The Minister for Justice, Equality and Defence Mr. Alan Shatter, T.D. announced today that he had secured Government approval for the general scheme of a Mediation Bill which was published Thursday 1 March, 2012. The Minister is asking the Joint Oireachtas Committee for Justice, Defence and Equality to revert to him no later than the 1 June next with any views the committee may have.

The Minister said “The general objective of the Bill is to promote mediation as a viable, effective and efficient alternative to court proceedings thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress involved in court proceedings. I am anxious to ensure that individuals and companies engaged in a dispute regard resolution of their dispute through mediation as preferable to court litigation. The Bill seeks to integrate mediation into the civil justice system as a mainstream alternative to court proceedings.”

Press Release from the Department of Justice & Equality

CPD Mediation Training Course

This is a major development in the civil justice system and you now have a great opportunity to attend this CPD course (6 CPD hrs – €215) and get an understanding of how Mediation and specifically the Mediation Bill will affect you in every day practice.

This course covers the practical aspects of Mediation for Solicitors / Barristers and is designed to deal with the following;

• Current Mediation Legislation including existing SI’s.
• The proposed Mediation Bill 2012
• The practical aspects for Lawyers when considering Mediation as a means of resolving client issues.
• How to go about suggesting Mediation to clients and professionals representing the other parties.
• How to approach a Mediation session when directed by the court, and avoid the possibility of cost sanctions.
• How to prepare for it and how to effectively represent your client throughout the process.
• How to act in your client’s best interests while also signing up to a process designed to resolve/settle the issues.
• Provide an opportunity to be part of 2 role-play mediations.

The module runs is 2 parts, with the first part dealing with current and proposed legislation. The second part focuses on the mediation process and how mediation will impact on your practice. The program we have devised runs over 5:30 hours starting at 12:30pm and running till 6:00pm with a ½ hr break. Due to the interactive nature of the Training Course and the role-play involving 2 mediations we have to limit the numbers and accordingly we have to operate on a “first come first served” basis.

There is a lot of interest in this course, so to avoid disappointment, and find out how the Mediation Bill 2012 will effect you please BOOK NOW

If you wish to discuss the course further you can call me on 052-6123711

More detail on this course is available by visiting the link below:

FOR FURTHER COURSE DETAILS

This is what some of our participants have been saying about the course:

“Efficent course and good value for insight into the mediation process”
- Owen Hickey SC – Barrister-at-Law Senior Counsel

“Recommend this short concise course to anyone advising clients going into mediation”
- Sinead Farrelly – Early & Baldwin

“Well worth attending and useful in everyday practice”
- Kate Craig – Partner, PJ Byrne & Co

“Very effective at imparting mediation skills, discovering what mediation means as a process and learned a lot about the process”
- Sarah Scally – (Solicitor) Sarah R Scally & Co.

“A very Interesting introduction to Mediation, Mindsets & the lawyer’s role within the process” - Kellie Butler BL – Barrister-at-Law

“I really enjoyed this course & gained a lot from it that will be very beneficial in practice as a barrister”
- Catherine McLoone BL – Barrister-at-Law

“I very much enjoyed today’s course which was extremely helpful and the tips I picked up will be of great use in my practice”
- Gerard Yelverton – Yelverton & Co

“Well worth the time and Effort”
- Gerard O’Herlihy – Partner, Nolan Farrell & Goff

“This is a very practical course and essential given the impending changes in this area”
- Jennifer Maher – Solicitor

91% of participants gave the Training Course 8 out of 10 or higher as their general impression & satisfaction having completed the course. 41% gave it 10 out of 10, and results were similar when asked how much impact this training has had on their approach to Mediation.

COURSE DETAILS:

Cost: 215 Euros
CPD: 6hrs – This covers both General and Management/Personal Development CPD Hours

Date	Location	Venue	Booking Details
Apr 12th 2012 – Thur	Dublin	Maldron Hotel – Smithfield
May 10th 2012 – Thur	Dublin	Maldron Hotel – Smithfield
Jun 13th 2012 – Wed	Dublin	Maldron Hotel – Smithfield

We intend to run this program in Cork & Limerick (dates & venue to be decided), so if you wish to attend please email mark@mediateireland.com to express your interest.

More detail on Mediate Ireland is available on the website at www.mediateireland.com

Head

1. Short title and commencement

2. Interpretation

3. Scope and application

4. Duty on solicitor to provide information and advice on mediation

5. Duty of barrister in relation to mediation

6. Mediation conditions

7. Role of mediator

8. Duty on mediator to provide information on training etc.

9. Codes of practice

10. Confidentiality of mediation communications

11. Enforceability of mediation agreements

12. Court support for mediation alternative

13. Submission of mediator’s report to court

14. Effect of mediation on limitation and prescription periods

15. Staying of court proceedings arising from mediation clause

16. Fees and costs

17. Factors to be considered in awarding costs

18. Involvement of child or dependents in family law mediation

19. Liability for civil damages

20. Amendment of Civil Liability and Courts Act 2004

Head 01 – Short title and commencement

Provide that:

Explanatory note

Head 02 – Interpretation

Provide that:

Explanatory note

____________________________________

¹ A number of alternative definitions for “mediation” are available including:

1. EU Mediation Directive ­DIRECTIVE 2008/52/EC

‘Mediation’ means a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator.

2. Folberg and Taylor ­Mediation: A Comprehensive Guide to Resolving Conflict without Litigation

“Mediation means a process by which the participants, together with the assistance of a neutral third person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs.)

Head 03 – Scope and application

Provide that:

Explanatory note

Head 04 – Duty on solicitor to provide information and advice on mediation

Provide that:

Explanatory note

Head 05 – Duty of barrister in relation to mediation

Provide that:

Explanatory note

Head 06 – Mediation conditions

Provide that:

Explanatory note

Head 07 – Role of mediator

Provide that:

Explanatory note

Head 08 – Duty on mediator to provide information on training etc

Provide that:

Explanatory note

Head 09 – Code of practice for mediators

Provide that:

Explanatory note

Head 10 – Mediation communications to be confidential

Provide that:

Explanatory note

Head 11 – Enforceability of mediation agreements

Provide that:

Explanatory note

Head 12 – Court inviting parties to consider mediation

Provide that:

Explanatory note

Head 13 – Mediator report to court

Provide that:

Explanatory note

Head 14 – Effect of mediation on limitation and prescription periods

Provide that:

Explanatory note

Head 15 – Staying court proceedings to facilitate mediation process

Provide that:

Explanatory note

Head 16 – Fees and costs

Provide that:

Explanatory note

Head 17 – Factors to be considered by court in awarding costs²

Provide that:

Explanatory note

________________________________________________
² S.I. No. 502 of 2010 amended Order 99 of the Rules of the Superior Courts to allow the Supreme Court or the High Court, in determining costs, to take into account a person’s refusal or failure without good reason to participate in any ADR process.

Head 18 – Involvement of child in mediation in family law dispute

Provide that:

Explanatory note

Head 19 – Liability for civil damages

Provide that:

Explanatory note

Head 20 – Amendment of Civil Liability and Courts Act 2004

Provide that:

Explanatory note

Press Release from the Department of Justice & Equality

The Minister for Justice, Equality and Defence Mr. Alan Shatter, T.D. announced today that he had secured Government approval for the general scheme of a Mediation Bill which is published today (Thursday 1 March, 2012).

The Minister said “The Mediation Bill will give effect to the undertaking in the Programme of the Government for National Recovery (2011 – 2016) to encourage and facilitate the use of mediation to resolve civil, commercial and family disputes.”

The Minister added “The general objective of the Bill is to promote mediation as a viable, effective and efficient alternative to court proceedings thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress involved in court proceedings. I am anxious to ensure that individuals and companies engaged in a dispute regard resolution of their dispute through mediation as preferable to court litigation.”

The General Scheme builds on the recommendations of the Law Reform Commission in their ‘Report on Alternative Dispute Resolution – Mediation and Conciliation’.

The Minister said that he wanted to highlight the following elements in the proposed Bill:

• the imposition of a statutory requirement on solicitors and barristers to inform their clients about the possibility of using mediation as an alternative means of resolving disputes prior to commencing court proceedings;
• a requirement that all communications between parties as they try to resolve a dispute using mediation shall be confidential;
• it will remain for the parties themselves to decide whether to engage in mediation and, indeed, to decide on the terms of any agreement arising from the mediation;
• the provision of a statutory basis for the courts to invite parties to consider the mediation option and to adjourn court proceedings for the duration of the process.

The Minister said that he intended forwarding the draft Bill to the Joint Oireachtas Committee for Justice, Defence and Equality for their consideration. Any views which the Committee submitted would be taken into consideration prior to finalisation of the Bill for publication.

The Minister is asking the Committee to revert to him no later than the 1 June next.

The Minister said that he wanted to make it clear that “this Bill is not intended to replace existing systems for resolving disputes outside of the courts system such as those operated by the Employment Appeals Tribunal and Labour Court in the employment field and the Residential Tenancies Board in relation to landlord and tenant disputes. Instead, the Bill seeks to integrate mediation into the civil justice system as a mainstream alternative to court proceedings. “

you can view the Mediation Bill by [CLICKING HERE]

View Original Article.

Effect of mediation on limitation and prescription periods

Provide that:

Explanatory note

Factors to be considered by court in awarding costs²

Provide that:

Explanatory note

________________________________________________
² S.I. No. 502 of 2010 amended Order 99 of the Rules of the Superior Courts to allow the Supreme Court or the High Court, in determining costs, to take into account a person’s refusal or failure without good reason to participate in any ADR process.

Mediator report to court

Provide that:

Explanatory note

Enforceability of mediation agreements

Provide that:

Explanatory note

Fees and costs

Provide that:

Explanatory note

Liability for civil damages

Provide that:

Explanatory note

Amendment of Civil Liability and Courts Act 2004

Provide that:

Explanatory note

Staying court proceedings to facilitate mediation process

Provide that:

Explanatory note

Court inviting parties to consider mediation

Provide that:

Explanatory note

Mediation communications to be confidential

Provide that:

Explanatory note

Involvement of child in mediation in family law dispute

Provide that:

Explanatory note

Code of practice for mediators

Provide that:

Explanatory note

Duty on mediator to provide information on training etc

Provide that:

Explanatory note

Role of mediator

Provide that:

Explanatory note

Mediation conditions

Provide that:

Explanatory note

Duty of barrister in relation to mediation

Provide that:

Explanatory note

Scope and application

Provide that:

Explanatory note

Interpretation

Provide that:

Explanatory note

____________________________________

¹ A number of alternative definitions for “mediation” are available including:

1. EU Mediation Directive ­DIRECTIVE 2008/52/EC

‘Mediation’ means a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator.

2. Folberg and Taylor ­Mediation: A Comprehensive Guide to Resolving Conflict without Litigation

“Mediation means a process by which the participants, together with the assistance of a neutral third person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs.)

Short title and commencement

Provide that:

Explanatory note

Duty on solicitor to provide information and advice on mediation

Provide that:

Explanatory note

Head

1. Short title and commencement

2. Interpretation

3. Scope and application

4. Duty on solicitor to provide information and advice on mediation

5. Duty of barrister in relation to mediation

6. Mediation conditions

7. Role of mediator

8. Duty on mediator to provide information on training etc.

9. Codes of practice

10. Confidentiality of mediation communications

11. Enforceability of mediation agreements

12. Court support for mediation alternative

13. Submission of mediator’s report to court

14. Effect of mediation on limitation and prescription periods

15. Staying of court proceedings arising from mediation clause

16. Fees and costs

17. Factors to be considered in awarding costs

18. Involvement of child or dependents in family law mediation

19. Liability for civil damages

20. Amendment of Civil Liability and Courts Act 2004

Download Draft General Scheme of Mediation Bill 2012 in PDF Format (Printable Format)
[Click Here]

View Draft General Scheme of Mediation Bill 2012 on line in full
[Click Here]

February 23, 2012

MICROSOFT HAS asked EU antitrust regulators to intervene in a patent dispute with Google and Motorola Mobility as it stepped up its battle against the internet search giant.

