Ronan Daly Jermyn

Mediation is an alternative dispute resolution process which parties may use as a way of resolving a dispute. A Mediator, who is an independent party, will assist the parties to the dispute, in negotiating and resolving a mediation settlement agreement. However, it is the parties to the dispute who decide if and when the settlement agreement is reached and when it becomes legally enforceable. Once a settlement agreement becomes legally enforceable, it is the equivalent of a contract between the parties. A court may enforce its terms with limited exceptions.

As this process is voluntary, either party may withdraw at any time.

The Mediator is an independent third party appointed by the parties to assist in resolving a dispute. The parties to the dispute must all agree on the appointment of a particular person as the Mediator. Usually, all the parties will provide a list of Mediators and seek to agree on one of the names suggested. Otherwise, the parties can ask a mediation service provider to provide a Mediator.

The Mediator’s role is to gather information, help the parties evaluate the strengths and the weaknesses of each other’s case and encourage the parties to work together to try and reach an agreement. The Mediator will always act impartially. The Mediator will not decide who is right or wrong or impose a solution on the parties. 

While mediation is not appropriate as a means of resolving every dispute, there are several advantages in engaging in the mediation process.

• The costs associated with mediation are usually considerably less than those involved in litigation that proceeds to Court.
• Mediation offers a swifter alternative to litigation with the possibility that a resolution will be reached in a much shorter time frame.
• As the mediation process is confidential, the parties to the dispute can negotiate freely without fear of publicity. Information regarding the mediation will only be published if the parties to the dispute wish to do so (save the Court may be entitled to details in certain circumstances).
• Mediation is based on the parties taking complete control of the dispute. You not only take control of the way you resolve the dispute but you will also determine the outcome (rather than it being determined by a Judge). This can allow for more nuanced outcomes than those typically imposed by the Courts.

The main disadvantages of mediation arise in the event that it is not successful and it is necessary to revert to litigation as a means of resolving your dispute. You will inevitably face increased costs as you will incur the costs of mediation and litigation. Furthermore, you will face a greater time delay in finding a resolution to your dispute.

S.10 of the Mediation Act deals in detail with confidentiality and disclosure of mediations.  In overview, the mediation process is strictly confidential. Prior to the commencement of the process, each party to the process, and any person assisting in the process, will be required to sign a Confidentiality Agreement. Information and documentation shared with the Mediator cannot be passed to the other party during the mediation without express permission.

The mediation process is ‘without prejudice’ meaning all information, including notes and documents, used during mediation shall not be disclosed in any proceedings before a court with some rare exceptions. Equally, evidence introduced into or used in mediation that is otherwise admissible in court proceedings shall not become inadmissible in such proceedings solely because it was introduced into or used in mediation.

The outcome of the mediation is only publicised if all parties agree and the Mediator cannot appear as a witness for either party in subsequent court proceedings.