This process is widely used in disputes involving wills, succession, debts, title to property, neighbours, landlord and tenant, business and partnership problems etc. In many other countries and increasingly so in Ireland, mediation is used where appropriate as an alternative form of dispute resolution.
It can occur prior to, or at any stage during, the court process.
Mediation introduces a neutral third party when negotiations have failed. The role of the mediator is not judgemental, nor does he/she take a position on behalf of one party or the other. The underlying principle is to permit the parties themselves to make the ultimate determination resolving the issue, with the mediator's conciliatory assistance.
Their role, then, is to facilitate, rather than to impose, a settlement. The process of mediation is not adversarial, so it does not resemble an actual trial. 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 separate 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 and an agreement is committed to writing.
The whole procedure is completely voluntary, confidential, private and without prejudice, (so it is non-binding and will not affect anybody's rights if no agreement is reached.) Either side is completely free to leave if and whenever they wish. The parties come up with their own solution as opposed to having one imposed on them by a judge or arbitrator. The mediator is not a counsellor, adviser or a judge and does not make decisions binding on the parties. 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.
Most mediations are completed in one day, but family breakdown mediations tend to occur over a number of shorter sessions with a few days between each.
Statistically, the success rate of mediations is extremely good - something in the order of 70pc. It is very worthwhile, and often it is compulsory to make use of mediation where relevant and appropriate. It is certain that mediation will increasingly become part of the Irish system of justice. However, for the process to work, both sides have to really want it to work.
Arbitration Arbitration is a process whereby two parties in dispute agree to be bound by the decision of an independent third party acting as an 'arbitrator'. An arbitrator's function is similar to that of a judge but the process is less formal. The arbitrator will hear the evidence and arguments submitted by the parties and reach a final decision which is called an 'award'.
The benefits of using arbitration to resolve disputes are that it is a fair, informal and confidential process. It is generally an expedient method of addressing and resolving disputes as it avoids the delays associated with the overburdened court system. It is generally, but not always, a more cost-effective way of settling disputes without having to go to court.
The arbitrator is usually an expert in the subject matter of the dispute. For example, arbitration in relation to a dispute involving farming issues may have an agricultural consultant who is known to have specialist knowledge on the subject at issue, as arbitrator.
Arbitration is similar to court litigation in that it usually involves pleadings and a full hearing based on the law of evidence applicable to court proceedings. The parties in dispute may have full legal representation to include barristers.
Generally evidence will be taken under oath. The arbitrator is either agreed by the parties or appointed by a representative body agreed by the parties for the purpose.
An arbitrator's award is final and binding and there is no appeal against an arbitrator's award.
However, a party may apply to the High Court to set aside an arbitrator's award in certain circumstances, but if an application is made to set aside the arbitrator's award, and that application is refused by the High Court, there is no appeal against that decision to the Supreme Court.
I have acted as an expert court witness for over 30 years and many of the cases I dealt with concerned disputes of one kind or another.
There are rarely any real winners and the psychological and financial toll can be considerable on the parties in dispute. ADR offers a real alternative to court action and should be given serious consideration as a means of resolving disputes.