Microsoft complained that Motorola Mobility was trying to block its products by charging too much for using its patents in Microsoft products.

The complaint came a week after the European Commission and the US justice department approved Google’s $12.5 billion (€9.4 billion) acquisition of Motorola Mobility.

“Earlier today, Microsoft filed a formal competition law complaint with the European Commission against Motorola Mobility and Google,” said Microsoft deputy general counsel Dave Heiner. “We have taken this step because Motorola is attempting to block sales of Windows PCs, our Xbox game console and other products.”

Mr Heiner had initially named Motorola Mobility but said later the complaint included Google.

Mr Heiner said Motorola had filed lawsuits in the US and Europe demanding Microsoft take its products off the market, or remove their standards-based ability to play video and connect wirelessly. “The only basis for these actions is that these products implement industry standards on which Motorola claims patents,” he said. “Motorola is on a path to use standard essential patents to kill video on the web, and Google, as its new owner, does not seem to be willing to change course.”

Google declined to comment.

View Original Article.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

Past Articles

• Call for governement departments to have ‘mediation officers’ for legal cost
• Embracing Mediation will help grow your Legal Practice – Lessons from America
• How Workplace / Employment Mediation works in practice

In short

Mediate Ireland provides training for the legal profession on how to act in Mediations – before, during and after.

Mediate Ireland is very experienced in providing mediation services in a number of key areas including Divorce/Separation, Commercial, Workplace/Employment

Newsletter – February 2012

HR / Workplace Mediation – Planning is the key to a successful mediation

In recent months we at Mediate Ireland have seen a dramatic increase in the number of employment, workplace, management and HR related mediations that we have undertaken. This is probably as a result of the significant delays experienced in progressing a case through a Rights Commissioner and the Labour Relations Commission, which in most cases can be as long as 18 months.

Employment, HR, Workplace Mediations must be carefully set up, with careful consideration given and consultation with all parties involved. It is vitally important that the mediation is sensitively tailored to the situation’s requirements and circumstances, while at all times preserving the impartiality of the mediator and the integrity of the process.
Read More…

Mediation Used by Glaxo to Settle Almost 25,000 Avandia Diabetes-Drug Claims

GlaxoSmithKline Plc settled almost 25,000 cases over its Avandia diabetes drug in mediation. In November, U.S. District Judge Cynthia Rufe appointed a mediator to preside over settlement negotiations.

She also set a 75-day deadline to resolve 85 percent of the remaining cases. In a court hearing today Judge Cynthia Rufe applauded the effort as “a major success.”
Read More…

Irish High Court Judge calls for “Compulsory Mediation”

Remarking on a high court case involving a public right of way, Mr Justice John MacMenamin said there was “a strong case” for reforming the law concerning the existence of public rights of way and suggested reform should include “compulsory mediation” before any litigation.

While mediation was proposed “more than once”, the parties “could not or would not compromise” and the “bitterness” between them was clear, he said. Neither side had shown the degree of toleration one would normally expect and actions by both sides were “totally disproportionate” to the issues at stake.
Read More…

In recent months at Mediate Ireland we have seen a dramatic increase in the number of employment, workplace, management and HR related mediation’s that we have undertaken. This is probably as a result of the significant delays experienced in progressing a case through a Rights Commissioner and the Labour Relations Commission, which in most cases can be as long as 18 months. When asked why they went to mediation, in addition to the lack of any delay, the other main reason given by the parties is the confidentially gained by using a private mediation company.

The Government and the Judiciary are highlighting the benefits of mediation and the integral role it now plays in the Irish Legal System. Mr Justice Michael Peart of the High Court recently made some highly controversial statements in relation to the Irish Legal system and the benefits of mediation to the parties.

Workplace / HR Mediation’s a Unique Approach

Workplace / HR mediation’s require a very different and unique approach from what would be a normal “Commercial Mediation”. The most striking difference is that most mediation’s are carried out while the parties have a continuing employment relationship and may have to work alongside each other on a daily basis. This is why speed of resolution is of prime importance. It has been said that all conflicts at work are the sounds of the system cracking – but also, more positively, that these cracks have the potential to let in the light.

Impartially of the Mediator

One of the biggest differences in Workplace mediation is that the Employer / Company will be paying for the mediation and this can cause perceptions of a lack of Impartially on behalf of the Mediator. It might be perceived by the parties that the Mediator is working for the “benefit of the Company”. This perception can be there whether the dispute is between employees or between the company and the employee. In a lot of cases the company may have a particular solution to the problem that the feel most comfortable with based on the information they have prior to the mediation. During the mediation and because of the absolute confidential nature of the process the mediator may find out very different information leading to a much more satisfactory resolution to the dispute then first envisaged.

The impartiality and independence of the mediator must be protected at all times in the process. This is the key as to why the mediation process is so successful. More that 8 out of 10 mediation’s that Mediate Ireland have undertaken have been successful. It is critical that parties trust the mediator and that they are not seen to be “doing the work of the employer” or “taking the side of a particular employee”.

The importance of a Mediation Case Manager

To protect this impartially it is best that all communications with the Mediator or Mediation Company are handled by a Case Manager. In most cases the Case Manager is an experienced Mediator, however he/she would not be assigned to this particular case. An important benefit of the case manager’s initial meetings with individuals may well be to gauge their level of commitment to the process, and answer any questions the parties have in relation to the Mediation Day. These meetings also address the interplay with grievance and disciplinary procedures and at what stage the dispute is at in the internal company procedures. When employees are required to engage in mediation as an outcome from such procedures, the extent to which mediation remains a truly voluntary process may need to be addressed. Even if participation is a requirement, no-one should say, agree or do anything in mediation other than voluntarily.

Who should attend the Employment Mediation

One of the key factors that arise out of the pre-mediation meetings with the case manager is who should attend the mediation on the day. This is vital as all key decisions makers, with the required authority, must be present if a resolution is to achieved on the day. A mediation is not an endless talking shop, the whole purpose of the mediation is to reach a written agreement which has been agreed voluntarily by all parties involved. If it turns out in the pre-mediation meetings that the dispute involves a greater number of people, then the structure of the mediation may need to be adjusted to facilitate the particular dispute. It is always foremost in the mind of the case manager that by consulting with additional people the dispute is not escalated as a result and this is where an experienced case manager is very vital.

Issues of Confidentially in Employment Mediation

Confidentially of the mediation is where we get most concerns and questions about. Because an employer or company is paying for the mediation a lot of the time we are requested to produce a report for their consideration. This can have major implications during the mediation as everything that is discussed between the mediator and a party is absolutely confidential from all other parties including the employer. The mediator will only divulge information with the agreement of the party to other parties. Generally this is never an issue when the mediation is successful as a written agreement is produced and agreed by all parties. However if a mediation is unsuccessful, a summary of the dispute and issues may be produced as long as all parties agree. The key is to discuss these issues at the outset and to keep them in mind throughout, always seeking the agreement of those involved at each step.

Employment, HR, Workplace Mediation’s must be carefully set up, with careful consideration given and in consultation with all parties involved. It is vitally important that the mediation is sensitively tailored to the situation’s requirements and circumstances, while at all times preserving the impartiality of the mediator and the integrity of the process. As you can now appreciate each employment dispute is unique and needs extensive planning if it is to be successful.

By Sophia Pearson – Feb 14, 2012

GlaxoSmithKline Plc settled almost 25,000 cases over its Avandia diabetes drug in mediation as multidistrict litigation begins to wind down, lawyers told a judge today in Philadelphia.

In November, U.S. District Judge Cynthia Rufe appointed a mediator to preside over settlement negotiations. She also set a 75-day deadline to resolve 85 percent of the remaining cases. It was unclear in a court hearing today whether lawyers had met the threshold as Rufe applauded the effort as “a major success.”

“Mediation will no longer be the focus of this court’s effort,” Rufe said. “We will resolve the remaining cases through litigation.”

The settlements are part of London-based Glaxo’s efforts to resolve legal issues stretching back more than a decade. The drugmaker announced in November that it will pay $3 billion to settle U.S. criminal and civil probes into whether Glaxo illegally marketed Avandia and other medications.

More than 2,500 Avandia cases are consolidated before Rufe in Philadelphia. Other cases are pending in state courts around the U.S. So far, as many as 50,000 cases have been resolved, including claims filed in both state and federal court, Diane Nast, a plaintiffs’ attorney who serves on a group helping to oversee cases, told Rufe today.

“From what I’m hearing today, there aren’t a lot of cases left to be tried, and not all those cases will make it to trial,” Rufe said.

Glaxo said in 2010 that it would stop promoting Avandia worldwide after studies linked the drug to increased risks of heart attacks. The company already agreed to pay at least $700 million to settle more than 15,000 patients’ claims that the drug caused heart attacks and strokes, people familiar with the accords said last year.

View Original Article.

February 10, 2012

MARIE O’HALLORAN

EVERY GOVERNMENT department should have an arbitration officer to limit legal costs because the State has a reputation of “rarely settling cases until reaching the steps of the court”, the Dáil has heard.

The State is “the greatest contractor of legal services” in the Republic, paying “at least half the costs of all prosecutions”, said Fine Gael’s Noel Harrington.

“Far too often when costs are settled and agreed, the scrutiny is less than it should be,” said the Cork South West TD .

He was speaking during the debate on the Legal Services Regulation Bill, which aims to radically reform the operations of the legal profession and to cut legal costs.

Criticising the State’s reputation for delaying the settlement of cases either at the steps of the courthouse or after the hearing had started, Mr Harrington called for the Government to examine greater use of mediation and arbitration facilities. Every Minister should appoint a “delegated person in the department to be a mediation or arbitration officer to examine the possibility of avoiding these legal costs”.

He highlighted one reported case where a family sought €25,000 damages for the death of their son while on active service for the State. The legal costs of “trying the case will be much greater than the amount claimed” and there might be a role for arbitration in this.

He hit out at the huge fees charged by some senior counsel. In some cases, fees of €20,000 for five hours in court were charged.

Mr Harrington accepted there might be a “great deal of work involved”, but the figure was twice what a person received annually in the State pension.

“We need greater scrutiny and competition when it comes to legal costs.”

Earlier Labour backbencher Joanna Tuffy (Dublin Mid West) said there was “too much pomp and ceremony in how barristers operate”.

Ms Tuffy, a solicitor, said “the clothes, dinners and so on make the Bar off-putting to wider participation by people from different socioeconomic backgrounds, including solicitors”.

She criticised Minister for Justice Alan Shatter for failing to consult the Law Society and the Bar Council before publishing the Bill.

She said the Competition Authority had recommended a regulatory model with oversight by the professional bodies, but the Minister’s proposals “will make for a significant change”.

Debate on the legislation continues in the Dáil next week.

View Original Article.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

The Irish Times

February 9, 2012

A CO Wicklow landowner has won a High Court declaration there is no public right of way on his property as was alleged by a local walking association.

Mr Justice John MacMenamin also said there was “a strong case” for reforming the law concerning the existence of public rights of way and suggested reform should include “compulsory mediation” before any litigation.

Joseph Walker had claimed about 500 metres of his property at Annacrivey, Enniskerry, was not subject to a public right of way following a lengthy dispute with members of the Enniskerry Walkers Association (EWA).

Mr Justice MacMenamin, remarking the case “conveyed the impression” of a dispute where “matters got out of hand” and the parties were “misguided”, ruled yesterday the route was not a public right of way.

The judge said his order applied to the defendants – EWA chairman Niall Lenoach and secretary Noel Barry – but not to others as Mr Walker never sought to join others to the case.

He was not prepared to make a declaration binding “on the whole world” and had no jurisdiction to do so, the judge said. The evidence was insufficient to allow him grant an injunction against possible threatened acts and there was no evidence of any proven risk of substantial danger or repeated trespass on the land. He would not grant an order which would apply to the land itself, he said.

