by Breda O'Malley October-19-2015 in Litigation & Dispute Resolution, Employment Law
Mediation is an efficient, practical and cost-effective method of dispute resolution. It can provide a quicker, cheaper and more effective way of arriving at a suitable outcome than litigation. Breda O’Malley explains.
Voluntary and confidential process
The mediation process takes place on a strictly voluntary and confidential basis. Mediation provides an environment conducive to early dispute resolution. The approach is less adversarial and confrontational, by its nature, than the process of dispute resolution in the courts system.
Mediator – neutral third party
Mediation involves a mediator who acts as a totally neutral third party. The mediator facilitates open discussion between the parties, in a skillfully managed process, with a view to the parties themselves reaching an agreed settlement of their own dispute.
What’s the aim?
Unlike with the courts system, the aim of mediation is not to establish fault, to determine who caused any wrongs that have arisen, or to identify or to seek to protect legal rights. Mediation has a different aim. It works to overcome the dispute and to enable life - whether work, commerce, family or community life - to continue after a dispute arises. It focuses on resolving the dispute and putting practical steps in place to enable the parties to move on and cater for their future, whether individually or in co-operative arrangements.
Mediation allows for resolution in which the parties themselves create, frame and control the outcome. Mediation provides an opportunity for parties to meaningfully participate in the process. They can work together to arrive at a solution which is tailored to their own respective needs. This is often practically more beneficial than having a binding rights-based solution imposed by the courts. Agreed settlement terms arrived at during the course of mediation can be recorded and signed by the parties in a legally enforceable contract.
Agreements resulting from mediation are arrived at voluntarily. Therefore, it is also more likely that they will be complied with voluntarily, unlike court judgments which may need further legal and judicial enforcement measures.
At the very least, if no agreement is reached, the process should facilitate the streamlining of the issues at hand, which will in turn be of assistance in subsequent litigation.
Mediation and the law
In light of recent legislative changes, it is advisable for employers to familiarise themselves with the mediation process which will undoubtedly play a much more significant role in the resolution of employment disputes. As of 1 October, mediation was formerly introduced to the Irish employment litigation system through the Workplace Relations Act 2015. The Act introduces a legally binding mediation facility which encourages the early resolution of disputes without the need for formal adjudication, where possible. There is also the Mediation Bill 2012 which, when enacted, will require solicitors to provide clients with information and advice regarding mediation before taking the decision to commence court proceedings.
Quick and cheap
Litigation can be extremely drawn out and stressful for those involved. It is also very costly. Mediation costs, on the other hand, are significantly lower. Furthermore, the time involved in mediation is considerably less than the amount of time involved in attending court. While it often takes a few days or weeks to reach an agreement through mediation, the average time involved in a case that proceeds to the High Court is two years. This delay inevitably leads to absorption of limited business resources which are used to manage and progress litigation. It also impacts on staff morale in an organisation, where a dispute is left to fester, without early intervention and the support of healing measures.
An accredited experienced mediator
An accredited and experienced mediator should be engaged to facilitate the mediation process. Interested parties should consider referring to the Irish Commercial Mediation Association (ICMA) www.icma.ie, the Mediation Institute of Ireland (MII) www.themii.ie or One Resolve www.oneresolve.ie.
Summary
In summary, mediation provides a highly efficient and cost-effective platform for the resolution of interpersonal employment disputes. It can yield significant benefits for the parties. If mediation is availed of at an early stage, before matters become fraught, the parties can work together to resolve their dispute and to prevent irreparable damage to working relationships which, alternatively, are often rendered fractured, or in many cases irrevocably sundered, in the wake of litigation.
Hayes partner Breda O’Malley is an accredited mediator (CEDR) and a Council Member of the Irish Commercial Mediation Association (ICMA). bomalley@hayes-solicitors.ie
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About the Author
Breda O'Malley
Breda practises in both Employment and Commercial Law and is Partner and Head of the Employment Law team at Hayes solicitors. Breda has trained and qualified as a mediator with the UK based, internationally renowned Centre for Effective Dispute Resolution (CEDR). Breda practices as a mediator of commercial, employment, boardroom, charity trustee and shareholder disputes.