Mediation & Alternative Dispute Resolution
We provide an expert and accredited mediation service for all disputes in the farming and Agri-Business sector. For example disputes (including loan restructuring) with banks and credit institutions, disputes with Government and public bodies, farm input supply companies, purchasers of farm output and disputes between individual farmers.
What is Mediation?
Mediation is a confidential, informal and voluntary way of resolving a dispute with the help of a neutral third person – the mediator. The mediator works with both parties and helps them to reach a mutually agreeable solution.
Mediation procedures are used in a variety of contexts, including:
- Commercial contracts
- Workplace grievances
- Family relationships
- Community disputes
Mediation is a confidential process in which a mediator assists parties to a dispute to attempt by themselves, on a voluntary basis, to reach a mutually acceptable and voluntary agreement to resolve their dispute.
Mediation is a structured process whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator.
The advantages of Mediation compared to Court proceedings
- Less Costly – a fraction of the cost of undertaking a court case
- Less Uncertain –the parties remain in total control at all times
- Less Time consuming
- Less damaging to business and personal reputations- as the whole mediation process is conducted on a confidential basis rather that in open court
- Less contentious – mediation is not based on the formal and advocacy rules which govern court proceedings.
NEW LEGISLATION ON MEDIATION
According to the Department of Justice and Law Reform, the Mediation Bill will be published in 2013. Last year, the Government agreed the general outline for draft legislation on mediation, details of which are outlined below.
Minister Shatter secures Government approval for the general scheme of a Mediation Bill
The Minister for Justice, Equality and Defence Mr. Alan Shatter, T.D. announced today that he had secured Government approval for the general scheme of a Mediation Bill which is published today.
The Minister said “The Mediation Bill will give effect to the undertaking in the Programme of the Government for National Recovery (2011 – 2016) to encourage and facilitate the use of mediation to resolve civil, commercial and family disputes.”
The Minister added “The general objective of the Bill is to promote mediation as a viable, effective and efficient alternative to court proceedings thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress involved in court proceedings. I am anxious to ensure that individuals and companies engaged in a dispute regard resolution of their dispute through mediation as preferable to court litigation.”
The Minister said that he wanted to highlight the following elements in the proposed Bill:
· the imposition of a statutory requirement on solicitors and barristers to inform their clients about the possibility of using mediation as an alternative means of resolving disputes prior to commencing court proceedings;
· a requirement that all communications between parties as they try to resolve a dispute using mediation shall be confidential;
· it will remain for the parties themselves to decide whether to engage in mediation and, indeed, to decide on the terms of any agreement arising from the mediation;
· the provision of a statutory basis for the courts to invite parties to consider the mediation option and to adjourn court proceedings for the duration of the process.
The Minister said that he intended forwarding the draft Bill to the Joint Oireachtas Committee for Justice, Defence and Equality for their consideration. Any views which the Committee submitted would be taken into consideration prior to finalisation of the Bill for publication.
The Minister said that he wanted to make it clear that “this Bill is not intended to replace existing systems for resolving disputes outside of the courts system such as those operated by the Employment Appeals Tribunal and Labour Court in the employment field and the Residential Tenancies Board in relation to landlord and tenant disputes. Instead, the Bill seeks to integrate mediation into the civil justice system as a mainstream alternative to court proceedings.
1 March, 2012
Extracts from the Report of the OIREACHTAS Joint Committee on Justice, Defence and Equality on hearings in relation to proposed legislation on Mediation
All those who participated in this process broadly welcomed the proposed legislation and were of the view that this legislation would provide for greater access to justice for citizens. The proposed mediation legislation aims to encourage and facilitate the use of mediation in civil, commercial and family law disputes. This aim was welcomed by participants.
It was noted however that the use of mediation is already well-established in the family law setting. In particular, solicitors in family law disputes already have a statutory duty to advise their clients about the option of mediation before commencing litigation. In addition, the Family Mediation Service, which has now been integrated into the Legal Aid Board, has been offering an effective mediation service for families facing relationship breakdown since 1986.