The litigation lasted 11 days in the High Court involving costs that could potentially ruin the parties and “had broken up long-standing friendships”, the judge noted.

While mediation was proposed “more than once”, the parties “could not or would not compromise” and the “bitterness” between them was clear, he said. Neither side had shown the degree of toleration one would normally expect and actions by both sides were “totally disproportionate” to the issues at stake.

Mr Walker had brought proceedings against Mr Lenoach, Monastery Grove, Enniskerry and Mr Barry, of Monastery, Enniskerry, both described in court as leading members of the EWA, formed to agitate for and promote the opening up of old roads and rights of way for the benefit of the public.

The action arose after Mr Walker obtained a High Court injunction preventing a walk across his lands arranged by the EWA in September 2008. The association, it was claimed, was part of a wider political movement to open up Ireland and its roads for the people.

The defendants argued there was a public road in the disputed area since 1760 known as the Old Coach Road. They claimed the right of way on land was half way between Enniskerry and Glencree, there was evidence of the road on maps from 1760 onwards and reference to the road was also made in a report prepared by Wicklow County Council.

Mr Walker argued no such road exists and claimed he was subjected to aggressive confrontations after marches were organised to his land. He also claimed his property was damaged by trespassers. While he did not blame the defendants for the damage, he believed their campaign had led to trespassers gaining access to his land, he said.

Mr Walker, a chartered accountant, told the court his father had purchased the lands in 1945 and farmed them until his death as a result of an accident in 1980.

He said he did not remember people using any part of his father’s property. People did not wander onto it that much and it would upset his father if he saw people using it for recreational use. He did allow some shooting on the land, but those using it had to seek permission first, he added.

View Original Article.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

Finland has twice as many cases of workplace bullying as other European countries, a dissertation research paper presented by the University of Lapland claims. More emphasis is being placed on promoting mediation to reduce the level of harassment and bullying at work.

The dissertation was presented by Timo Pehrman, a former corporate training manager and currently Chairman of the The Finnish Forum for Mediation (SSF), a body that promotes the solution of conflicts with the help of an impartial outside party.

Pehrmaan says bullying in Finnish workplaces takes place mainly in female dominated professions in local and national government sectors such health care, social care and teaching.

”Although good rules are in place to prevent bullying at work, the situation has not improved,” says Pehrman.

In his dissertation, Pehrman has sampled the effectiveness of mediation in resolving cases of bullying in the workplace environment. His research has also examined what style of management is needed to implement such mediation.

”Open discussion and bringing the dispute out into the open was a good starter in order for both sides to understand the roots and reasons for the dispute. Conflicts can last for years if they are not nipped in the bud,” Pehrman notes.

Pehrman examined 14 workplaces where mediation was applied to various disputes. Data was collected by means of sound and video recordings, interviews both written and verbal and by observation. Some 153 persons took place in the mediation process in eight different companies with the help of 12 trained mediators.

No similar study has been carried out in Ireland as yet, however the majority of workplace cases that we deal with at Mediate Ireland involves some element of bullying. In Ireland we have extensive legislation, guidelines and work practices to protect employees and employers, in a lot of cases the normal process which can lead to resolution is time consuming, long, costly and highly stressful. Mediation offers a much better solution and we can certainly learn from our European neighbours in this respect.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

Past Articles

• Study says “Mediation saves time and money in medical negligence cases”
• Employment Dispute – is Mediation a good idea or will it be just more legal costs?
• How Workplace / Employment Mediation works in practice

In short

Mediate Ireland provides training for the legal profession on how to act in Mediations – before, during and after.

Mediate Ireland is very experienced in providing mediation services in a number of key areas including Divorce/Separation, Commercial, Workplace/Employment

Newsletter – December 2011

Embracing Mediation will help grow your Legal Practice – Lessons from America

Experience in North America has shown that lawyers who promote Mediation in appropriate cases build greater empathy with their clients, retain them more easily, are seen to be concerned with minimising their client’s expenditure, and thereby are paid promptly and in full.

They also enjoy the added benefit of good publicity among the clients’ acquaintances and friends leading to a potentially larger client base.
Read More…

Mediation helps solve workplace bullying

Finland has twice as many cases of workplace bullying as other European countries, a dissertation research paper presented by the University of Lapland claims. More emphasis is being placed on promoting mediation to reduce the level of harassment and bullying at work.

No similar study has been carried out in Ireland as yet, however the majority of workplace cases that we deal with at Mediate Ireland involves some element of bullying.
Read More…

Final CPD Course of the Year

Introduction to Mediation Advocacy (CPD Training 6Hrs)

The module that we have devised includes active participation, role play and runs over 5 hours starting at 2:30pm and running till 7:30pm. The cost of the course is €215 & 6 CPD points will be awarded. There has been overwhelming demand for this training, selling out very quickly as the course is limited to 12.
Find out more…..

December 2011
Cork – 7th Dec – FULLY BOOKED
Course run for the Southern Law Association

December 2011
Dublin – 15th Dec – BOOK NOW

“Efficent course and good value for insight into the mediation process” - Owen Hickey SC – Barrister-at-Law Senior Counsel

“Recommend this short concise course to anyone advising clients going into mediation” - Sinead Farrelly – Early & Baldwin

“Well worth attending and useful in everyday practice” - Kate Craig – Partner, PJ Byrne & Co

“Very effective at imparting mediation skills, discovering what mediation means as a process and learned a lot about the process” - Sarah Scally – (Solicitor) Sarah R Scally & Co.

“A very Interesting introduction to Mediation, Mindsets & the lawyers role within the process” – Kellie Butler BL – Barrister-at-Law

Experience in North America has shown that lawyers who promote Mediation in appropriate cases build greater empathy with their clients, retain them more easily, are seen to be concerned with minimising their client’s expenditure, and thereby are paid promptly and in full. They also enjoy the added benefit of good publicity among the clients’ acquaintances and friends leading to a potentially larger client base.

So where’s the Problem

Most people view using a solicitor or barrister as a necessary evil, either in business or their personal life. In some cases they will avoid the use of lawyers at any cost, except when required to by law or when the situation has got so bad that it cannot be avoided. In a lot of cases the use of legal services generates no financial return for the client and can have a significant emotional cost. The bottom line is that the majority of people do not see going to court as a rewarding and fulfilling process. This view is not unique to Ireland and is a commonly held view in the UK and America also.

America is a very litigious society, however the use of Mediation is widespread, it is actively encouraged by the judiciary and mandated for certain types of cases. Mediation is one of the legal processes in America that seems to be perceived by clients as positive.  Mediation in Ireland is still viewed with a large degree of scepticism, in light of the perception that Mediation will result in lower legal fees generated by the lawyer because the case settles sooner and with less acrimony. This is not the case if we take the right approach and learn from America how to embrace Mediation fully. It is so beneficial for lawyers that is difficult to understand why we in Ireland do not utilize it more often and not just limit it to Family Law.

Business Opportunities

The opportunity that mediation offers the Legal profession in Ireland, in light of the lessons learned from America, is the focus of this article. Mediation allows the Client a number of positive experiences and if handled correctly these positive experiences accrue to the lawyer’s benefit. These can be as simple as

• Getting paid faster. (better cash flow)
• Getting paid the full amount invoiced. (less bad debts)
• Repeat business from your client. (higher turnover)
• New business from your client’s social circle. (better brand awareness)

The challenge is to manage the transition from the old way of doing business, to the reality of a very different business environment that we all find ourselves in today.

How does Mediation Help

To get an understanding of how Mediation will ultimately benefit your business we first must look at it from the client’s side. First of all Mediation brings a mutually acceptable solution to the problem and an agreement is reached in 80% of cases. So why is a mutually acceptable solution so important to a client? There is only one main answer to why this is so important, and the more experience a party has in attending court proceedings the more importance they will attach to this. Judges can be unpredictable and Juries in defamation cases are notoriously unpredictable!

For this reason experienced clients see going to court for a resolution to be the most unpredictable method to resolve their dispute and inexperienced clients do not appreciate this. Most people are familiar with the saying “when you go to court, everybody loses”. Because of types of evidence, the way it is presented, and the importance attached to it by the court, no one can accurately predict the decision that will be handed down by the court.

Most of the time, the decision is not satisfying to any of the parties and they all leave the courts with a feeling of not having been properly heard and dissatisfied. The problem for each legal team is that much of the dissatisfaction can be transferred to them. This happens particularly when they receive the bill, and have to pay money for an outcome they are unhappy with or is the exact opposite of the outcome they envisaged at the start.

Reducing client dissatisfaction

The mediation process facilitated by a professional independent mediator helps to avoid this client dissatisfaction and also any transference of the dissatisfaction to the legal team. By making the client responsible for the resolution of the agreement, the client is accountable for the result of the mediation. In this case there is no Judge, Jury, Arbitrator, or even a lawyer the client can blame. Mediation is voluntary and client lead so if the proposed solution is not acceptable to the client he should not accept it and either look for alternative solutions or end the mediation and take his chances in court.

Mediation is defined by a process of seeking a mutually acceptable agreement to resolve a dispute. Therefore the clients are jointly responsible for accepting any agreed solution to the dispute. The vast majority of mediated agreements are long lasting and acceptable to the clients, because they have considered multiple solutions, their BATNA (best alternative to a negotiated agreement) and have worked towards the optimum solution to resolve their dispute.

Gain new Business using Mediation

Your client in a mediation can see you in action up close and personal. Mediation is client lead, with the client doing must of the talking. Therefore a client is going to rely heavily on his lawyers during the mediation process to help him tease out the best solution to resolve the dispute. In any mediation there are always a lot of balls in the air and this process is the ultimate opportunity for the lawyer to show their client just how good they are, the extensive experience they have, their ability to juggle multiple options and how they work for the client’s interests.

Mediation is a unique environment which allows an opportunity for the client to participate directly in the process of solving the dispute, state their interests and needs, and then see them taken into account in the final agreement. This is so rare that any client with experience of the court system, while involved in a mediation, knows that they are witnessing the opportunity of a lifetime to resolve their dispute. Usually in court the client feels that they are very limited in what they get to say, if they get to say anything, or may feel that what they did say was taken out of context. With the help of a lawyer experienced in mediation advocacy and the mediation process, a client can get their message across to the mediator and feel that everything is being taken into account. The lawyer has now the opportunity to shine by giving clear, expert, and informative advice to the client, helping the client (in his mind) to look good and make the best decisions.

At this stage the lawyer can secure their position as the best source for the client to have used for the resolution of this legal matter and therefore by deductive reasoning, the best source for the resolution of future matters that the client may be involved in. From the clients point of view there is nothing as convincing as entering a mediation process, with very little understanding of what will happen, and have their lawyer steer, advise and support them to get the best possible agreement. Often clients are truly amazed that they have reached agreement at the mediation, when they thought that the dispute was a lost cause.

Having a detailed understanding of the perspective of the client in a Mediation gives the lawyer the ultimate tool for showing the client why he is the right legal advisor for the client and why he deserves to have all the business for which the client needs professional legal assistance in the future. The experience in America has been that legal practices who have successfully resolved disputes by way of the mediation process, can end up with their clients entire legal portfolio, even if the client has only come to them to resolve a particular dispute.

Your service is seen as good value for money

Having resolved the dispute, the next most important issue a client has is cost. This can also be viewed as the “perceived value for money” for the client. Generally speaking mediation is less expensive than would be the cost of litigating the dispute in some other forum, including Arbitration. Mediation is a very much faster process, generally speaking most mediation’s can be brought to agreement in a single day, sometimes a long day. In complex disputes another day or two may be required, however it is rare that a mediation would last more than three days. It is internationally accepted that the mediation process is 70% quicker than the court process. The time spent in Mediation is real time (in the clients mind) spent working towards agreement, interacting constantly with the parties, exploring options, refining solutions.

