The Gazette 1994

GAZETTE

AUGUST/SEPTEMBER

1994

in detailed risk analysis, and : ultimately makes the decision himself, ' mediated settlements tend to endure,

at a convenient location and time. It may yield creative, tailor-made settlement terms other than, or in addition to, the payment of money which may have been outside the competence of a court or arbitrator to order. Or a settlement for the present, with negotiations to be re-opened on the occurrence of a Contingency, may be agreed. relationships: often the parties must have further dealings together after the dispute is resolved. Examples include family law, partnership, family business or succession disputes, commercial leases, construction projects and disputes with business suppliers. traditional negotiations may not allow the time necessary to accommodate all parties on all issues in complex disputes. A mediator will bring all parties involved to the table, will co- ordinate the discussions so that the issues can be approached, clarified or simplified in an orderly way. (g) "Outbreaks of common sense": it is much more difficult to sustain an unreasonable position during a detailed face-to-face analysis of the case at mediation than it is in correspondence. between parties, solicitors, or solicitor and client: the mediator helps each side to put their case directly to their opponent and helps to keep the discussions at a civil and reasonable level. (h) Improved communication The mediator is trained to facilitate a resolution between the parties not to adjudicate. He or she has a fresh perspective and an impartial view of the dispute with which to help the parties to analyse their respective positions. The mediator's role may include:- (e) Preservation of valuable (f) Multiple parties or issues: The Mediator's Role

frustrations, the trying out ideas in private meetings or the "floating" of ; settlement offers; • pointing out the strengths and weaknesses of each position as j devil's advocate, focusing on reality and helping to change expectations; • discovering and addressing assumptions, needs, interests and i

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and there is less scope for post- ; settlement dissatisfaction and

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negligence claims.

When to Mediate?

j Mediation can be effective at both j ! pre-litigation and litigation stages. At j the outset of a dispute, face-to-face ! negotiations between the parties may í fail because the parties are entrenched j in their respective positions and will not listen to each other. The early j introduction of a trained mediator can help to diffuse antagonism, and to create an atmosphere in which settlement is more likely to occur. j Mediation can also be used after ! litigation has commenced, at any time up to the trial date, or even after a Notice of Appeal against the trial verdict has been served. The litigant may need to go through the processes I of issuing proceedings or trial before resistance to settlement is softened.

priorities that have not been articulated or recognised;

• exploring novel options such as non-monetary relief or structured settlements.

I "Hoary Old Chestnuts"

j How many solicitors have cases in their filing cabinets which they would I rather see resolved than face the time input, the cost to their clients or their practice, or the risk of losing or of not being paid adequately (or at all!) of a ! court hearing? The prospect of handling an awkward case or a "good" client with unreasonable expectations repeatedly during the years of j litigation ahead can be a petrifying one! Mediation can provide an opportunity to deal with such cases and to place the responsibility for a dispute firmly where it belongs - on the shoulders of the client. J A solicitor, in consultation with the client, should ask his/her opposing j colleague(s) if they and their client would be prepared to try mediation for a particular case. The solicitor for each party should then contact a reputable company or individual providing mediation services, for information on their mediation procedures and codes of practice, to discuss with their client. Once all parties agree to mediation the mediation company will make the detailed arrangements for the j mediation, including the selection of a j venue and of a trained, suitably j skilled, agreed person to act as ! i mediator. | ' ! How Can I Refer a Case to Mediation? 1

Advantages of Mediation

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(a) Speed: once all the parties have agreed to try mediation, the mediation itself may be set up within days or weeks. Mediation may be considered as soon as all the information necessary to

formulate a settlement position is i available.

(b) Cost: mediation may help the parties to settle their case before

legal, managerial or "opportunity" | costs become excessive or j disproportionate to the amount in dispute, and without the expenses of witnesses attending for lengthy, costly questioning and cross- examination. process, details and outcome of the dispute remain private, sealed off from the attention of the parties' customers or competitors, and from local spectators and the media.

(c) Privacy: unlike litigation, the

i Mediation - Already in Place in Ireland

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Mediation has already earned a respected place for itself in the areas

• providing a safe, structured environment for the venting of

(d) Flexibility and responsiveness: a

mediation can be held quickly and !

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