Mediation is a dispute resolution process which is given special recognition in our civil justice system by the Mediation Act 2017 (the Act).
What is mediation?
Mediation is defined in the Act as “a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute.”
Because mediation is voluntary, a person cannot be required to use mediation to resolve their dispute. All of the parties must agree to use mediation to try to resolve the dispute.
Even when the parties have agreed to use mediation, it remains voluntary. The parties are free to decide at any time not to continue.
Only the parties decide if, when and how to resolve their dispute in mediation. The terms of any resolution agreement reached between the parties only becomes binding on them when set down in writing and signed by them. The Act provides that, once a settlement agreement is concluded and signed by the parties in mediation, it can be enforced like any other binding contract.
Your solicitor’s obligations
By law, before you start court action, your solicitor must advise you to consider mediation to resolve your dispute. He or she must also give you information about:
- Mediation services available in the State.
- The possible advantages for you and the other parties of resolving your dispute otherwise than by court action.
Advantages of mediation
Mediation offers several possible advantages for resolving a dispute.
- Engagement between the parties is facilitated by a neutral, independent third party called the mediator.
- The parties decide if, when and how their dispute is resolved.
- The parties may avoid some or all of the risk and cost associated with court action.
- All communications between the parties and the mediator are protected by confidentiality. Because these communications happen with a view to resolving a dispute, they may not be used or referred to elsewhere if matters are not finally resolved in the mediation.
- Mediation is a flexible, informal process that can be organised at short notice. This may allow the parties to conclude a resolution agreement in a short time and much faster than is usually possible by court action.
- Resolution using mediation can allow parties to continue or resume their previously successful contractual or other relationship.
Mediation may not be suitable for every dispute. Your solicitor will advise you about all resolution options available and which is most suitable for resolving your dispute.
What are the risks?
There is no guarantee that you will reach agreement through mediation. If this happens, you may have to go to court.
A mediator’s obligations
The Act requires mediators not to act if they cannot do so impartially or have some other conflict of interest.
Mediators must provide details of their mediator qualifications, training, experience and continuing professional education as mediators. They must provide a copy of the code of conduct to which they subscribe.
Mediators must conclude the mediation expeditiously, they must remind parties of their right to take independent legal or other advice before signing a settlement agreement and their fees must be reasonable and transparent.
The mediator may make suggestions about how a dispute may be resolved only when requested to do so by all parties.
Selecting and appointing the mediator
The choice of mediator is critical. You will find a list of solicitor-mediators on the Law Society website
If you are unable to choose a mediator, the Law Society can nominate a mediator for you when requested by all parties.
Preparing for mediation
Negotiations that take place in mediation are similar to other negotiations and parties must be properly prepared.
Parties should have considered at length how it may be possible to resolve the dispute. Because the mediator does not decide how matters will be resolved, it is for the parties themselves to work this out. If parties have not fully considered possible alternative ways to resolve matters, it may be less likely that a resolution will be agreed in mediation.
Parties should have met with or spoken to the mediator in advance. Parties should know how much time and money the dispute has cost them to date. They should have considered what will happen in the future if matters are not finally resolved in the mediation and they should have estimated how much more time and money will need to be spent trying to resolve matters elsewhere.
Parties should have taken professional advice, including legal advice as required, in advance. This can help them to fully understand their legal rights and obligations in relation to the matters in dispute.
How your solicitor can help you
These are just some ways that your solicitor can help you before and during mediation:
- Helping you to understand the process and answer questions, and decide to use mediation.
- Advising you how to make or accept an offer to mediate.
- Helping you to identify, select and appoint a suitable mediator.
- Advising you about the terms of the agreement to mediate / rules of engagement.
- Assisting you in briefing the mediator.
- Attending you at pre-mediation meetings with the mediator.
- Advising you about selection, appointment and briefing experts.
- Giving you legal advice or opinion on your legal rights and obligations.
- Helping you to assess your legal and commercial strengths and weaknesses, and those of the other parties.
- Helping with scheduling costs (including legal costs) you have incurred to date in the dispute.
- Estimating costs (including legal costs) that would be incurred if the issue is not resolved in mediation.
- Assisting you to prepare a negotiation strategy or settlement range in monetary cases.
- Assisting you to identify needs and interests in having the dispute resolved in the mediation.
- Engaging in alternative scenario-checking and the best or worst alternatives to no mediated settlement.
- Assisting you in drafting a position statement for joint meeting.
- Assisting you in deciding who will attend mediation meetings with you.
- Assisting you to identify possible alternative options for resolution and
- Assisting you to prepare generally for the mediation.
- Advising you when the mediation settlement is being drafted.
- Assisting the mediator as appropriate as you request.