The Gazette 1994

GAZETTE

AUGUST/SEPTEMBER

1994

in detailed risk analysis, and

: ultimately makes the decision himself, '

mediated settlements tend to endure,

and there is less scope for post-

; settlement dissatisfaction and

negligence claims.

When to Mediate?

Mediation can be effective at both

! pre-litigation and litigation stages. At

the outset of a dispute, face-to-face

negotiations between the parties may

fail because the parties are entrenched

in their respective positions and will

not listen to each other. The early

introduction of a trained mediator can

help to diffuse antagonism, and to

create an atmosphere in which

settlement is more likely to occur.

Mediation can also be used after

! litigation has commenced, at any time

up to the trial date, or even after a

Notice of Appeal against the trial

verdict has been served. The litigant

may need to go through the processes

I of issuing proceedings or trial before

resistance to settlement is softened.

Advantages of Mediation

(a) Speed: once all the parties have

agreed to try mediation, the

mediation itself may be set up

within days or weeks. Mediation

may be considered as soon as all

the information necessary to

formulate a settlement position is

available.

(b) Cost: mediation may help the

parties to settle their case before

legal, managerial or "opportunity" |

costs become excessive or

disproportionate to the amount in

dispute, and without the expenses

of witnesses attending for lengthy,

costly questioning and cross-

examination.

process, details and outcome of

the dispute remain private, sealed

off from the attention of the

parties' customers or competitors,

and from local spectators and the

media.

(d) Flexibility and responsiveness: a

mediation can be held quickly and !

at a convenient location and time.

It may yield creative, tailor-made

settlement terms other than, or in

addition to, the payment of money

which may have been outside the

competence of a court or

arbitrator to order. Or a settlement

for the present, with negotiations

to be re-opened on the occurrence

of a Contingency, may be agreed.

(e) Preservation of valuable

relationships: often the parties

must have further dealings

together after the dispute is

resolved. Examples include family

law, partnership, family business

or succession disputes,

commercial leases, construction

projects and disputes with

business suppliers.

(f) Multiple parties or issues:

traditional negotiations may not

allow the time necessary to

accommodate all parties on all

issues in complex disputes. A

mediator will bring all parties

involved to the table, will co-

ordinate the discussions so that the

issues can be approached, clarified

or simplified in an orderly way.

(g) "Outbreaks of common sense": it

is much more difficult to sustain

an unreasonable position during a

detailed face-to-face analysis of

the case at mediation than it is in

correspondence.

(h) Improved communication

between parties, solicitors, or

solicitor and client: the mediator

helps each side to put their case

directly to their opponent and

helps to keep the discussions at a

civil and reasonable level.

The Mediator's Role

The mediator is trained to facilitate a

resolution between the parties not to

adjudicate. He or she has a fresh

perspective and an impartial view of

the dispute with which to help the

parties to analyse their respective

positions. The mediator's role may

include:-

• providing a safe, structured

environment for the venting of

frustrations, the trying out ideas in

private meetings or the "floating" of ;

settlement offers;

• pointing out the strengths and

weaknesses of each position as

devil's advocate, focusing on reality

and helping to change expectations;

• discovering and addressing

assumptions, needs, interests and

priorities that have not been

articulated or recognised;

• exploring novel options such as

non-monetary relief or structured

settlements.

I "Hoary Old Chestnuts"

How many solicitors have cases in

their filing cabinets which they would I

rather see resolved than face the time

input, the cost to their clients or their

practice, or the risk of losing or of not

being paid adequately (or at all!) of a !

court hearing? The prospect of

handling an awkward case or a "good"

client with unreasonable expectations

repeatedly during the years of

litigation ahead can be a petrifying

one! Mediation can provide an

opportunity to deal with such cases

and to place the responsibility for a

dispute firmly where it belongs - on

the shoulders of the client.

How Can I Refer a Case to

Mediation?

A solicitor, in consultation with the

client, should ask his/her opposing

colleague(s) if they and their client

would be prepared to try mediation for

a particular case. The solicitor for

each party should then contact a

reputable company or individual

providing mediation services, for

information on their mediation

procedures and codes of practice, to

discuss with their client. Once all

parties agree to mediation the

mediation company will make the

detailed arrangements for the

mediation, including the selection of a j

venue and of a trained, suitably

skilled, agreed person to act as

i mediator.

i Mediation - Already in Place in

Ireland

Mediation has already earned a

respected place for itself in the areas

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