This is very different from the clients perspective of attending court, where they feel there is a lot of hanging around waiting for the case to be heard. For clients this is wasted time and therefore bad value. Also a mediation can be done at the convenience of the client and not the convenience of the court. At a mediation clients experience the lawyers constantly working towards agreement, and feel that they are “getting their money’s worth”. These are areas where clients really feel the benefit of the mediation process.

In Ireland the current perception is that lawyers leave clients off to “attend a mediation” and then report back on the proceedings. In some types of mediation in Ireland all advisors, including legal, are specifically excluded from the process. At Mediate Ireland we fundamentally disagree with this approach, we believe that clients are unable to make informed decisions on aspects of the agreement, unless they have the relevant advice to hand. We strongly believe that a lawyer should be present during a mediation to advise the client, as the ultimate goal is a binding enforceable agreement between the two parties.

A strategy of using Mediation, if proposed by a lawyer to a client, is the best opportunity to show a client that you as their lawyer are concerned with the total capital outlay of resolving the dispute. You are seen to have concern for saving the client’s money. Most clients who have been through a successful mediation, proposed by their lawyer, said that they were really able to see the value of their lawyer, and their lawyers advice to choose Mediation as the method of resolution was a highly valuable decision which contained the cost of the process of resolution.

In a mediation process the mediator is paid prior to the start of the mediation day. This is an ideal time for a legal practice to ask their client to bring their account up to date. It is our experience that if this is handled correctly it is a very effective way of improving cash flow at a time when cash is in short supply. It also helps the mediator in the mediation process if all legal fees are paid up to date, as the parties are more likely to agree if the differences are small at the end of the mediation day, rather than restart the process and start paying again. 

Keys to successfully embracing Mediation

The areas discussed above are the keys to successfully growing your legal practice by embracing mediation, and this is coming from experience of legal practices in America. From a client’s point of view a legal practice that is seen as good value,

• Is concerned about saving a client’s money,
• Provides a forum where the client feels his interests and needs are taken into account,
• Is seen to provide clear, expert, and informative advice to the client,
• Helps the client to look good and make the best decisions. 

Such a practice will have a distinct advantage over its competitors in the current market place. So much of business is word of mouth, and yet so much legal work goes on out of sight of our clients. The mediation process gives legal practitioners an unrivalled opportunity to show their talents in clear view of their clients. If done well, Mediation will secure a lawyer’s place in their client’s minds, as the best value and the most concerned legal practitioner they have ever had.

A happy client is a repeat client and they will tell their friends.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

• Confirm Payment Recieved

Mediation in Ireland has been shown to be the best approach to the resolution of disputes such as, Divorce, Separation, Employment Law, Childcare, Commercial Contracts, Wills and Inheritance. Worldwide it has been shown that the use of Mediators is at least 30% less expensive, 70% faster than Litigation and successful in 80% of Mediation’s. The EU Directive on Mediation was enacted into Irish Law in 2010. The government and the judiciary actively promote and encourage mediation in most disputes.

Using a non adversarial approach to conflict helps parties find innovative solutions to their issues, improves communication between parties, it can even lead to improved future relationships where a complete breakup of the relationship would normally have occurred. There will always be a place for litigation in resolving disputes. However, even where court proceedings have been started Mediation can be used very successfully to speed up the resolution of the dispute – to the satisfaction of all concerned, both the parties involved and their respective legal teams. It has been used to shorten disputes by years, enabling much quicker settlement of claims and disputes and allowing people to move on.

Some examples of disputes where mediation works

How most Disputes are currently Resolved

Litigation and the use of Court processes has been the principal, if not the only, method of dispute resolution available in the past.

• It is slow
• Expensive
• Often leads to even further polarisation of the parties during the protracted process
• It consumes your time, your money, and your resources and those of the professionals that you employ
• It can be virtually all-consuming

However in more recent times, ADR (Alternative Dispute Resolution) techniques have gained ever increasing acceptance – particularly Mediation with its emphasis on structured facilitation and conciliation designed to lead to quick and effective resolution.

A new and better way to Resolve Disputes

Mediation is a totally confidential and safe environment in which each party can discuss their concerns and issues in relation to the dispute, while getting an understanding of the concerns and issues of the other party. The format of a mediation may vary depending on the form of the dispute. It is important to realise that resolutions to conflict are not “one size fits all”, and getting to understand the positions and issues of the parties to the dispute is crucial to getting a lasting solution. In some cases the parties have no direct or very little, communication with each other and spend the entire mediation in separate rooms. In other cases the parties spend the much of the mediation process in face to face discussions

Mediation is becoming an integral part of all Civil Proceedings. A major step in this direction was taken with the publication of the draft MEDIATION AND CONCILIATION BILL, 2010 on the 16th November 2010. This greatly increases the ability of the Courts to use mediation to resolve cases quickly & cost effectively.

Mediation is successful in approximately 80% of cases
with a typical mediation lasting only one day

This article was published in America and is based on American Research, however many of the findings and observations have significant relevance to Medical Negligence cases here in Ireland.

Physician participation in the litigation alternative would create opportunities to improve doctor-patient communication and learn from errors, according to researchers.

Mediation can help mitigate the costs, both emotional and financial, of medical liability lawsuits, according to a recent study. But without participation from physicians, not just their lawyers, other quality improvement benefits that can come from the litigation alternative get lost.

“It seems pretty clear from the data that there is an economic case … to support the notion mediation is a more efficient, cost-effective process,” said Carol B. Liebman, a professor at Columbia Law School in New York. She co-wrote the report published in the October Journal of Health Politics, Policy and Law (www.ncbi.nlm.nih.gov/pubmed/21123671/).

“Our disappointment and surprise was hospitals and physicians are not using mediation in a way to help improve patient safety.”

The study analyzed 31 cases referred for mediation by various hospital organizations in New York City from 2006 to 2007. The voluntary process uses an impartial outside mediator to help resolve medical liability lawsuits out of court, though parties retain the option to litigate, and any information shared remains confidential.

Overall, the various participants in the mediation’s, including patients, plaintiffs, defense lawyers, and hospital and insurance representatives, said they were satisfied with the proceedings, with 71% of the cases settling. Mediation was shown to save time and ultimately expenses for both parties involved, while compensating injured patients more quickly.

Settlements ranged from $35,000 to $1.7 million, with an average amount of $250,000. On average, the mediation’s took 3.7 hours, with most attorneys spending about six hours to prepare. Those figures stand in contrast to the 100 hours, or several days, lawyers reported would be required for trial preparation.

Missed opportunities

However, opportunities for improving physician-patient communication and learning from medical errors were missed when not a single physician attended the mediation proceedings, researchers said. Twenty-five of the 31 mediation’s were attended by plaintiffs, some of whom, when interviewed, cited communication breakdowns before litigating.

“Certainly, if you do not have medical professionals at the table, any information you discover from the patient about what went wrong and whether what went wrong was a medical error, is not going to be in the hands of people who can go back to the institution and make changes,” Liebman said.

Some defense lawyers cited doctors’ work schedules as an obstacle to their participation, while others expressed a desire to protect their clients from being subjected to potential verbal attacks. The physicians were not interviewed.

A hospital or insurer representative was present in 20 cases. In five of the lawsuits, an apology was offered to the patient. In four cases, hospital representatives who participated said they gleaned information from the proceedings that could lead to better practices.

Absent the key players, and left largely to lawyers, mediation becomes more about money than about medical care, Liebman said.

Although there is value in fairly compensating injured patients, “hospitals are beginning to recognize there is a lot more going on than just trying to win a case, and mediation presents an opportunity for a whole range of things, from reconciliation to gathering information to restoring reputations,” she said. “That is very powerful and very important to the patient safety piece.”

This Article appeared on the website American Medical Association
View Original Article.

Mediation Services

If you have a client or know someone who may benefit from the Mediation & Dispute Resolution Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is an afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

September 15, 2011

Question – In the middle of an employment tribunal dispute with an employee who has claimed that a decision not to promote him was discriminatory, but has not resigned. His solicitors have suggested mediation – is that a good idea or will it be just more legal costs?

Like it or not, mediation is probably the way of the future in employment litigation. Whether or not it will work in all cases remains to be seen, but statistics suggest that mediation’s conducted through the employment tribunal lead to a settlement in 65% to 70% of cases, and more than 80% of private (commercial) mediation’s are resolved on the day, so the odds are good.

To help with your decision, some pointers on the nature of the beast. Mediation is:

• voluntary – either party can refuse to participate, either at all or beyond a certain point;
• confidential, both as to outcome and anything said or proposed in the course of the process;
• focused on solution rather than blame or legal liability;
• unlimited in the range of possible outcomes;
• quick – the availability of commercial mediators more or less on demand (just put “mediation services” into Google) means that the parties can often side-step the bulk of the delays inherent in tribunal proceedings. Where there is even the remotest chance that the relationship might survive, it is obvious that the sooner the dispute is resolved, the better; and
• cheap – a relative term, obviously, but since the mediation is focused on the solution, not the problem, much of the preparatory work associated with formal tribunal proceedings can be avoided, especially witness statements. In addition, the vast majority of mediation’s take place over one day only, while many tribunal cases (especially discrimination claims) take somewhat longer.

On the other hand, mediation is not:

• a finding or remedy imposed by a third party or by arbitration;
• public, unlike the tribunal;
• based on technical legal analysis;
• a cure-all – it will not work in every case and there can be good grounds for an employer declining to participate;
• an admission of liability by the employer or of weakness by the employee; or
• easy – to make the most of the process you will need to engage fully in it, with an open mind and a willingness to be challenged and, if necessary, to look outside traditional positions of right and wrong, vindication and “fairness”.

In broad terms, the mediation process recognises that both parties to a dispute usually want it resolved. There are exceptions to this – such as where a party is driven by emotion of principle or the need to establish a precedent – but, when reality is allowed to intrude, a solution is generally better than no solution. Generally, both parties accept within themselves that there may have to be some degree of compromise and that the solution they would ultimately swallow may be less than their ideal. There is much truth behind the old line that a good settlement is one that makes both parties equally unhappy.

In considering outcomes, the mediator will encourage the parties to look at remedies or solutions that would not be available to them through formal tribunal proceedings, things that may be emotionally or professionally more valuable to them than mere cash. One good reason for using mediation in your case is the strain placed on working relationships by the background litigation, and the risk of a victimisation claim if the employee senses himself in any way disadvantaged.

He probably wants to leave and you almost certainly want him to do so too, but neither can raise that possibility: you for fear of his taking it as victimisation/constructive dismissal; and he so as not to weaken his negotiating position. The employment tribunal cannot help you with this – depending on the outcome, your employee will simply become either terminally embittered or unmanageably smug. However, a mediation could include provision for an apology, training, contractual changes, an internal transfer, or simply an agreed severance.

The role of the mediator is to encourage each party to consider more consciously the attractions of a solution on some terms or other as contrasted with the alternatives if no solution is reached. You may well consider the claim against you to be misplaced, but you cannot avoid the reality of legal costs, the time and distraction caused by the tribunal process, the possibility that you are wrong, and so on. Equally, your employee, confident though he may seem, also faces stress, expense, publicity, litigation risk, etc. You will both be pushed hard to think about what you need, rather than what you want, but it always remains your decision to settle or not in the end. As a result, since the terms of the settlement are the parties’ own, they tend to “stick” much better than other resolutions.

At the end of it, if the mediation has not worked, you will be out of pocket by the amount of any legal costs incurred. However, you will have given nothing away and experience shows that even mediation’s that fail on the day can alter the parties’ thinking so that terms are nonetheless reached shortly afterwards.

This Article appeared on the website Personal Today
View Original Article.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

Past Articles

• Mediation in Medical Negligence Cases – Doctors Afraid to Explain. (Part 1)
• The Advantages of Early Neutral Evaluation (ENE) in all types of Mediation
• How Workplace / Employment Mediation works in practice

In short

Mediate Ireland provides training for the legal profession on how to act in Mediations – before, during and after.

