12 GAZETTE 15 September 2011
MEDIATE, OR NO? Exploring Alternative Dispute Resolution
Mediation – it’s the new kid on the block FOR THOSE considering going to court to solve a dispute, be it a business, family, or just the ordinary disputes that occur in day-to-day life, Alternative Dispute Resolution
(ADR) is now an alternative to court. Until recently, people felt that their only recourse to justice, in dealing with civil/commercial or family issues was to “have their
day in court”. This can often prove more of a hindrance than a problem solver. Sometimes it resulted in the failure of viable companies and the destruction of good business relationships. This, in turn, caused a lot of stress resulting in marital problems, breakdown and, again, more court proceedings. Under these circumstances, mediation is fast becoming the “light at the end of the tunnel”. It is now mandatory in civil and commercial courts that parties considering going to court must be given the option of mediation and informed of its advantages prior to their court appearance. The courts can take a “poor view” of parties who refuse to undertake mediation, and final decisions can be swayed by the reluctance of the parties to undertake same. Mediation is equally as important in Family Law cases, where the cost of court may be very high,
Mediation is becoming a popular alternative to the courts when it comes to dispute resolution
both on an emotional and financial level. Therefore the Family Law Courts are now in the process of advocating mediation as the least painful and most costeffective form of dispute resolution. Mediation is becoming very popular in Ireland as both the judiciary and the disputing parties see the advantages of its flexibility, problem-solving and its ability in time-saving, both for the disputing parties and courts viewpoint. Process of mediation
Mediation begins with either of the parties in dispute contacting the mediator directly or it may be a solicitor referral to mediation in order to comply with legal requirements. Initially, a meeting is set up during which the mediator explains the process, the rules and role of the mediator. At this time the parties are informed that Mediation is voluntary,
confidential and its aim is to come up with an agreement satisfactory to all. Clients are encouraged to have independent legal advice at all stages. However, they are obliged to refrain from litigation during the course of mediation. An agreement to mediate is signed and then the process can be continued in both joint/ single sessions. The mediator’s role is to guide the discussion and to remain impartial. Mediators do, of course, act as “devil’s advocate”, ask difficult questions and prompt replies that initiate solutions. Upon conclusion a “Memorandum of Understanding” is drawn up, signed by the parties and taken to their respective solicitors to make it legally binding. By this process the parties themselves have resolved their own issues. Going to court to solve disputes, whether they arise in the course of someone’s business or pri-
vate lives, is an arduous, time-consuming, expensive and often traumatic process. In court, judgments and adjournments can be time-consuming and, when a ruling is finally reached, it is often impossible to adhere to, due to the lack of input from the disputing parties. From once you enter court there is little or no confidentiality. When your case is being heard anybody can walk into the courtroom, can hear all your business, and report on their findings. When compared to the mediation process, it is obvious that many of the disadvantages of court are eliminated. As a rule, mediation costs are substantially lower than those of court proceedings. Mediation can resolve complex disputes in as little as a day. There are no waiting lists or adjournments. The parties in the mediation control the process,
and the outcome. No agreement or solution will be imposed. This in itself helps to maintain friendships – mediation is a lot less destructive to private and commercial relationships as parties enter mediation in good faith and with the intention to settle. Mediation items discussed, and their outcome, are completely confidential between the mediator and the parties concerned. Another advantage is that parties come to a mutually beneficial solution that can become legally binding. This happens when parties have agreed some or, hopefully, all of the items on the agenda. For instance, an accredited mediator has the authority to create with the parties a document called a Memorandum of Understanding. This document is then given to a solicitor who will take it to court on your behalf, to have it “rubber stamped”. It then becomes legally binding, therefore, you personally never need to attend court. In conclusion, it was asked at the start of the article should you “mediate or not”? It seems clear we would all agree to definitely mediate. For further information, contact Citywide Consultants & Mediators, Rosie Gallagher FCPA, C Dip. AF, telephone: 01 219 4444, mobile: 087 666 9887, email: rosie@cwcm ie or visit www.cwcm.ie