Note to Solicitors:

Section 14 of the Mediation Act, 2017 requires that before a plaintiff’s solicitor issues court proceedings he/she must advise the client not only to consider mediation as a means of attempting to resolve the dispute, but also provide information in respect of mediation services, and very importantly, of the advantages, benefits and certain features of mediation.

I hope that what I discuss below helps you to provide this necessary information and advice to your clients.

Avoiding Court:

Parties who wisely choose mediation to try and resolve their dispute amicably, rather than doggedly pursue their litigation to the end, do so for a number of very good reasons.

In the majority of cases mediating parties share features that will have enhanced their chances of success at mediation, for example:

• A willingness to explore compromise/zones of potential agreement (‘ZOPA’)

It is really helpful at mediation if each party’s solicitor has been able to explain the process to their client prior to the mediation, and to have helped the client to identify possible ways in which a settlement could be reached. Obviously that means helping the client to come to terms with the possibility that some concessions and compromise may be necessary – in other words to realise that holding out for 100% success is probably unrealistic.

A mature consideration of the ZOPA will usually involve considering not only the strengths of the client’s case, but also its possible weaknesses. It will also involve a balanced consideration of what strengths there may realistically be in the opponent’s case.

This process of reality-checking with the client before the mediation day can be invaluable and can save time on the day itself.

• A willingness to adopt positive pragmatic approach to resolution

A positive and pragmatic approach to settlement means that each party should try and get away from their fixed positions of who is to blame for things that have caused the dispute and what should be done about it, and instead look to the future and find a solution that best serves the vital interests of both parties to the best possible degree in all the circumstances that now exist.

Sometimes you cannot fix the past. What has happened cannot always be undone. But very often there is a way forward in which each party can gain something of value to them, rather than have a court decide who wins and who loses. Solutions can be explored that supersede the mere attribution of blame and retribution.

• An acceptance that they may not have 100% success in court

A realistic appraisal of a party’s chances of success if the case was to end up in court can help to change a client’s mindset prior to mediation. It can indeed encourage the client to avail of mediation. It is rare for any case to be a ‘dead cert’ so to speak. It will be something that the mediator will usually want to explore in a non-judgmental or threatening way during the mediation. There are many variables and uncertainties in most cases which will prevent a prudent solicitor from advising the client that they will gain a 100% success. It helps if such a discussion with the mediator does not come as a shock to the parties, and is therefore something that the client has already had the opportunity of thinking about.

• A desire for speed of resolution

Delays in litigation are so well-known and recognised that it is obvious that a settlement can be achieved through mediation far more quickly. Bear in mind that by far the majority of cases do settle at some point prior to a hearing. But the problem is that it sometimes takes a year or more to reach that point.

I have always been in favour of trying to find ways to bring forward the point at which that settlement occurs. Changes to the Superior Court Rules have rarely had much effect in speeding things up.

But mediation is a process which parties can choose for themselves. They are in control of that process. They can choose when to engage in mediation rather than having to wait until a hearing date has been allocated to the case, and then settling the case at the door of the court, as they say.

• A desire to minimise legal bills

It is surely self-evident that every party to a dispute should wish that it costs as little as possible to resolve it. In an ideal world a party would wish to win the case in court and then recover their costs from the other party. However there is a risk that this may not happen.

The longer a case remains in the court system and unresolved the greater the level of costs that will inevitably be incurred.

However, in every case there is a point at which settlement discussions can take place responsibly if the parties are willing. Mediation at as early a point as possible will greatly reduce the costs incurred. This should act as a strong incentive for parties to go to mediation. There is little downside to at least trying mediation because anything that occurs at mediation is without prejudice to any litigation that may have to continue after the mediation has concluded without an agreement being reached.

• A desire for privacy and confidentiality

Nobody likes to air their dirty linen in public where that can be avoided. Most disputes involve the airing of matters that are private either in a personal sense or business sense. They are things that most would not want to see reported on in tomorrow’s newspapers. Parties who choose mediation are making a wise choice where they wish the details of their dispute to remain private and confidential. By signing a mediation agreement prior to or at the commencement of the mediation day, each party and their advisers (and the mediator) sign a mediation agreement which includes a confidentiality and non-disclosure clause, thus ensuring that the mediation is a private and confidential space within which to explore the possibilities for settlement.

• A desire not to further damage relationships

Many disputes are of a kind where relationships either personal or commercial have suffered damage, or at least there is a risk that this may happen. Going to court where the parties each have to give sworn evidence against the other party, and then be cross-examined on that evidence only serves to reinforce and increase the damage to the relationship. There will be accusation and counter-accusation, blame and counter-blame. In these difficult circumstances it is probable that relationships once capable of being preserved or restored will become sundered forever.

This is a very good reason why parties should wish to choose mediation as a process to try and resolve their differences.

• A desire for finality

Many disputes are of a kind where relationships either personal or commercial have suffered damage, or at least there is a risk that this may happen. Going to court where the parties each have to give sworn evidence against the other party, and then be cross-examined on that evidence only serves to

Many people who choose mediation are attracted by the fact that where settlement is reached that is the conclusion of the matter. By doing so, they avoid the possibility that even if they win their case at first instance in court there always remains the possibility that the losing party will lodge an appeal. An appeal will only add further delay to the ultimate result, and of course further legal costs to those already incurred. The removal of this risk is an important incentive to mediate instead of to litigate.

• A fear of the unknown court arena

For most parties going to court to resolve some dispute in their business or personal life will be, hopefully at least, a ‘’once in a lifetime experience. It takes place in an environment that is unknown to them where they are surrounded by lawyers dressed in strange formal clothing and speaking in a legal language with which they are completely unfamiliar. They will probably not even be able to understand and follow most of what is going on. This is an alien and intimidating arena in which to try and resolve their dispute, whatever its nature. They have no control over what is taking place. It is as if they are on a runaway train.

Most parties who choose mediation see it as a means of avoiding the stressful experience of attending court and giving their evidence I open court and being cross-examined in relation to it.

What is success at mediation?

At a superficial level the obvious sign of success is a signed enforceable settlement agreement at the end of the mediation day. But in many cases the eventual success of a mediation  becomes evident only after a few days have perhaps elapsed after the mediation day concluded without an agreement.

It is common enough for the mediation to end without agreement on that particular day, but where the parties have stayed in communication though their solicitors, and have eventually arrived at an acceptable resolution of the dispute with having to reconvene the mediation.

In that scenario the mediation process will usually have helped the parties to air their grievances, clarify the issues in dispute, get answers to questions that they needed to ask and discuss, and explain to the other side what really matters to them as far as getting an agreement is concerned. That process of discussion and clarification can be a very positive experience for parties in dispute. That too is success for the mediation.

Catharsis:

Where emotions have been running high in the weeks and months leading up to the mediation, the mediator can assist the parties to find a safe way of communicating to the other side why they feel as strongly as they do. This can be done in a private and confidential space.

Many people find it challenging to express strong emotions to the other party. Others will find it hard to be confronted with strong emotional expression. But a skilled mediator can help each party to navigate these delicate areas of their lives. Sensitively and carefully managed, each party can find it to have been a cathartic experience which frees them up to look constructively at a future freed of the shackles which these negative feelings have bound them for so long. Maybe it requires confession and forgiveness. Maybe that is difficult. But the mediator can assist the process, so that each party can focus on the brighter future ahead instead of the issues in the past that have divided them.