March 29, 2022
Thankfully, mediation is taking hold more in Ireland but it has taken quite some time for legal practitioners, barristers and clients to really embrace it compared to other jurisdictions. With the passing of the mediation Act 2017, the option of mediation has been given statutory recognition as an alternative to proceeding to court on a dispute. An effective Mediator utilizes background experience and acts as an unbiased conduit who disseminates information normally between two different rooms for the parties with their permission. mediation is a facilitative and confidential process and although the courts can now impose costs sanctions on a party for not mediating if the circumstances are right it is still technically speaking voluntary.
Traditionally, mediation has been more popular in the UK than in Ireland, which is ironic given that our court system is slower and can be far more expensive in the long run. This is something that is important for all businesses, as quite simply there is no business that is ever immune from the possibility of litigation.
Businesses should be aware that all solicitors now have an obligation to advise potential litigants on mediation as a potential course of action. Mediation basically gives the parties control to appoint an objective person to help them try to reach a confidential settlement agreement (between the parties) that will prevent a matter proceeding to court.
Mediation should be a cheaper, quicker way to get to the root of what the dispute may really be about and find a resolution.
The key for the client is that it does not run up a separate layer of costs and that mediation is an effective forum. A bit like the introduction of the Personal Injuries Assessment Board on personal injury claims, the entire objective is to give parties more control over their own process and to seek to avoid the litigations system’s often wasted costs. Parties should look very carefully at the alternatives to litigation and what is being presented to them as well as a strategic assessment of how their legal case should be presented and by who. A lot of cases are different but the ultimate purpose of mediation remains resolution which is achieved through effective, straightforward communication.
Mediation is still misunderstood by many practitioners. More solicitors are currently exercising their rights of audience both in court and in alternative dispute resolution forums.
It is key that a costs-conscious, efficient process takes place in Meditation that reduces costs does not add to them.