Mediation is a voluntary and confidential process in which the parties to a dispute seek to achieve an agreed resolution with the assistance of a trained mediator. A mediator will facilitate negotiations between the parties and their advisors and acts as a neutral third party, bringing his or her skill and expertise to the process in the hope of achieving a resolution. 

Mediation can occur in any type of dispute and can occur before, during or after legal proceedings. It is most effective before legal proceedings, and can facilitate the resolution of a dispute without the need for legal proceedings. 

 

The parties must first agree that mediation is appropriate, and agree to enter into the process. All parties must then agree on the identity of a mediator. As the parties will rarely agree on the identity of the mediator, commercial agreements will often contain a framework for the appointment of a mediator by an independent officer of the RIAI, Law Society or the Institute of Chartered Accountants. 

 

Once a mediator is identified, the mediator will circulate his or her terms and conditions, fee details, and an outline of the procedure to all parties. The parties will sign an agreement to be bound by the rules of the mediation. 

 

The mediator will ask for a written summary of the issues, which should include any relevant documentation. 

 

Often, the mediator will first meet both parties separately. Then, a formal mediation of all parties is arranged, and all parties will attend with their professional advisors. All of the sessions are facilitated by the mediator who attempts to broker a compromise between the parties. If a compromise cannot be reached, then the mediation ends and the parties proceed with the appropriate legal process. If mediation is successful, the professional advisors to the parties will draw up a binding settlement agreement.

 

The Mediator does not make decisions about outcome or issue a judgment. Instead, he or she will listen to both sides of the dispute, encourage compromise and manage the process to a resolution.   

 

It is important to be aware that all discussions and negotiations in mediation are “without prejudice”, meaning that all discussions and any documents presented in the course of mediation will be privileged and cannot be used in any subsequent legal proceedings.

 

The costs of the mediator are usually paid by parties to the dispute equally in advance. 

 

The main advantage of mediation is that it can facilitate a speedy resolution of a dispute, in even a matter of weeks. The alternative for the parties is lengthy legal proceedings.