Traditionally legal disputes in this country have been fought out in the Courts – for the most part in public and at great cost to the participants.
Whilst this form of litigation is not disappearing any time soon, its supremacy is being challenged by a range of alternatives – chief amongst them, arbitration, mediation, and conciliation.
This article will focus on Mediation, which, it is fair to say, has emerged as the most popular alternative form of dispute resolution to Court litigation.
For many years Mediation was perceived by established litigators as being too “soft” a means of sorting out disputes. Intoxicated by the “macho” environment of the Courtroom, Courtroom lawyers looked aghast at their colleagues trying to resolve their disputes in a less adversarial manner.
Despite this initial pushback, Mediation has grown in popularity and is establishing itself as a credible option for those seeking to resolve their legal disputes.
So, what is Mediation?
Mediation is a means of resolving legal disputes which puts its participants at the heart of the process.
The Mediation Act 2017 came into force on the 1 January 2018 and as and from that date, certain changes were made to the world of litigation with a view to encouraging legal practitioners to embrace Mediation.
Lawyers are now obliged to advise their clients to consider mediation as a means of trying to resolve their disputes. This has been a “game changer” and has helped to bring Mediation centre stage in every dispute.
What are the benefits of Mediation?
One of the primary benefits of Mediation is that it enables disputes to be resolved far more speedily than going to court.
In Medical Negligence litigation, securing a trial date once the case is ready to be set down for trial is a very long and drawn out process. There are limited dates available and there is a limited court Calendar e.g. Courts do not sit for the months August and September. Despite laudable efforts by the Courts Service to combat the effects of the Corona Virus, further delays are inevitable.
Mediation is arranged completely separately to the Court and therefore once the parties agree that the matter is suitable for Mediation, a date can be arranged very quickly. The fact that all parties to the dispute are agreeing to a date takes away any delay tactics and parties are truly motivated to find a solution and an outcome that everyone can live with.
Mediation is a voluntary process which is a key differentiator from Court litigation. This has the effect of making its participants much more committed to finding a resolution that both parties can live with.
It gives a them a greater degree of control over the outcome, certainly more control than handing over the process and the outcome to a third party.
Mediation is a far less adversarial process than going into open court.
Naturally, people can be very intimidated at the prospect of going into a court room populated by legal practitioners in formal robes and court attire. The events that give rise to Medical/Clinical Negligence cases can involve extremely traumatic events. They can involve the most intimate aspects of one’s life or may involve reliving the loss of a loved one. The prospect of being cross examined on these events is understandably most distressing.
In a Mediation people have the opportunity of speaking privately to the appointed Mediator. The Mediator has the time to listen to the entire story and understand how the events have affected the individuals involved. In the Court process people often feel barraged and intimidated. They rarely get to relay their story at their own pace as the Court setting simply is not set up for that.
Judges do their best to be sympathetic and make people feel at ease but in the end of the day Litigation can be very cut-throat with one winner and one loser – it is the ultimate “zero-sum” game.
Mediation is more nuanced. The Mediator has the capacity to listen to everything the person or parties have to say, they will get a better understanding of the hurt and the impact that the event that gave rise to the Litigation has had on the individual and their family and loved ones.
Mediation is confidential, everyone attending a mediation must sign a binding Mediation Agreement, ensuring that no one uses the Mediation process for the purposes of fact finding to be used as ammunition later. Nothing disclosed at a Mediation can ever be used in Court.
In addition, the public are excluded from Mediations and therefore there is no intrusion into the privacy of either party. Courts are open to the public with limited exceptions. Not surprisingly, people often dread the idea of private and personal information being aired in public.
If the Mediation is not successful, the matter can still proceed to hearing. There are no risks to holding a Mediation and nothing will have been lost.
Even if the Mediation does not resolve the dispute., issues will have been narrowed down which will result in saving on legal costs and Court time. when the case comes on for hearing.
A long drawn out court case can result in significant legal costs which acts as a deterrent to people who have good cases but are scared off by the potential financial consequences of a long drawn out Court battle.
Who attends a Mediation?
Both sides to a mediation attend and will have their legal team present. The Mediator will not attempt to give legal advice and will never look to pressurise or influence either party but will gently mediate between both sides and assist them in navigating a way forward towards an agreement.
Where does Mediation take place?
Mediations take place in more informal settings, a Mediation can be held in a hotel, at a centre with multiple rooms. This can be more appealing to people who might find attending a formal court room very intimidating.
As Mediation is far less formal than a court, people can dress casually and that often helps people feel more comfortable.
Frequently each party will have their own room at the location. They do not have to meet the other party/parties. The Mediator will move between the rooms and will listen to each party. Importantly, The Mediator can only pass on information to a party with the other party’s blessing.