The following are some of the main points raised:
Public Awareness: The Committee was told that public awareness of both the option of mediation and the procedures involved in mediation needs to be raised. It was submitted that a large number of parties involved in disputes seek recourse through the Courts system without considering mediation because they are neither aware of nor do they fully understand the process. While access to the Courts is still an option, such experience can be a long, costly and traumatic. It was put to the Committee that mediation can result in a resolution using a non-adversarial process in a shorter time and at a significantly lower cost to both parties. Raising awareness of the mediation process is essential and it must be distinguished from other methods such as arbitration.
Mediation differs from Arbitration: It was suggested that arbitration is similar to litigation whereas mediation focuses less on what has happened and is not concerned with issuing judgements.
Explanatory notes on some of the provisions the proposed Mediation Bill
The Bill provides that a solicitor acting for any person must, prior to initiating civil proceedings, advise the person to consider mediation where such processes are appropriate for resolving the dispute.
A court can—
• require the party to confirm that mediation was considered as an alternative means of settling the dispute
• enforce a mediation agreement, and
• invite, at the request of a party or of its own motion, the parties to engage in mediation or direct their attendance at an information session
The parties alone have the power to determine whether an agreement has been reached and the manner in which is becomes enforceable.
A mediated agreement is enforceable as a contract at law where it is in writing and signed by all the parties and the mediator. However, this will not apply where it is expressly stated to have no legal force until incorporated into a formal legal agreement or contract to be prepared by either party’s solicitor and signed by the parties.
A court may, either on the application of any party involved in proceedings or of its own motion, and where the court considers it appropriate having regard to the circumstances of the case, invite the parties to consider using mediation to settle the proceedings.
Where the parties decide, on the basis of the court’s invitation, to use mediation, the court must adjourn the proceedings and may make an order extending the time for compliance by any party with any provisions of the relevant Rules of Court or of any order of the court in the proceedings, and may make such orders or give such directions as the court considers will facilitate the effective use of mediation.
The Bill provides general guidance in relation to the payment of fees and costs associated with the mediation. It states that, unless otherwise agreed between the parties or ordered by the courts, the fees and costs shall be shared equally by the parties, shall be paid in advance and, in the event that the mediator withdraws from the case any unearned fee or unspent cost shall be returned to the parties.
Factors to be considered by court in awarding costs
The Bill provides that:
In awarding costs in respect of proceedings, a court may, where it considers it just, have regard to—
(a) any unreasonable refusal of a party to consider using mediation where such a process had, in the opinion of the court, a reasonable prospect of success, and
(b) any unjustified refusal of a party to attend an information session following a direction
(2) In considering whether a refusal referred to in subhead (1)(a) is unreasonable, or refusal to attend an information session referred to in subhead (1)(b) is unjustified, the court shall have regard to such matters as it considers appropriate, including—
(a) whether the costs of mediation would have been disproportionately high, and
(b) whether any delay in setting up and attending mediation would have been prejudicial to a party.
(c) the overall circumstances relating to the proceedings and the conduct of the parties.
(3) Notwithstanding subhead (1), this Head shall not apply to family lawproceedings which are heard in circumstances:
(a) where a party reasonably feared for his or her safety,
(b) where a party reasonably feared for the safety of a dependent child,
(c) where a party lacked resources for his or her own support,
(d) where a party lacked resources for the support of a dependent child
(e) where a party reasonably feared the loss of the family home, or that the
family home would be rendered uninhabitable or the dissipation or
disposal of assets to which proper claim could be made, or
(f) where a delay of court proceedings could otherwise be detrimental to
the welfare of a child.
Thus, where a court has invited parties to consider using mediation, the court, in awarding costs in the proceedings may, where it considers it just, have regard to any unreasonable refusal of any party to consider using mediation where such a process had, in the court’s opinion, a reasonable prospect of success.