Mediate Ireland is very experienced in providing mediation services in a number of key areas including Divorce/Separation, Commercial, Workplace/Employment

Newsletter – September 2011

Study says “Mediation saves time and money in medical negligence cases”

Physician participation in the litigation alternative would create opportunities to improve doctor-patient communication and learn from errors, according to researchers.

Mediation can help mitigate the costs, both emotional and financial, of medical liability lawsuits, according to a recent study. But without participation from physicians, not just their lawyers, other quality improvement benefits that can come from the litigation alternative get lost.
Read More…

Employment Dispute – is Mediation a good idea or will it be just more legal costs?

Question – In the middle of an employment tribunal dispute with an employee who has claimed that a decision not to promote him was discriminatory, but has not resigned. His solicitors have suggested mediation – is that a good idea or will it be just more legal costs?
Read More..

Introduction to Mediation Advocacy (CPD Training 6Hrs)

The module that we have devised includes active participation, role play and runs over 5 hours starting at 2:30pm and running till 7:30pm. The cost of the course is €215 & 6 CPD points will be awarded. There has been overwhelming demand for this training, selling out very quickly as the course is limited to 12.
Find out more…..

October 2011
Dublin – 19th Oct – BOOK NOW

November 2011
Dublin – 24th Nov – BOOK NOW

December 2011
Dublin – 15th Dec – BOOK NOW

“Efficent course and good value for insight into the mediation process” - Owen Hickey SC – Barrister-at-Law Senior Counsel

“Recommend this short concise course to anyone advising clients going into mediation” - Sinead Farrelly – Early & Baldwin

“Well worth attending and useful in everyday practice” - Kate Craig – Partner, PJ Byrne & Co

“Very effective at imparting mediation skills, discovering what mediation means as a process and learned a lot about the process” - Sarah Scally – (Solicitor) Sarah R Scally & Co.

“A very Interesting introduction to Mediation, Mindsets & the lawyers role within the process” – Kellie Butler BL – Barrister-at-Law © 2010 Mediate Ireland, 1 Dillon Street, Clonmel, Co. Tipperary, IrelandTelephone – (052) 6123711 | Fax – (052) 6123717info@mediateireland.com ]]> http://mediateireland.com/mediation-ireland-mediator-news-sep11.html/feed 0 http://mediateireland.com/mediation-types?utm_source=rss&utm_medium=rss&utm_campaign=mediation-types http://mediateireland.com/mediation-types#comments Thu, 22 Sep 2011 15:33:19 +0000 Mediate Ireland http://www.disputeresolutionireland.com/?page_id=1385

Civil / Commercial Mediation

Any type of commercial dispute between companies, sole traders or individuals is ideal for mediation, at any stage of the dispute. Disputes can be mediated even if court proceedings have been issued. [Click to Read More]

Workplace / Employment Mediation

Mediation provides a structured, effective means of avoiding Employment Tribunals and Courts and bringing disputes to resolution in a quicker and more efficient and cost effective manner. [Click to Read More]

Family Mediation – Separation / Divorce

Going through a Separation or a Divorce is one of the most stressful times in any persons life and Family Mediation can help at this time.The most sensible approach is to bring in a third party to Mediate the issues. [Click to Read More]

Wills / Sucession Mediation- Family Business or Farm

There is usually a feeling within the family that they “should” be able to work things out among themselves but the engagement of a mediator to help to find a resolution can help to avoid splits that everyone will regret in the long term. [Click to Read More]

Sports Mediation

Eligibility rules, performance enhancing drugs, selection criteria, commercial complexities and contractual difficulties are among the bewildering array of disputes faced by Irish sportsmen and women and the governing bodies. Mediation can lead to a long lasting resolution of this type of dispute. [Click to Read More]

See “What is Mediation” on this website

What is the difference between Mediation and the Court Process?

In litigation, the parties retain solicitors / barristers whose focus is to prepare a case which will result in the best decision for their client. Litigation is adversarial and confrontational and frequently demeaning of the other party. In litigation you never know what the outcome will be until the case is ruled upon. There are no guarantees that anyone will come out as the ‘victorious party’. In the long run, everyone pays a price in litigation. Mediation is based on the principle that people are capable of resolving their own disagreements if given the right support. It is non-adversarial, non-confrontational and the parties agree that information will be openly shared in a safe, neutral environment. It is a voluntary and totally confidential process. Either party can withdraw or choose not to participate at any time. The mediator does not judge who is right or who is wrong, but works with parties to help them arrive at a solution to satisfy their interests. No notes or transcripts are kept following the mediation and the mediator will not reveal anything discussed during the mediation to anyone other than the participants. The mediator cannot appear as a witness for either party in any subsequent legal action. The mediator does not represent either party.

When can you use Mediation?

Mediation is effective when both parties want to resolve a disagreement. It is most effective when:

• The issue involves strong emotional feelings
• The parties know each other
• Both parties are open to using Mediation
• The parties want to maintain their relationship
• The parties have reached an obstacle in their discussions
• One or both parties want to avoid costly legal proceedings

What Kind Of Disagreements Can Be Mediated?

Generally any kind of disagreement can be mediated. Not all legal matters are suitable to mediation, the exceptions are legal proceedings which involve criminal proceedings, or require statutory, judicial or regulatory case law to resolve. Whether it is a civil dispute involving hundreds of thousands of euro, a workplace dispute, a divorce, or a family matter, the parties can resolve it without resorting to traditional adversarial litigation. Even after litigation has been started, mediation can be a practical way to settle the matter in a less expensive and timely manner.

Who Should Consider Mediation?

Mediation works best for parties who wish to settle without going to court or do not wish to continue court proceedings and are willing to commit to a genuine effort at resolution, in good faith. Mediation is very effective when the parties live nearby or have to maintain their relationship on a day-to-day basis. Separated parents, business colleagues, friends and relatives may need or wish to have continuing relationships with each other. There is a mutually beneficial incentive to continue or re-create an amiable relationship and to explore ways to prevent disagreements from arising in the future. Mediation allows the parties to maintain control over their decision making rather than letting a judge decide. The parties control the amount of information that becomes a part of the public record. Court procedures and allegations made therein can be very public, unnecessarily embarrassing and personally damaging.

What does Mediation do?

Mediation is “interests-based” which means that it focuses on the underlying interests of the parties, and not their positions. Mediation is used to define complaints, problems and disputes.

• Discover options and solutions
• Manage the resolution process in a ‘win-win’ manner
• Facilitate mutually agreeable settlements
• Formulate guidelines and policy
• Record agreement with written documentation
• Prevent future disagreements

What Are The Most Important Aspects Of Mediation?

Aside from low cost and high success rate, mediation has a number of important aspects.

Privacy. The process of mediation is confidential as it relates to all participants, including solicitors/barristers and the mediator. Everything discussed in the mediation is confidential. Any documents that are exchanged in the mediation are confidential. Any legal or other suppositions advanced in the mediation are confidential. Mediation is not a matter of public record. The mediator cannot appear as a witness for either party in any subsequent legal action. No notes or transcripts are kept by the mediator following the mediation.

Control. The parties will decide their own outcome and own it themselves. No third-party will be imposing a judgement. No outsiders will be scrutinising the rights and wrongs of the agreement. The parties have the unique opportunity to tell their own side of the story – through the Mediator where appropriate- without lawyers objecting that what is being said is inadmissible for some reason. The parties have the unique and often very satisfying experience of creating their own resolution in their own words to resolve their disagreement.

Relationships. It is important that relationships be kept intact in so far as possible or that a new basis for their future be established. Business partnerships, family, friendships and social relationships of long standing are often soothed and become stronger as a result of mediation.

Responsibility. The mediation process encourages the parties to assume personal responsibility for their respective roles in the disagreement. It’s not blaming the other side but rather accepting ownership for the things contributed or done to create the disagreement. Remember, its takes two to tangle. However, the greatest responsibility of each party is to resolve the problem and Mediation provides a user-friendly vehicle to help them get there.

Speed. A mediation can be organised quickly. There is no long wait for a court date. Resolution of most disagreements is usually achievable within a day. More complex commercial disputes and conflicts may require more time and communication to explore the interests and positions involved.

What Are The Direct Benefits Of Mediation?

Mediation usually provides a quicker, more cost effective and more satisfactory outcome than litigation. It may take months and sometimes years to resolve a disagreement in court, mediation can be paced according to the parties’ needs and schedule. Mediation is voluntary and requires both parties agreement to the make a final resolution. Therefore, parties are more satisfied with the outcome than with a decision made by a judge or jury. This results in a higher likelihood of compliance with the mutual agreement since parties are usually more likely to comply with a solution to which they have agreed. In mediation, the parties are able to customize the resolution agreement to meet their needs rather than being constrained by the limited options available in court. Most important, parties are more likely to preserve an amicable relationship in the future.

Who Wins, Who Loses In Mediation?

In theory, no one loses; everyone wins. This does not mean that both sides come away from mediation automatically happy with the outcome. Each party must be comfortable enough to tell their story and assert their interests. The mediator facilitates and makes sure each party is heard, however, it is each person’s responsibility to say what is on their mind. Whatever is agreed upon is mutual and neither party is forced to agree anything which they do not want. However, common sense teaches us that closure is important and sometimes we must bend a little to get what we really need.

When Is The Best Time To Begin Mediation?

The best time is sooner rather than later, before the parties incur the expense and emotional turmoil of litigation. It frequently happens that one party is ready to begin mediating before the other, so some sensitivity to the feelings of the other party is courteous. If legal representation has already been secured, it is not too late. Most cases settle before trial, so it’s almost never too late to mediate. Most legal professionals and courts advise mediation before litigation.

What Goes On At A Mediation Session?

Within a mediation session, two types of meetings can occur. First, the joint session. This is when everyone is present. The parties, their representatives and lawyers meet with the mediator and outline the basic issues, interests and positions of each side. The second type of meeting is called caucus. A caucus is a private and confidential meeting between the mediator and each of parties and their lawyers. The mediator shuttles between the parties. Anything discussed in a caucus cannot be disclosed to the other party without agreement. In mediations, both types of meetings occur as it helps overcome positional obstacles and helps maintains a forward progress toward a mutually agreeable resolution.

How Do The Parties And The Mediator Work Together?

The normal process is for the parties, their representatives and the mediator to meet together, at scheduled sessions determined by the parties. Essentially mediation runs like a guided negotiation between the parties, with the mediator facilitating the communication. Most meditations generally use the following five-stage format.

Stage 1: Establishing the Process: The mediator and the parties agree to a number of guidelines they will follow in the mediation. This usually includes only allowing one person to speak at a time, treating all parties with respect, and confidentiality.

Stage 2: Exploring Positions and Interests: The parties usually make their initial statements regarding their disagreement and define what they hope to resolve in the mediation. This, and the steps below, can be in plenary session or to the mediator privately.

Stage 3: Developing Solutions: Each party discusses their interests and possible solutions to resolve their disagreement.

Stage 4: Finalizing a Resolution: The parties assisted by the mediator create a solution mutually agreeable to all the parties.

Stage 5: The Written Agreement: Once agreed on, the agreement is formalized in a written resolution agreement.

During The Mediation, What Does The Mediator Do?

Traditionally mediation is conducted by a single mediator. However, co-mediation or a panel of three mediators has been used for specific types of mediation.

At the Initial Session:

• Assesses whether, when and how to intervene with the parties
• Creates a comfortable environment for communication
• Invites parties to participate, to share their thoughts and concerns
• Establishes the purpose, structure and guidelines of mediation with
  the parties

Throughout the Session:

• Helps each party to feel heard, respected and acknowledged
• Identifies key interests that parties need to address and issues
  influencing those interests
• Outlines the issues and interests so they can be visualised
• Continues to create an ambiance of safety and dignity
• Helps keep the process focused and forward moving
• Manages emotions and communication styles
• Deals with unproductive power dynamics and egos
• Encourages risk taking
• Facilitates an effective negotiation process
• Sorts out personal and emotional impasses and position obstacles

During the Resolution Process:

• Encourages creativity and out-of-the-box ideas
• Helps parties brainstorm solutions with each other
• Helps each party think through their options
• Establishes vocabulary and words of potential agreements
• Discusses how agreed resolutions can be implemented
• Drafts a Resolution Agreement to be reviewed
• Finalizes a Resolution Agreement in writing to be signed by all parties

How Long Does Mediation Take?

