What is Mediation?
Mediation is a process parties enter into voluntarily to try and find a solution to a dispute without resorting to litigation in the Courts. Mediation is also used in an effort to end legal proceedings. The process of mediation is relatively simple and can represent significant savings of time and money over traditional Court procedures.
You are perfectly entitled to bring your solicitor and barrister to a mediation meeting and in fact, for more complex disputes, it is recommended that lawyers from each side be present. This is so that a binding settlement can be drafted and signed at the end of the process with independent legal advice.
Mediation is a binding process in that parties who reach a settlement draft and sign settlement terms (possibly with the assistance of their lawyers), which terms are binding as a contract.
- It is voluntary and it can only take place on the basis that all sides are agreeable to participate. Anyone can withdraw at any stage if they want to.
- It is confidential and the process is private and confidential to the parties unless otherwise agreed. This will give parties confidence to express exactly how they feel and confidence to explore solutions without prejudice.
- It is fast and takes place as soon as schedules etc permit.
- It is impartial as the mediator is impartial and does not take sides
- It is solution focused as the object of the exercise is to reach a workable and mutually agreeable solution to the conflict or dispute.
What happens if someone breaches the agreement?
This is seen as being a breach of the contract. The contract itself normally contains clauses that explain what happens in the event of a breach.The contract usually specifies whether it goes back to a Mediator or if it goes to the Courts. If it goes to the Courts the offending party could have damages awarded against him or be ordered to comply with the terms of the agreement already entered into and, ultimately, if he does not comply he could be held in contempt of Court and face imprisonment and/or fines / sequestration of assets.
Another alternative is that the problem might be referred to an arbitrator for final resolution under the Arbitration Acts 1954 - 1980 or they might simply give powers of arbitration to the mediator.