Mediation: The Smart Solution for Risk Mitigation, Confidentiality, and Swift Conclusion of Disputes

In this article, we briefly outline the current landscape of mediation in Ireland and how it is increasingly a go-to tool for resolving complex disputes.

What is Mediation?

Mediation is a voluntary and confidential process whereby an independent third party facilitates engagement between parties with a view to the resolution of a dispute. It is entirely external to any court process and is grounded by way of a private agreement entered into by willing parties. The mediator exercises no judgment on the merits of a case nor does he or she make recommendations on specific outcomes. Mediators only share information or positions of the parties on an expressly consensual basis.

It is typically a one-day process at a neutral location and involves a measure of shuttle diplomacy whereby the mediator goes back and forth between the participants (who are in separate rooms) endeavouring to draw the parties to the zone of settlement whereby the bones of a resolution begin to take shape. If successful, the terms of the resolution are generally documented there and then in the form of a full and final settlement agreement.

The process is conducted on a without prejudice basis, meaning that communications and documents exchanged under the process cannot be referenced or disclosed at any subsequent court hearing.

Mediation is governed – and promoted – by the Mediation Act 2017 (the “Act”).  It provides for a range of obligations on solicitors in particular to advise on the benefits of mediation. Section 14 of the Act obliges solicitors to advise clients not only to consider mediation as a means of resolving disputes but it requires a solicitor to swear a statutory declaration confirming that the obligation to inform the client about mediation has been properly discharged. By way of Practice Direction HC127 (effective 24 June 2024) solicitors are now required to confirm compliance with section 14(1) when completing a Trial Summary Form and to specify the date the advices were provided.

What Disputes Does Mediation Suit?

While Mediation is suitable for almost any form of dispute, it is particularly useful in complex multi-party disputes. It is often the case that the total collective legal spend for a trial of such matters can dwarf the sums at issue. The costs savings are often significant.

Mediation is also particularly well suited to disputes where both parties have a concern around matters being aired in open court. For example, matters involving commercial, personal, or employment sensitivities are regularly referred to mediation so as to avoid publicity and the experience of giving oral evidence in court.

How Quickly Can It Be Done?

Subject to the parties’ availability and that of the mediator, there is no reason why a mediation cannot be convened within a week or so of the agreed decision to mediate. Briefing papers to the mediator tend to be limited and a short summary document can be prepared by each party in ease of the mediator. We have been involved in any number of matters which begin, escalate sharply, and are then mediated to conclusion within three weeks.

What Are the Current Trends for Mediation?

Increasingly the Irish Courts will insist on mediation being first attempted before a trial date is given. This can be the case even when the parties are not clearly intent on resolving matters amicably and perceive a need for a trial date to be set to focus minds.

Unreasonable refusals to mediate will likely attract the ire of the Court. Recent court decisions have also sent out a clear message that failure to mediate can have negative consequences in the form of adverse costs orders. This enforcement of Section 21 of the Act is not surprising and has led to the concept of a solicitor being potentially negligent if mediation is not properly advised upon for particularly appropriate cases. In the Byrne, Hyslop & Kerrigan v. Arnold decision of the Irish High Court, a costs penalty was made against the successful plaintiff arising from a failure of the solicitor to comply with obligations under the Act. A 5% reduction in plaintiff’s costs was imposed. This decision is in keeping with recent English caselaw.

The Workplace Relations Commission offers a free mediation service for employment disputes and this is often taken up particularly when there is a real prospect of the employer/employee relationship being salvageable. The renamed Injuries Resolution Board (previously known as the Personal Injuries Assessment Board (PIAB)) has recently commenced providing a mediation service to resolve personal injury disputes which could be particularly helpful in employment liability claims where employer and employee wish to maintain good relations.

At Clark Hill, we have also noted a growing trend of plaintiffs making the initial move toward mediation. Whereas 10 years ago this may have been perceived as a sign of weakness, increasingly it is correctly attributed to a tactical or strategic approach with the aim of curtailing long-running litigation and delivering certainty for the parties, particularly in commercial disputes.

Conclusion

Any forward-thinking party to a dispute would want to have good reason not to carefully consider the prospect of mediation as a valuable tool for resolution. Our partners, Sam Saarsteiner (a qualified CEDR mediator) and Donal O’Loinsigh of Clark Hill’s Dublin office are well placed to advise on disputes which enter mediation, and to act as independent mediator if called upon. Should you wish to discuss mediation further, please get in touch for a confidential discussion.

This publication is intended for general informational purposes only and does not constitute legal advice or a solicitation to provide legal services. The information in this publication is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel. The views and opinions expressed herein represent those of the individual author only and are not necessarily the views of Clark Hill PLC. Although we attempt to ensure that postings on our website are complete, accurate, and up to date, we assume no responsibility for their completeness, accuracy, or timeliness.