Resolution for approximately 80% of conflicts is usually achievable within a day. More complex commercial disputes and conflicts may require more time and communication to explore the interests and positions involved.

Why Use Mediation If We Are Unable To Agree?

Generally, it is not so much ‘not wanting’ to agree but not ‘knowing how’ to agree. A mediator can bring a new perspective. The mediator’s own experiences, training and knowledge can assist parties in exploring alternatives that they might not have previously considered.

Do I Need To Hire A Solicitor/Barrister To Mediate?

Parties may or may not want lawyers to be present. It is a choice that is usually discussed between the parties prior to mediation. Some parties prefer to decline legal representation and do their own preparation and presentation. Others, especially in complex issues, feel more secure with a legal representative present. Most parties in mediation prefer to have a consulting lawyer present to answer questions that may come up during the mediation. In addition, the lawyer can clarify information provided by the mediator or provide another perspective. The consulting lawyer can also review the resolution agreement to be sure it accurately describes the agreement reached, is clear and enforceable.

Is Mediation Legally Binding?

The written agreement is binding on the parties unless it is expressed not to be so. Parties need to tell the Mediator if what they have agreed is not to be binding on them. A legally binding mediation agreement is a contract and can be sued on in the event of a breach.

If I Use Mediation, Will I Need To Go To Court?

Usually it will not be necessary but sometimes statutory provisions will make it necessary to have the mediated agreement or specific terms thereof made Orders of Court. For example, a divorce can only be granted in the Circuit or High Court and where the Judge is satisfied that proper provision has been made for all the parties. In the light of so much judicial recomendation for mediation it is highly unlikely that a Judge will upset the parties own agreement, once the statutory provisions have been met.

Must An Agreement Be Reached In Mediation?

No party is forced to accept a solution that does not meet his/her interests and needs. The parties should understand that the mediation goal is to create a solution that comes as close as possible to a “win-win” agreement, while recognizing that parties don’t receive everything on their wish list. If there is no resolution, the parties may still go to court to resolve their disagreement.

Can A Mediator Be A Witness or Talk To The Judge?

No. The mediator cannot appear as a witness for either party in any subsequent legal action nor talk to anyone about the case. Additionally, neither the parties nor their attorneys may introduce into evidence what happened or did not happen during the mediation.

How do I start the Mediation Process

That’s where Mediate Ireland can help. Either click the link below, “Enquire about Mediation” and complete the enquiry form or call 052-6123711 to talk to a mediator about your case. If it helps, one of our mediators can contact the other parties to explain the procedure and encourage their participation.

When all parties agree to mediate, we will send out the Mediation Agreement for signature by all parties and their representatives.

Where it may be difficult to agree to mediation, Mediate Ireland, may be able to assist by working between the representatives of all parties, to “Mediate the Mediation”

• Resources are scarce for all Irish sports bodies. Contesting, even being represented at, a formal court hearing is an expensive drain on those resources.

• Most sports operate on a seasonal basis. Pending litigation can seriously disrupt the nature of a season and the outcome of competitions.

• Most of Ireland’s sports communities small, personalised and largely informal in operation. The adversarial and public nature of the ordinary courts system often aggravates situations hugely leading to demoralized players and officials – often for years if not generations

• The recent increase in sports litigation is worrying in that it possibly reflects a fundamental lack of trust by participants in the ability of their governing organisations to deal with appeals in a fair, transparent and efficient manner.

All of these difficulties can be addressed at an early stage in Sports Mediation where matters can be aired and resolved in an open transparent way through the impartiality and assistance of the Mediator in assisting the parties to come to outcomes acceptable to all sides.

Ideally Mediation should be used in any dispute involving Wills, Inheritance or Probate. There is usually a feeling within the family that they “should” be able to work things out among themselves but the engagement of a mediator to help to find a resolution can help to avoid splits that everyone will regret in the long term.

Communication between siblings, elders and in-laws will be assisted by a mediator who can keep the parties focused on the issues rather than on versions of “history” that are usually emotion based. Issues that need to be dealt with will be identified, particularly where needs are ongoing, and then movement towards a solution that suits all parties can then emerge and be facilitated with areas of responsibility being identified.

Real fears around financial limitations, nursing home or medical care costs for the person or couple passing on the business or farm on the one hand; or on the other, the viability of the business for whomsoever might be taking over have to be addressed. Issues like the health of the successor or the possibility or their marriage ending in Divorce also raise real fears.

Oftentimes these issues are avoided because of the pain, for oneself or loved ones, that can be involved in facing them. The issues can be raised in the safe environment provided by Mediation and potential future problems can be obviated in a safe and secure setting provided by a trained professional Mediator. The interests of all the parties, looking forward, will dominate the process.

Going through a Separation or a Divorce is one of the most stressful times in any person’s life. A Mediator in Family Mediation can help at this time. Mediate Ireland provides mediators nationwide with particular emphasis on Dublin, Cork, Limerick, Galway & Tipperary.

The most sensible approach is to bring in a non-involved third party to Mediate the issues, using our Family Mediation Service. This will diffuse the situation and provide an environment where a guided and safe communication session can happen.

What Mediators do during a Family Mediation

The many  emotionally charged areas of conflict that arise and are dealt with by Mediators include;

• Childcare arrangments
• Spousal & Child Maintenance,
• Division of Assets,
• Pensions and Insurances / Business Assets / Future Inheritance,
• New living arrangements, including that of any children,
• Issues involving children including, Access, Custody and Guardianship
• Issues surrounding the education and schooling of the children,
• Family holidays & special occasions (Christmas etc),
• Succession Issues,

During this time, many couples during a breakup experience arguments, confrontation and emotional hurt which make dealing with these issues even more difficult and fraught.

The Family Mediation Process is:

• A totally confidential process between the parties
• A safe, neutral and non-threatening environment in which to discuss issues
• Completely Impartial
• An organised and constructive process
• Non judgemental and Non adversarial (as would be typical of court proceedings)
• A process leading to a lasting long term agreement
• Agreed to and ‘owned’ by the parties themselves
• Quick, typically only lasting a day

It is important that a separating couple in a breakup have their own independent legal advice. At the end of the Family Law Mediation process, a mediated agreement is reached, which is a clear jargon free, easily understood document. This document will usually involve technical arrangements to be drawn up and/or entered into thereafter – to give full legal effect to the couple’s own agreement. Whilst we provide services directly to the parties we recommend, in most cases, that they have Solicitors and/or Counsel with them, or immediately available to them, for the mediation process. The solicitors will understand the parties’ own agreement far better if they are present or involved when it is reached – rather than being presented with it later on.

The ultimate separation evolving from the mediated agreement may take the form of a traditional ‘Separation Agreement’; or, it may take the form of Consent or Compromise Terms upon which a court can grant a (Judicial) Separation or a Divorce. Accordingly independent separate legal advice is recommended so that the agreement of the parties can be fully and legally effected thereafter.

Family Law Mediation in a breakup will:

• Significantly speed up the process of either a Separation or Divorce
• Give a better and more effective outcome that makes sense to the parties themselves
• Dramatically reduce the cost of the whole process

Mediation provides a confidential, structured and effective means of avoiding the significant costs of Employment Tribunals and the Courts. A Professional Mediator will bring disputes to resolution in a quicker, more efficient and cost effective manner. Because of the Confidential Nature of Mediation it is particularly suited to resolving conflict arising from, bullying, harassment, restructuring & redundancy and mis-interpretation of employment rights & contracts. It is not in a company’s or employee’s interest to have these disputes aired in public as it invariably leads to bad publicity and damaged reputations.

How does Employment Law Mediation function in the Workplace

Mediation provides certainty to the parties in that they will sign up to their own resolution and thus it can also deliver to the parties benefits unavailable in an employment tribunal or court. Where the relationship looks as if it might be salvaged, the parties can plot both steps for desired change to achieve harmony and also, where necessary an agreed exit strategy. That way, if the issues rear their ugly heads again, the parties will already have agreed how they will deal with them. If the relationship is beyond repair, benefits can be obtained by agreement which cannot be ordered by courts or tribunals: agreed references, effective covenants about workplace information and individuals, and secrecy.

The Benefits of Employment Law Mediation are:

• Success in approximately 80% of disputes mediated
• 70% quicker than litigation
• At least 30% cheaper than pursuing a case through Employment Tribunals or the Courts
• Totally confidential process between the parties
• A safe, neutral and non-threatening environment in which to discuss issues
• Completely Impartial
• An organised and constructive process
• Non judgemental and Non adversarial (as would be typical of court proceedings)
• A process leading to longer lasting agreement
• Agreed to and ‘owned’ by the parties themselves

Using an Employment Mediator will:

• Dramatically speed up the process of settling a dispute
• Give a better and more effective outcome that makes sense to the parties themselves
• Leads to greater harmoney in the workplace
• Ultimately reduce the cost of the whole process

New strategies to resolve conflict in the workplace

Where difficulties arise between workers, or with relationships between them, employers often feel that their only choice lies between disciplining one of the combatants or, removing a difficult individual. Personality clashes can be avoided or managed if an environment for resolving disputes or differences without commencing formal procedures is in place.

Mediation can fill what is currently a very expensive gap, in human, management, production and legal terms in the present strategies and structures adopted and available. New strategies to introduce Mediation are patently beneficial from all perspectives, effective strategies not only for when issues have arisen and relationships have broken down, but also as structures and means for heading off and avoiding breakdown. Entrenchment and embitterment can be avoided by the adoption of such Mediation structures and practices.

The adoption of positions of employers and employer organizations on the one hand and of employees and unions on the other have become so ingrained in Grievance and Disciplinary procedures and precedents that very often the particular problem that requires resolution, the wood, becomes totally lost in habitual responses, practices and procedures, the trees.

Mediation practices and skills will keep focus on the issues and, more particularly, on means of resolving them that are acceptable to all parties.

The value of Mediation is recognised by the Equality Tribunal and the Labour Relations Commission. Early mediation can produce resolution even before cases get to that stage. Assertions of bullying and harassment are best dealt with at the earliest possible opportunity.

Any type of dispute or conflict between companies, sole traders or individuals is ideal for commercial mediation. There are many forms of ADR (Alternative Dispute Resolution) however Mediation in Ireland has been consistently shown to produce the most successful outcomes. Disputes can be mediated even if a Lawsuit/Litigation has commenced. The quickest,most cost effective & successful approach for business  is to bring in a Commercial Mediator to help parties resolve the issues. Mediate Ireland understands that disputes can be Prohibitively Expensive to litigate and inevitably lead to Stress, Broken Relationships, Bad Publicity, Lost Business, Damaged Image and Wasted Time, using a mediator is the answer.

Disputes/Lawsuits that can be successfully mediated

• Issues in relation to the performance of contracts
• Disputes arising from the non payment for goods or services
• Disputes arising from the supply of Defective Goods or Services
• Building Construction Disputes
• Sub Contractor Disputes
• Banking & Financial
• Intellectual Property
• Shareholder / Partnership / Board of Director Disputes
• Property & Boundary Disputes
• Family Business Disputes
• Personal Injury

Mediation in the Irish Construction Industry

The construction industry has embraced Mediation and has included a Mediation clause as the first option for parties in dispute resolution in its standard contracts. A survey conducted by the Construction Industry Federation indicates that Mediation was chosen for 60% of disputes between 2001 and 2005 and of these 81% were successfully resolved giving rise to an estimated saving of €200m to the industry.

A 2010 survey comparing the costs and time saving of Mediation v Litigation in Ireland and the EU concluded the following;

Cost of Lawsuit (EU) per €200,000 of claim €25,337
Cost of Lawsuit (IRL) per €200,000 of claim €53,800
Cost of Mediation (IRL) per €200,000 of claim €7,000. The cost difference speaks for itself.

