Category: mediation

The Carpenter family settled their case against the HSE over the circumstances of their son’s birth which left him with cerebral palsy this week.  Their lawyer, Roger Murray, when invited to comment on the legal process said that mediation has to be the way forward in cases such as these.

This is a seismic shift in mindset from an era when many litigators’ perception of themselves was as the gladiators of the legal world. They regarded mediation as the unmanly touchy-feely option not suited to the bear-pit of proper litigation. How things change as mediation moves firmly front and centre into the mind of the litigator, when deciding how to run a case best suited to the client and their circumstances.

Mediation agreement

Before the mediation itself begins the parties would be expected to sign up to  an agreement to mediate.  A copy of the agreement to mediate is generally given to each party after the mediator has had an opportunity to speak with them separately in advance of the mediation proper and explain the process.

What should the  agreement to mediate contain?

The agreement to mediate should be written in clear, transparent language so that it is clear to non- legal parties what the process is, what happens in the event of agreement (the legally binding or non-binding nature of the agreement)  and; what happens in the event there is no agreement.  It needs to say something about:

• The confidentiality and the Without Prejudice status of the mediation
• The conduct of the mediation – who will attend/time/date/location.  What documents should be given to the mediator etc.
• The apportionment of the cost of the mediation
• An acknowledgement that no terms will be legally binding until set out in writing and signed by the parties
• The role of the mediator during the mediation and following the mediation
• What happens at the conclusion of the mediation

Mediation is a voluntary process by which parties who are in dispute can agree, on a entirely confidential basis, to resolve issues between themselves. The agreed resolution can be made binding and enforced by the courts in circumstances where the other party defaults.

The role of the mediator is to facilitate or guide the parties to an agreement. The mediator is impartial and required to act with integrity as between all parties.

Why choose mediation over litigation?

Mediation and litigation are not mutually exclusive but there are reasons why parties might prefer to mediate over litigation.

Cost 

In the first instance there is the cost factor to be taken into consideration.  High Court litigation can be very expensive and if you come out on the losing side you will generally have to pay not only your own legal fees but also those on the winning side.  In litigation the winner takes all.  In mediation, the parties know up front how much it will cost and how that amount is to be apportioned.

Speed

The courts are clogged up with cases and it would not be unusual to have to wait a year and more before your case comes up in the list for trial. There is no waiting-around time for mediation.  When the parties are ready to mediate, it takes a few weeks to organise.

Confidentiality

A core principle of the judicial system is that cases are heard in public.  A core principle of mediation is that it is a confidential process so the parties control who knows what and how much they know.

Autonomy

In litigation, the court determines the outcome in accordance with the law.  There are certain things it can and can’t do.  In mediation, the parties agree the outcome and so the same restrictions do not apply. Indeed, the parties may decide in a mediation that there is to be no agreement and the mediation is thereby at an end.  It is not so easy for the parties to extricate themselves from court proceedings once they have begun.

Duty on legal advisers

Since January of this year, lawyers are required to sign a statutory declaration in advance of commencing legal proceedings confirming that they have advised their client about the benefits of mediation.