What is the role of the Mediator?
The Mediator is an independent impartial person. In practice both sides will put forward several names and the Mediator will be agreed and the person who is retained will have the confidence of both sides. Frequently the Mediator will come from a legal background and will have experience in the area of law that is being mediated.
Whilst a formal qualification in Mediation is not mandatory, we would always insist on the Mediator being an accredited Mediator and having undergone the relevant Mediation training and obtained a recognised qualification in Mediation.
Once the Mediator has been agreed, each party will brief the Mediator on the dispute. The Mediator will be fully briefed on the issues in advance of the Mediation and will have been afforded the time to consider papers, some papers such as Proceedings setting out the claim and the Defence will be agreed by both parties. However other documentation can be sent for the eyes of the Mediator only. At the Mediation, the Mediator will have had an opportunity to review the papers and will be familiar with the facts of the matter.
The Mediator does not decide on the dispute. Any resolution is made jointly by the parties themselves taking it away for the winner takes all approach synonymous with the Court cases.
What type of cases are suitable for Mediation?
Mediation is an ideal method of resolving disputes where emotions can be extremely high, for example, clinical negligence cases, family law proceedings and commercial disputes.
In clinical negligence cases quite often, people are looking for answers as to what went wrong. Apologies can be given and in some instances doctors/ nurses/clinicians can speak directly to the family or arrangements made for an off-site meeting to discuss what went wrong and what practices improvements are being made to prevent similar mistakes/omissions being made in the future.
Whilst I specialise in the area of Medical Negligence, it has been well established that family law proceedings are well suited to Mediation.
In such cases Mediation is a facilitative process that allows the couple to come to an agreement to separate, themselves. Therefore, it affords the couple going through a separation, a degree of self-determination with regards to how they will resolve the breakdown of the marriage. All aspects of the separation i.e. financial to parenting can be dealt with in mediation. Every single family law case is unique and offers its own particular set of circumstances, clearly it is far better for the couple to play the pivotal role in how the assets of the marriage are divided and how the children are cared for than a Judge.
In commercial disputes, where commercially sensitive information may be central to the mediation, the confidentiality element can make mediation a much more attractive option than taking a case in open court. It also avoids the airing of grievances in public in a way that would be detrimental to the business whilst allowing a safe place for issues to be ventilated. Crucial business relationships can be saved and often the business can go from strength to strength in circumstances where litigation could have led to the loss of the entire relationship and in the worse cases, the entire business. Mediation is a collaborative process; each party will be motivated to come to a solution that both sides can live with.
What is the mediation process?
Once it has been agreed that the case is suitable for mediation and both Parties have agreed to at least try Mediation, the Mediator is appointed. A number of Mediators will have been proposed by each side and one will be retained by mutual consent.
Both parties will prepare a position paper, and this sets out the dispute. It does not need to be an agreed paper and both sides can furnish their own position paper.
The Mediator will liaise with the parties to ascertain any addition information which he/she requires. Each side can furnish as much or as little information as they wish; they can decide if they want the documentation kept confidentially by the Mediator or shared with the other side.
A date for the Mediation will be agreed quite quickly and the Mediator may decide to host a number of pre-Mediation conference calls to ensure that he/she is adequately informed and prepared in advance of the scheduled Mediation.
For the most part Mediations can be concluded in a day however there is no time pressure with Mediations. From my experience Mediators will go out of their way to facilitate the successful conclusion of a Mediation. Often they will go on into the early hours of the morning and even if not concluded in that day the Mediator will facilitate ongoing engagement over a period of days or weeks which allow people to reflect on what they want or what can be achieved.
I have attended several Mediations which did not resolve on the first attempt but the significant groundwork was laid and with the continued involvement of the Mediator over a period of weeks, the remaining issues in dispute were resolved and a final agreement reached. This added period gives the parties the time they need to come to terms with resolving the matter, which should not be underestimated. Getting into the solution focused mindset can be a difficult transition.
Why Mediation works?
Litigation can be a very blunt tool and once a judgement is given it can come as a terrible shock to the parties involved who may feel the decision was wrong or unfair. Mediation allows its participants to be centrally involved in both the process and the outcome.
Mediation has really come into its own during the Covid crisis as the number of cases coming for hearing in Court has diminished significantly.
Mediations are very amenable to technology whether it be Zoom or Microsoft Teams.
Happily, more practitioners are embracing Mediation.
Whilst the Courtroom will continue to play a key role in resolving legal disputes, it is fair to say there are now viable attractive alternatives which work. Mediation is here to stay, and we are better off as a result.
For more information, contact Niamh Ni Mhurchu, Joint Managing Partner & Joint Head of Medical Negligence, Callan Tansey, on 071 916 2032.