Time taken to Litigate a €200,000 claim (IRL) 515 Days
Time taken to Mediate a €200,000 claim (IRL) 40 Days

Commercial Mediation in Ireland’s Courts

Commercial & Civil Mediation is a rapidly growing form of ADR (Alternative Dispute Resolution). This is especially true since 17th of Dec 2009, (effective 1st of Jan 2010) when the New Circuit Court Rules (S.I.539 of 2009) were signed into law by Dermot Ahern, the Minister for Justice, Equality and Law Reform.

“Circuit Court Judges – and the County Registrar at a case Progression hearing – are permitted to adjourn certain civil proceeding for a period not exceeding 28 days to allow the parties to use ADR to settle or determine the proceedings at issue.”

Figures available from the Commercial Court indicate that between 2005 and 2008 where the parties voluntarily agreed to mediate their disputes after commencing proceedings in the Court, 63% of those cases settled following Mediation . Since 1st of Jan 2010 parties can now be instructed by the court to use mediation to try and resolve the dispute, prior to proceeding with the case in court.

The Mediation Process is:

• Successful in approximately 80% of disputes mediated
• 70% quicker than litigation
• At least 30% cheaper than pursuing a lawsuit through the courts
• Totally confidential process between the parties
• A safe, neutral and non-threatening environment in which to discuss issues
• Completely Impartial
• An organised and constructive process
• Non judgemental and Non adversarial (as would be typical of court proceedings)
• A process leading to a lasting long term agreement
• Agreed to and ‘owned’ by the parties themselves

Using a Commercial Mediator will:

• Dramatically speed up the process of settling a dispute
• Give a better and more effective outcome that makes sense to the parties themselves
• Increases the likelihood of both parties doing mutually beneficial business together in the future
• Ultimately reduce the cost of the whole process

Costs incurred in Mediation are a fraction of those involved in litigation. Both in monetary and personal terms, mediation is inexpensive compared to proceeding to a court hearing.

Significantly Shorter Time Frame

Mediation can be scheduled within a very short timeframe: it can be soon after a dispute arises or at any time throughout an on-going dispute; and, following the pre-mediation processes and agreements, can often be concluded in a single day. This reduces the time from start of dispute to settlement significantly.

Non Adversarial

Mediation is an interest-driven process based on consensus and collaborative agreement. Mediation helps the parties to communicate with each other, either directly and/or through the Mediator, to explore the issues which are of real importance to them – rather than necessarily focusing on their respective ‘rights’. The parties are encouraged to find ways to address their present and future needs, rather than dwell upon who may have been right or wrong in the past.

Non Judgemental

As the process of mediation is based on mutual agreement, the mediator does not impose a decision, nor make any kind of judgment – unlike court or arbitration, the mediator helps the parties to find their own, mutually acceptable, solution.

Parties Always in Control

Mediation belongs to the Parties. The parties to a dispute remain in control of the outcome and of any potential resolutions as well as having the right to end the mediation at any time should the process reach stalemate.

Helps to Preserve Relationships

Mediation works towards long-term solutions for the Parties in dispute, and where there is an ongoing relationship places significant emphasis on how they will interact in the future.

Totally Confidential

The confidential nature of mediation allows the Parties to negotiate freely and productively without fear of publicity. All those participating in a mediation are protected by a confidentiality agreement which is signed by all parties and witnesses before the mediation begins. Issues discussed between a party and the mediator will not be disclosed to the other party, except by agreement.

Mediation is “Without prejudice”

The mediation process is ‘without prejudice’ so that on the rare occasion that a settlement is not reached litigation may continue without the parties needing to worry about having ‘given away’ anything that the other could use ‘against’ them or in court. All notes and documents that are in the possession of the mediator are destroyed at the end of the mediation, in the presence of the parties. As part of the mediation agreement it is agreed that the mediator cannot appear as a witness for either party in the event of any future court proceedings.

Always Leaves Other Options Open

Engagement in a mediated intervention does not preclude participation in a different dispute resolution process. If an agreement is reached, parties should be made aware that the agreement can be made legally binding, but can also be used to formulate resolutions that do not need legal documentation. If the mediation fails to result in a comprehensive solution on the day, the process of mediation invariably provides insights and understandings – even partial agreements – which may encourage and support continued negotiation after the mediation.

Promotes use of Creative Solutions

Mediation allows for creative solutions which may not be available in other court based approaches.

Low Risk

Settlement potential is high and there are benefits to participating in the process for all.

Mediate Ireland provides Mediation Services to Companies, Individuals, Government Agencies and Local Authorities throughout Ireland. We have dedicated mediation suites at our head office in Clonmel, Co. Tipperary and offices in Tipperary and Cork.

The Council of the European Union defines Mediation as:

“a structured process … whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by law of a Member State.“

A Mediator is defined as:

“any third person who is asked to conduct a mediation in an effective, impartial and competent way, regardless of the denomination or profession of that third person in the Member State concerned and of the way in which the third person has been appointed or requested to conduct the mediation.“

Mediation, (the most effective form of ADR, Alternative Dispute Resolution), is used where opposing parties want to find a solution to a dispute, yet for some reason cannot reach a settlement through discussion between themselves. In addition the parties involved in a dispute would rather negotiate a settlement, than hand over total control to a complete stranger – a Judge who will decide by Court rules and procedures.

Difference between a Mediator and an Arbitrator or Judge

In contrast to an Adjudicator, Arbitrator or a Judge the Mediator is not a decision-maker. In the typical case of a dispute ending up in court, the parties will obtain a resolution, however this resolution is thrust upon them by the Court. The result probably will leave neither party to the dispute totally happy. In mediation, on the other hand, the parties have control over the solution, and the resolution can be unique to the dispute.

The Mediator’s role is to be an impartial and independent third party, to assist the parties in moving towards and reaching a mutually agreeable settlement of their differences. Mediation is more likely to produce a result that is mutually agreeable, or win/win, for the parties. Often solutions developed by the parties themselves are ones that a judge could not provide.

Mediation, (the most effective form of ADR, Alternative Dispute Resolution), is used where opposing parties want to find a solution to a dispute, yet for some reason cannot reach a settlement through discussion between themselves. In addition the parties involved in a dispute would rather negotiate a settlement, than hand over total control to a complete stranger – a Judge who will decide by Court rules and procedures.

Difference between Mediation and Arbitration or Court

Because the result of Mediation is achieved by the parties working together and is mutually agreeable, compliance with the mediated agreement is usually high. However, a mediated agreement is fully enforceable in a court of law if it was agreed that the mediated agreement would be binding on the parties.

Mediation is a totally confidential process between all parties. In a mediation, the parties cannot be compelled to disclose information that they prefer to keep confidential; this however should be viewed in the context that the parties have signed up for the primary purpose of resolving their dispute – any lack of relevant disclosure would be likely to frustrate such purpose. Conversely, if a party chooses to disclose confidential information or make admissions in order to promote a resolution of the dispute, then that information cannot be provided to anyone – including any Court Proceedings, Litigation or Arbitration – outside the context of the Mediation. The extent of this confidentially of the Mediation is outlined in the Mediation Agreement and the Mediation Rules which will be signed up to and adopted by the parties prior to the commencement of the process.

This is the one of the main reasons why the mediation process is so successful, as it promotes open and clear discussion between the parties, without the fear of public disclosure or publicity.

The mediator in the dispute is a neutral third party who is trained in conflict resolution, negotiation and in working with difficult situations. Mediators are likely to work as much with the emotional and relational aspects of a dispute as they are to work on the “topical” issues of the matter. The mediator, as a neutral, gives no legal advice, but guides the parties through the problem solving process. The mediator may or may not suggest alternative solutions to the dispute. Whether he or she offers advice or not, the mediator helps the parties to think “outside of the box” for possible solutions to the dispute, thus enabling the parties to find the avenue to dispute resolution that suits them best.

Mediate Ireland provides a Free – No  Obligation Consultation Service with one of our case managers to discuss the suitability of your dispute for mediation. This is also an opportunity to ask any questions you may have about mediation.

To avail of this consultation offer please call 052-6123711 or click this link to make an enquiry

This service is provided by phone and lasts a maximum of a 1/2 hour.

Past Articles

• Keeping Control of your customer dispute – Mediation or a War of Litigation?
• Mediation should be used more to resolve workplace conflict
• Compulsory mediation urged in disputes over vulnerable people’s wills

In short

Mediate Ireland provides training for the legal profession on how to act in Mediations – before, during and after.

Mediate Ireland is very experienced in providing mediation services in a number of key areas including Divorce/Separation, Commercial, Workplace/Employment

Newsletter – August 2011

EU Mediation Regulations now law in Ireland

On the 5^th May 2011 with very little publicity the Minister for Justice and Equality, Mr Alan Shatter signed new regulations, SI No. 209 of 2011 European Communities Mediation Regulations 2011, into Law.

Mediation is now firmly on the radar of the government and will be a major consideration in any commercial, civil or family dispute.
Read More…

Difficult decisions pushing families toward Elder Care Mediation

As people age, financial planning can take on new levels of complexity. On top of the usual questions about managing assets, families may have to decide who will control the purse strings, and when. That, in turn, could determine where a person will live and how well.

Even a basic decision can mean a lot of questions. Say the parent needs to move out of the home. Will the house be sold and who makes that decision?. Those questions are giving rise to the practice of elder care mediation.
Read More..

Introduction to Mediation Advocacy (CPD Training 6Hrs)

The module that we have devised includes active participation, role play and runs over 5 hours starting at 2:30pm and running till 7:30pm. The cost of the course is €215 & 6 CPD points will be awarded. There has been overwhelming demand for this training, selling out very quickly as the course is limited to 12.
Find out more…..

September 2011
Cork – 21st Sept – BOOK NOW
Limerick – 22nd Sept – BOOK NOW
Dublin – 23rd Sept – BOOK NOW

October 2011
Dublin – 19th Oct – BOOK NOW

November 2011
Cork – 16th Nov – BOOK NOW
Limerick – 17th Nov – BOOK NOW
Dublin – 24th Nov – BOOK NOW

December 2011
Dublin – 15th Dec – BOOK NOW

“Efficent course and good value for insight into the mediation process” - Owen Hickey SC – Barrister-at-Law Senior Counsel

“Recommend this short concise course to anyone advising clients going into mediation” - Sinead Farrelly – Early & Baldwin

“Well worth attending and useful in everyday practice” - Kate Craig – Partner, PJ Byrne & Co

“Very effective at imparting mediation skills, discovering what mediation means as a process and learned a lot about the process” - Sarah Scally – (Solicitor) Sarah R Scally & Co.

“A very Interesting introduction to Mediation, Mindsets & the lawyers role within the process” – Kellie Butler BL – Barrister-at-Law © 2010 Mediate Ireland, 1 Dillon Street, Clonmel, Co. Tipperary, IrelandTelephone – (052) 6123711 | Fax – (052) 6123717info@mediateireland.com ]]> http://mediateireland.com/mediation-newsletter-august-2011.html/feed 0 http://mediateireland.com/mediation-mediator-training/introduction-mediation-advocacy?utm_source=rss&utm_medium=rss&utm_campaign=introduction-mediation-advocacy http://mediateireland.com/mediation-mediator-training/introduction-mediation-advocacy#comments Mon, 01 Aug 2011 11:00:00 +0000 Mediate Ireland http://www.disputeresolutionireland.com/?page_id=1353 ½ Day Interactive Training Course (6 CPD hrs)

“Very Beneficial in understanding the role of Mediators, Mediation process in resolving disputes & role of lawyers therein”

Eithne Hegarty BL – Barrister-at-Law

“Well worth the time and Effort”

Gerard O’Herlihy – (Partner) Nolan Farrell & Goff

Course Highlights

This course is designed to deal with the practical aspects for lawyers & other advocates who are considering Mediation as a means of resolving client issues. It highlights the differences between the Litigation Process, including settlement talks, and a Mediation process where clients are legally represented at the mediation. We will look at current and proposed Mediation Legislation, the Draft Mediation Bill 2010 and the growth of Mediation here and in other jurisdictions.

