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Sunday 11 December 2016

A cheaper way of resolving disputes away from courts

Oliver Ryan-Purcell

Published 05/07/2011 | 05:00

Regarding John Shirley's article concerning exorbitant fees on page four of the Farming Independent of June 28, other problems can also beset litigation in the courts.

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These include delay, lack of control by the parties, lack of availability of judges and uncertainty of outcome, not to mention the publicity and the stress on the parties.

There is an alternative and vastly cheaper means of dispute resolution known as alternative dispute resolution or ADR.

There are various types of ADR, including mediation.

While it's not possible to outline all aspects of mediation in a short description, basically, it can be said that the mediator, who is generally specially trained and accredited and will be completely impartial, informs the parties of the process and organises a neutral venue agreeable to the parties with comfortable rooms for each side.

On the day, the mediator moves between the rooms and generally nudges each side towards resolution -- only bringing such information from one side to the other as he or she is strictly authorised to do.

A stage is generally reached when the parties are brought together in one room with the mediator to iron out final details.

The whole procedure is completely voluntary, confidential, private and without prejudice and either side is completely free to leave if and whenever they wish.

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The ground rules are sorted in advance in a written agreement to mediate. Contrary to the court process, the parties are in charge of the mediation process.

Nothing arising out of the mediation is binding until such time as a resolution is arrived at, committed to writing and signed. In most cases, it is vital that the parties would have independent legal advice before actually signing the mediation agreement.

The mediator is not an adviser or a judge and does not make decisions binding on the parties.

Most mediations are completed in a day - though often a long day.

The process is widely used in disputes involving wills, succession, the workplace, debts, title to property, neighbours, landlord and tenant, business and partnership problems and so on.

An apology is possible without compromising the legal position of the person giving it.

The cost of the mediator for the day, and for the necessary work beforehand, which might be around a few thousand euro (as opposed to possibly hundreds of thousands in the court process) is divided between the parties.

Furthermore, a consequence of the resolution is often the resumption of good relationships between the parties.

Actually, the process is very useful also at the stage where there is just a disagreement or even different viewpoints, as opposed to a dispute as such. In general, as you can imagine, the sooner the process is engaged in, the better.

For the process to work, both sides have to want it to work.

The process is being actively encouraged by both judges and the Government as a means of cutting costs to the State -- as well as being of great benefit to society generally.

Oliver Ryan-Purcell is an accredited mediator and consultant solicitor. He recently joined the new mediation division of the Co Tipperary-based Rea Group consultants

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