Mediation is a dispute resolution process, in which parties in dispute/conflict come together voluntarily in an attempt to resolve their issues, in the presence of a mediator. It is a confidential process. It is private law, compared to the courts which are generally a public forum (except for family cases). It is flexible and cost effective.
A mediator is a trained facilitator whose job it is to take charge of the process of mediation. The mediator can be compared to an orchestra conductor, keeping the discussions on track. The mediator draws the agenda from the parties, prioritises the issues, clarifies matters, challenges misperceptions and generally drills down to discover the real needs of the parties.
No. The mediator is not a judge, and a facilitative mediator will not advise on a course of action, just help the parties to explore their options. In the event of a settlement the agreements will be drafted by the mediator into a document for approval. If both parties are satisfied it can be rendered legal in a number of ways. It can also be road tested for an agreed period, and adjusted if necessary, until a mutually satisfactory agreement is arrived at.
The courts in Ireland generally see the wisdom of mediation. A prime example of this is the position of the Family Mediation Service in The Family Court, in Dolphin House, Dublin. Parties approaching the court for a service in a family matter, such as custody, maintenance etc. are directed to the mediator to see if an agreed plan can be arrived at. This expedites the case and reduces the frustration associated with delays. It facilitates the Judges too by taking the ‘she said, he said’ out of the case. The judges seem to be really pleased with this, and some are trained in mediation too! The commercial court regularly suggests mediation too!
If the agreement has been made legally binding the courts can help to ensure the agreements are adhered to. Agreements entered into in voluntarily, by parties acting in good faith, are not readily broken. All of the legal options available to the parties prior to the mediation will still be available, and a return to mediation to iron out an issue can also be written into the mediated agreement.
Mediation is suitable for many civil matters, though there are some which may not be suitable. The mediator will assess this at the outset. A mediator will not take on a case which s/he thinks is unsuitable. A mediator’s presence is also voluntary.
A mediator will advise the parties that their solicitors should be consulted on legal matters, and in the matter of the agreements made. The parties own the agreements, and can and do make agreements which suit their own needs.
This depends on the nature of the negotiation. Mediation for separating couples generally takes about six sessions, over a period of about three months. There is no quick way to work out all of the arrangements necessary to dissolve a marriage. The space between sessions allows for testing and reality checking agreements made at each session. Mediation in the workplace can take one day, or more, depending on the number of parties involved. Commercial disputes can be simple, or highly complex, requiring expert opinion, witnesses etc. these can take a protracted period in the courts.
The mediator will be sensitive to the situation between the parties. It is always best for the parties if they can manage to talk directly. This is how they ‘have their day in court’, finally saying what is on their mind, in an honest and supported way. However most mediators will agree to caucus - that is, to shuttle between the parties, for some or all of the process. This is part of the management of the session. Online mediation is now becoming an acceptable process, particularly in commercial disputes. Telephone mediation is also employed in particular situations.
This depends on the nature of the matter. It is generally negotiated with the individual mediator. Mediators charge by case, by the hour, by the day or half day, guided by the nature of the case. It is always worth asking!
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