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.
Mediation is available in Cork/Dublin/Limerick/Waterford/Tipperary/Kerry/Clare
Appelbe Mediation is fully approved by the Mediators’ Institute of Ireland.
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.
Appelbe Mediation provide a nationwide service.
However they are Munster based so in particular do work in Cork, Limerick, Kerry, Waterford, Tipperary and Clare. However there is regularly a Mediator available in Dublin.
Susan regularly travels to West Cork and is happy to provide services in Bandon, Skibbereen, Banrty, Castletownbere, Clonakilty and Dunmaway.
Role of Mediator as set out in the Mediation Act 2017 is as set out below.
The Mediator shall, prior to the commencement of the Mediation
make such enquiry as is reasonable in the circumstances to determine
whether he or she may have any actual or potential conflict of interest, and
not act as mediator in that mediation if, following such enquiry, he or she
determines that such conflict exists,
furnish to the parties the following details of the mediator that are relevant to
Mediation in general or that particular Mediation:
training and experience;
continuing professional development training,
furnish to the parties a copy of any code of practice
published or approved under
to which he or she subscribes in so far as mediation is concerned.
The Mediator shall
during the course of the Mediation, declare to the parties any actual or potential
conflict of interest of which he or she becomes aware or ought reasonably to be
aware as such conflict arises and, having so declared, shall, unless the parties
agree to him or her continuing to act as the mediator, cease to act as the mediator,
act with impartiality and integrity and treat the parties fairly,
complete the mediation as expeditiously as is practicable having regard to the
nature of the dispute and the need for the parties to have sufficient time to
consider the issues, and
ensure that the parties are aware of their rights to each obtain independent advice
(including legal advice) prior to signing any mediation settlement.
Subject to subsection
the outcome of the mediation shall be determined by the
mutual agreement of the parties and the mediator shall not make proposals to the
parties to resolve the dispute.
The mediator may, at the request of all the parties, make proposals to resolve the
dispute, but it shall be for the parties to determine whether to accept such proposals.
OBLIGATIONS OF PRACTISING SOLICITORS AS REGARDS MEDIATION
A practising solicitor shall, prior to issuing proceedings on behalf of a client
advise the client to consider mediation as a means of attempting to resolve the
dispute the subject of the proposed proceedings,
provide the client with information in respect of mediation services, including the
names and addresses of persons who provide mediation services,
provide the client with information about the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and
the benefits of mediation,
inform the client of the matters referred to in
If a practising solicitor is acting on behalf of a client who intends to institute
proceedings, the originating document by which proceedings are instituted shall be
accompanied by a statutory declaration made by the solicitor evidencing (if such be the case) that the solicitor has performed the obligations imposed on him or her under subsection
in relation to the client and the proceedings to which the declaration
If the originating document referred to in
is not accompanied by a
statutory declaration made in accordance with that subsection, the court concerned
shall adjourn the proceedings for such period as it considers reasonable in the
circumstances to enable the practising solicitor concerned to comply with
and provide the court with such declaration or, if the solicitor has already
(1), provide the court with such declaration.
This section shall not apply to any proceedings, including any application, under
section 6A, 11 or 11B of the
Guardianship of Infants Act 1964,
section 2 of the
Judicial Separation and Family Law Reform Act 1989, or
section 5 of the
Family Law (Divorce) Act 1996
The Mediation Act 2017 has the following provision relating to Barristers.
Practising Barrister and Mediation
applies where, under another enactment or instrument made under
another enactment, it is lawful for a practising barrister to issue proceedings on behalf of a client who is not represented by a Practising Solicitor.
Subject to subsections
(4), obligations analogous to those imposed under
On a practising solicitor in relation to a client of the solicitor may be
prescribed, subject to such modifications as may be specified in the regulations
concerned, to be performed by a practising barrister in relation to a client of the
In prescribing, under
(2), obligations referred to in that subsection to be performed by a practising Barrister in relation to a client of the Barrister, the Minister shall have regard to any report under section 34(1) of the Legal Services Regulation Act 2015
to the extent that the report relates to the unification of the solicitors’
profession and the Barristers’ profession.
The Minister shall not prescribe, under
(2), obligations referred to in that
subsection to be performed by a practising Barrister in relation to a client of the
Barrister except after consultation with the Law Society of Ireland and the General
Council of the Bar of Ireland.