable alternative to the parties might be.
The Mediator having knowledge about possible taxation and other cost consequences of decisions made.
Any agreements will be drafted by the Mediator who is an experienced legal drafter which increases the success rate of them.
The Mediation having knowledge of the legal consequences for any proposed solutions.
Mediation is not counselling.
Mediation is a voluntarily process, people are not compelled to attend.
Mediation is confidential process. Any agreement is confidential too unless the parties agree that it should not be.
The mediator is Impartial and Independent.
This is a method of resoling disputes outside of the Courts.
Yes. Mediation is has an 80% success rate.
If a mediation is unsuccessful the parties can peruse whatever other avenues are open to them. This may include the legal route.
The stated aims of the Bill are to reduce legal costs, the stress of courts and the backlog in the legal system. Mediation has been found to be very effective in achieving all of these aims.
The Mediation Bill defines Mediation as:
“A facilitative voluntary process in which the parties to a dispute with the assistance of a Mediator attempt to reach a mutually acceptable agreement to resolve their disputes.”
The main proposed changes of the Mediation Bill 20117 are outlined below.
S.14 of the Mediation Bill 2017
Proposes to put an obligation on Solicitors to provide information on Mediation to clients before courts proceedings can start.
- 16 of the Mediation Bill 2017
Proposes to empower the courts to invite the parties to consider Mediation.
The setting up of a Mediation Council.
The duties of the Mediation Council would include promotion of public awareness of Mediation. Having codes of practice for Mediators and maintain a register of Mediators.
Mediation is used far more internationally than it is in Ireland. The Mediation Bill if enacted will mean an increase in the use of Mediation in Ireland.