Mediation

Mediation is a type of alternative dispute resolution. It is perhaps the most well known form, mainly due to its use in family law disputes.

The goal of mediation is to help the parties come to a consensus on their own. The mediator does not impose a decision upon them. Rather he will work with both sides of the conflict to identify underlying interests beneath their positions and to find a sustainable, voluntary, and nonbinding resolution.

Although there is no legislation which covers the area of mediation, there have been several bills proposed and the Law Reform Commission recommends that such a bill be put in place. The publication of the mediation bill was promised to be released in early 2014. However, it is now late 2014 and there is still no sign of such a bill, implying that it may be some time before it emerges.

However, while there may be no Irish legislation, there is some guidance which comes from the European Union. The 2008 EC Directive on Mediation defines it as a process whereby two or more parties to a dispute attempt by themselves, or on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator.

Through this Directive the European Union intends to encourage amicable dispute resolution, particularly through the use of mediation *.

The Directive applies to cross-border disputes in civil and commercial matters, with the exception of revenue, customs or administrative matters or the liability of the State for acts or omissions in the exercise of state authority. It does not apply in Denmark.

The Directive therefore provides that Member States should authorise the courts to suggest mediation to the litigants, without, however, compelling them to use it.

Enforcement of agreements reached through mediation

Although the agreements reached through mediation are generally more likely to be implemented voluntarily, the Directive requires all the Member States to establish a procedure whereby an agreement may, at the request of the parties, be confirmed in a judgment, decision or authentic act by a court or public authority.

This will allow mutual recognition and enforcement throughout the EU of agreements reached through mediation, under the same conditions as those established for the recognition and enforcement of court decisions in civil and commercial matters and in matrimonial matters and matters of parental responsibility.

Suspension of limitation periods

Member States must ensure that the parties are not prevented from initiating judicial proceedings or arbitration following mediation due to the expiry of the prescription periods.

Confidentiality and mediation

Neither mediators nor those involved in the mediation process are compelled to give evidence in judicial proceedings regarding information obtained during the mediation process. This is permissible only: where necessary for overriding considerations of public policy, particularly to protect the physical integrity of a person, etc.; where disclosure of the content of the agreement resulting from mediation is necessary in order to implement or enforce that agreement.

Member States must also encourage the training of mediators, as well as the development and application of voluntary codes of conduct for the profession.

Its key features are that it is voluntary in nature, it is non-binding, it is offered through means of an invitation from a judge, rather than being forced upon the disputing parties. However, an agreement reached through mediation is enforceable.

It also states that member states are under the obligation to train mediators. Justice Kelly said that “in some cases persons are being chosen as mediators who had no formal training in the art. They do not have an appreciation of what mediation is about. Very often they do more harm than good and just add an additional layer of costs because the mediation will not be successful. These cases are becoming fewer.”

A key feature of mediation is that it is confidential. Information disclosed in mediation cannot be used in a subsequent case. Nor can the mediator be compelled to give evidence about what occurred during the process, unless it is contrary to public policy, or if it is necessary to implement and enforce the mediation agreement.

However, there are also Irish guidelines in relation to mediation. These come in the form of the Rules of the Superior Courts (Mediation and Conciliation) 2010. These are listed below

. In this Order:

“an ADR process” means mediation, conciliation or another dispute resolution process approved by the Court, but does not include arbitration;

“party” includes the personal representative of a deceased party.

2. (1) The Court, on the application of any of the parties or of its own motion, may, when it considers it appropriate and having regard to all the circumstances of the case, order that proceedings or any issue therein be adjourned for such time as the Court considers just and convenient and—

(i) invite the parties to use an ADR process to settle or determine the proceedings or issue, or

(ii) where the parties consent, refer the proceedings or issue to such process,

and may, for the purposes of such invitation or reference, invite the parties to attend such information session on the use of mediation, if any, as the Court may specify.

(2) Where the parties decide to use an ADR process, the Court may make an order extending the time for compliance by any party with any provision of these Rules or any order of the Court in the proceedings, and may make such further or other orders or give such directions as the Court considers will facilitate the effective use of that process.

3. An application by a party for an order under rule 2 shall be made by motion to the Court on notice to the opposing party or parties, and shall, unless the Court otherwise orders, be grounded upon an affidavit sworn by or on behalf of the moving party.

4. Save where the Court for special reason to be recited in the Court’s order allows, an application for an order under rule 2 shall not be made later than 28 days before the date on which the proceedings are first listed for hearing.

Essentially, a high court judge may now adjourn proceedings in order for the parties to take part in mediation. However, the courts are aware that it is not possible to force people to go into mediation, as it would unlikely be successful should one party not wish to resolve the conflict through alternative dispute resolution.

Mediation is most common in family law disputes. Some legislation, such as Children Act 1997 requires solicitors to discuss mediation in custody and access disputes

Section 5 / Section 6 of the Judicial Separation and Family Law Reform Act 1989 or Section 6 / Section 7 of the Family Law (Divorce) Act 1996 requires solicitors to advise clients on  mediation in judicial separation cases and to give names and addresses of mediators and mediation organisations