Q: I am involved in a legal dispute and my Solicitor has suggested that I consider Mediation. What is involved in the process and what are the advantages and disadvantages?
A. Mediation is a collaborative process which provides the opportunity to resolve disputes by negotiation and agreement, using the assistance of a Mediator who is a neutral party.
The Mediation Act 2017 recently came into law and places an obligation on Solicitors to advise their clients, prior to issuing legal proceedings, to consider mediation as a means of dispute resolution. However, not all disputes are appropriate for mediation and a client may choose not to participate in mediation and to continue with court proceedings. Mediation can be considered as an option at any period up to and including during the course of the trial.
Under the Mediation Act 2017, prior to the commencement of mediation the parties and the proposed mediator must sign an “agreement to mediate”. The agreement must set out:
(i) The manner in which the mediation is to be conducted;
(ii) The manner in which the fees and costs of the mediation will be paid;
(iii) The place and time at which the mediation is to be conducted;
(iv) The fact that the mediation is to be conducted in a confidential manner;
(v) The right of each of the parties to seek legal advice;
(vi) The manner in which the mediation may be terminated.
Section 18 of the Mediation Act 2017 provides that from the date of signing the agreement to mediate, time will effectively stop for bringing claims under the Statute of Limitations until 30 days after either a mediation settlement is signed (by the parties and the mediator) or the mediation is terminated, whichever occurs first.
The major advantage of mediation is that it encourages parties to resolve their difficulties without having to go through an expensive trial process. The dispute is also likely to be resolved at a much earlier point in time than going to trial.
Furthermore, the process is less contentious and therefore may assist to preserve any on-going or future relationship between the parties.
The disadvantage of mediation is that where there is a disparity of knowledge and/or power between the parties the Mediator does not have the same powers of probity as the Court. In a courtroom setting, there are many tools to investigate the truth of the matter for example the discovery of documents and powers to compel witnesses.
Also if the dispute is not resolved, there will have been costs incurred and the parties will then have to incur further costs proceeding to Court.
*Karen Bohane is a Partner in Cantillons Solicitors of 38/39 South Mall, Cork an award-winning law firm practising in all areas of litigation. Since the firm was founded in 1980, they have been involved in precedent making cases, amongst them Best V.
Wellcome, Louise O’ Keeffe v. Ireland and most recently Costello V. HSE, a medical negligence claim in which they achieved damages of €17.8 million, the highest ever award in Irish personal injury litigation to date. Cantillons Solicitors received the award of Munster Law Firm of the Year (Over 5 Solicitors) at the AIB Irish Law Awards 2016.
*This weekly column is a readers’ service and is not intended to replace professional advice.
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