Many people will be familiar with the term 'Mediation' having come across it or read about it in various different situations.
Mediation is a form of dispute resolution. Our current adversarial legal system is often criticised as being too slow and too expensive. People who are involved in disputes sometimes feel the need to regain control over the decision-making process rather than put their faith in a legal system which can result in unpredictable and unwelcome outcomes.
It is often the case that no party to a dispute really wants to go to court except in certain circumstances, for example, where setting a precedent is desirable.
Mediation is a voluntary non-binding and 'without prejudice' process in which a specially trained third party intervenes in a dispute and attempts to bring the parties together to work towards an agreement that resolves their differences.
The fact that all of the negotiations are 'without prejudice' means that nothing that is said can be used in any subsequent court proceedings.
If anyone is dissatisfied with the mediation process, either party (or the mediator) may terminate the mediation at any time. It is then open to the claimant to proceed with his or her claim through the courts.
One of the main advantages of mediation is that mediation sessions can be set up very quickly, in contrast to arbitration or litigation. In commercial disputes, in particular, it can be very important that a dispute is determined quickly so that normal business can be resumed with minimum cost and minimum time wastage.
The mediator is not a judge and does not make a decision in favour of one side or the other. The function of the mediator is to try to help the parties to reach a settlement that is acceptable to both.
Usually if an agreement is reached at the end of the mediation process the terms of that agreement are set out in a legally binding document and signed by all parties in the presence of their legal representatives.
There is a general view that mediation is a good idea and that it should always be explored before either side goes down the route of issuing court proceedings. Our judges generally encourage parties to try to settle their disputes and have, in certain cases, directed the parties to participate in mediation rather than proceed with a full public hearing of the case.
Since the introduction of case progression/case management in relation to family law circuit court proceedings, mediation is becoming more common in practice.
One of the main advantages of mediation is that it has no formal rules or procedure so the mediator can use the process flexibly to suit the circumstances of the particular dispute.
He/she can have open sessions with all the parties present and then adjourn to have one-on-one sessions with the individual parties to try to identify the main stumbling blocks or grievances which exist.
In order for mediation to succeed, it is essential that both sides come to the table with a genuine interest in resolving the matter. If one side is not prepared to move from its position, then the mediation will inevitably fail and the dispute will end up in court.
Gearóid Ryall is an Accredited Mediator and a partner in the firm of Mannix & Company, Solicitors, 12 Castle Street, Tralee. Phone 066 7125011. Email firstname.lastname@example.org