The training course gives participants a basic understanding of how Mediation can be used to resolve disputes involving litigation, interpersonal breakdown in the workplace, Family Disputes, Divorce & Separation, and also General Commercial / Contractual cases.

Who should attend

This course is for anyone who is starting to look seriously at Mediation as a Cost Effective, Faster and more satisfactory method of dispute resolution.

It is particularly suited to anybody who has clients involved in conflict and is considering Mediation as a means of resolution.

The course is designed for those who wish to experience what happens in mediation and how to advocate effectively for their Clients, as well as those who may be considering becoming Certified Mediators.

What you will Learn The importance of confidentiality in the mediation process The importance of clear & effective communication How to find out what the client really wants How to prepare for a mediation What happens in a mediation What it is actually like to advocate for a client in a mediation. A comprehensive update on recent changes in Legislation and the Draft Mediation Bill   Course Details No. of Participants 6 – 12max Course Times Registration 12:00pm Course 12:30 – 6:00pm Course Dates & Venues Listed Below Cost €215 Entry Requirements None CPD 6 CPD Hrs Law Society (inc 25% active participation CPD bonus credit) 5 CPD Hrs Bar Council of Ireland

What people are saying about this course “I found the mediation session (role play) very enlightening and extremely helpful. It has opened my mind to mediating family disputes as opposed to resolving family disputes by means of the court process” Edel Hamilton – (Solicitor) Legal Aid Board “Very effective at imparting mediation skills, discovering what mediation means as a process and learned a lot about the process” Sarah Scally – (Solicitor) Sarah R Scally & Co. “I really enjoyed this course & gained a lot from it that will be very beneficial in practice as a barrister” Catherine McLoone BL – Barrister-at-Law

Date	Location	Venue	Booking Details
Jun 13th 2012 – Wed	Dublin	Maldron Hotel – Smithfield
May 10th 2012 – Thur	Dublin	Maldron Hotel – Smithfield
Apr 19th 2012 – Thur	Cork	Ambassador Hotel – Cork City	COMPLETED
Apr 12th 2012 – Thur	Dublin	Maldron Hotel – Smithfield	COMPLETED
Dec 15th 2011 – Thur	Dublin	Maldron Hotel – Smithfield	COMPLETED
Dec 7th 2011 – Wed 12:00pm to 5:30pm	Cork (This course has been organised for the Southern Law Association)	Ambassador Hotel – Military Hill	COMPLETED
Nov 24th 2011 – Thur	Dublin	Maldron Hotel – Smithfield	COMPLETED
Oct 19th 2011 – Wed	Dublin	Maldron Hotel – Smithfield	COMPLETED
Sept 23rd 2011 – Fri	Dublin	Maldron Hotel – Smithfield	COMPLETED
July 18th 2011 – Mon	Dublin	Maldron Hotel – Smithfield	COMPLETED
June 28th 2011 – Tue	Dublin	Maldron Hotel – Smithfield	COMPLETED
May 28th 2011 – Sat	Law Society of Ireland Diploma in Civil Litigation – Mediation Module		(Private Course)
May 26th 2011 – Thur	Dublin	Maldron Hotel – Smithfield	COMPLETED
May 20th 2011 – Fri	Tipperary Bar Assoication		(Private Course)

It is a prerequisite of this course that you have completed the Introduction to Mediation Advocacy Training Course.

What you will Learn How to effectively communicate with your client and the Mediator The importance of Rapport & specific techniques to quickly gain it with all the parties Specific techniques Mediators use to assist parties to gain agreement What questions to ask to get to the needs & interests of your client How to be more in control of the Mediation Process and the importance of the advocates role   Course Details No. of Participants 6 – 21 max Course Times Registration 8:30pm Course 9:00 – 1:00pmCourse 2:00 – 6:00pm Course Dates & Venues Listed Below Cost €495 Entry Requirements Satisfactory completion of the Introduction to Mediation Advocacy Training Course CPD 10.0 Hrs Law Society (inc 25% active participation CPD bonus credit) 8.0 Hrs Bar Council of Ireland

“We have thought of peace as passive and war as the active way of living. The opposite is true. War is not the most strenuous life. It is a kind of rest cure compared to the task of reconciling our differences … From War to Peace is not from the strenuous to the easy existence; it is from the futile to the effective, from the stagnant to the active, from the destructive to the creative way of life … The world will be regenerated by the people who rise above these passive ways and heroically seek, by whatever hardship, by whatever toil, the methods by which people can agree.”Mary Parker Follett, 1918“Peace is not merely a distant goal that we seek but a means by which we arrive at that goal”Martin Luther King Jr.

Recently Minister Richard Bruton has spoken about efforts to be made to reduce the cost to the State of Medical Negligence claims. It will be months before the government announces new processes in this regard – he has suggested something modelled on PIAB. We’ll have to wait and see.

However, the matter has already been addressed to some extent in S.28 of the Draft Mediation and Conciliation Bill, 2010 by virtue of which it is likely that “Early Neutral Evaluation” will become an integral part of Personal Injury cases as soon as the Bill becomes enacted – sooner rather than later. In this regard Personal Injury specifically includes injuries arising from alleged Medical Negligence and the Explanatory Note to the Bill states that this process may assist in claims already in existence in which the State is represented by the State Claims Agency. Accordingly, people should be aware not only that this new development is coming but that it may well have an effect on cases already in being.

Some American States have already extended this ENE process to many, if not all, areas of civil litigation and it has even been incorporated into the Courts systems of some of them. It has evolved to mean different things. Just as there are many different ‘styles’ of mediation (directive or non-directive; caucus or non-caucus; evaluative or facilitative; etc.), and just as there are many forms of arbitration, so too there are many different things that happen under the general rubric of “neutral evaluation.” At its core, neutral evaluation is exactly what it says it is: a process in which a neutral third party examines the evidence and listens to the disputants’ positions, and then gives the parties his or her evaluation of the case. However, it can be much more than that too:  it can be an extraordinarily flexible, beneficial process, and in the hands of a skilled neutral evaluator and/or Mediator it can go way beyond someone simply hearing the facts of a case and then pegging a number or outcome to it.

The development of neutral evaluation as an ADR technique came about in response to a reality we have all been confronted with many times: one of the main reasons cases don’t settle sooner than they ultimately do is because someone – sometimes one of the parties or their non-legal advisers, sometimes a solicitor or barrister, or maybe an expert – has misunderstood or mis-evaluated the case. That leads to unrealistic ideas about the probable outcome which in turn leads to unnecessary stubbornness, which in turn leads to maddeningly slow process, eventual setting down for trial and finally, at the very last minute, efforts at settlement on the morning of the trial.

There is nothing worse than being told on the morning of a case that because it has taken up so much time and effort the costs are going to be such that you are going to come out with very little – even if fully successful in establishing (vindicating) your position in relation to the issue. Then, to add insult to injury, you are likely to have to endure an explanation that such total success/vindication is highly unlikely because …….. It can be equally difficult for a solicitor or barrister to have be the bearer of such news.

If only a person and his/her lawyers could have had some sort of ‘reality check’ earlier on in the litigation, they might not have become so enamored of their own mistaken notions about the value or viability of the case, and there might have been more real money available at the end to resolve it. Intervention is needed before everyone gets dug in.

With the recent advent of privately-conducted mediation the problem of getting to settlement too late in the game is beginning to be lessened somewhat, but only somewhat. There are several reasons – some legitimate and some not – why it’s often difficult to suggest or engage in mediation early in the life of a case. Sometimes the psychological barrier is too great to suggest mediation early on, or sometimes you really do need more discovery and analysis in order to understand the true value of the case.

At this early stage in the evolution of ADR processes one of the big problems with getting people to engage is a perceived stigma of weakness which some people (incorrectly) think is shown by a call to mediation. A call to your opponent to engage in Neutral Evaluation can actually be seen as a display of strength. If someone balks at engaging in mediation, as such, because they think they’ve got such a great case, then Neutral Evaluation can appeal to their vanity if it is pointed out to them that if they have such a great case, they should have no fear of laying it all out on the table in a neutral evaluation session. One could put it to them that, ‘If your case is so good, you can’t possibly have anything to hide, right?’ Then they are in the awkward position of indicating to you a fear or weakness about their case if they don’t agree to engage in this ADR process.

And unlike arbitration, neutral evaluation has none of the baggage of adjudication. It is a completely voluntary process, under the same terms as Mediation, from which no order, judgment, sanction or levy of costs or fees will happen, unless both/all of the parties themselves agree to such.

New Neutral Evaluation Service provided by Mediate Ireland

Mediate Ireland have introduced a new service specifically addressing the issues outlined above. The Neutral Evaluation Service provided by Mediate Ireland is cost effective, successful and is provided nationwide. A typical Neutral Evaluation last 2 hours with an experienced Evaluator.

Mediate Ireland have a panel of experienced Evaluators and further analysis of the Neutral Evaluation process will appear in later Newsletters. If you wish to avail of this service contact Mark Small on 052-6123711

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

June 20, 2011
Howard H. Irving, Ph.D

What do people in business do when they’re facing a crisis? They ask, “What’s the best practice to follow in a situation like this? What do successful companies do?”

Our society would benefit greatly if divorcing parents could be convinced to ask, “What’s the best practice now that our marriage is over? What have others done in our situation? What dangers should we avoid? What path should we take?”

Of course a marriage is not a business. Its end is more often marked by regret, anger, and revenge than by the ability to ask wise, logical questions. However, we in the West have had enough experience with divorce to know that there definitely is a best practice for divorcing parents to follow.

It’s called mediation, a voluntary process with an impartial third party, a family mediator. The mediator helps couples identify, clarify, and come to an agreement on the major issues between the parents for the sake of the children. Each parent retains a lawyer during this process, but the goal of everyone involved is to avoid the emotional and financial costs of pursuing divorce through the adversary court system.

I have mediated more than two thousand cases over the past three decades. I have learned that if the adversary system takes a bad situation and makes it worse, divorce mediation can take the same situation and make it “less bad” — and often even better.

It’s only natural that parents’ first instinct is to head down the path of finding fault, laying blame, competing for the children, and jockeying for the best financial outcome. Unfortunately, the adversary court system only feeds on the shock, hurt and fear couples feel when they know that their marriage is coming apart.

We are not being loving and considerate when we stand back and let couples find their own way out of the morass of their marriage. We need to step up and persuade parents to avoid the adversary system. We know the damage it wreaks on families. We must convince them to take a step back and consider what’s best for their children.

The premise of mediation is that the parents are partners in decision-making regarding their children in the weeks, months, and years following the divorce. Mediation does not deal with fault, find blame, give legal advice, or make decisions for others. In fact, ideally it begins by exploring the possibility that the couple can be reconciled.

We need to get across to divorcing couples what their children are in for if they take the adversary approach. The evidence is plentiful. Children are usually caught in the crossfire of their parents’ marital battles, becoming the chief casualties of the divorce. Parents often use them to heal their own bruised egos, or they vie for the children’s favor. The children are thus forced into a conflict of loyalties. More often than not the struggle wreaks havoc on their developing personalities.

The most devastating court battle is the custody proceeding. The judge, with his or her wide discretionary powers, becomes a referee between the warring parties. Experience has shown that the effects of court custody decisions do not so much terminate the dispute as give them a new form. The battle for custody becomes the battle for visitation rights.

The parent with custody feels the other parent’s behavior harms the children. He or she wants to prevent the other parent from seeing the children altogether. The cycle begins again. Old wounds are reopened and the parents and children return to court before another judge with yet another unresolved issue.

The continuing bitterness may result in one legal battle after another. One of my clients described the process as death by a thousand cuts.

The parties may become so paralyzed by their continuing struggle that they are unable to begin building new lives. In essence, the adversary system has led the parents to become litigation junkies with their respective lawyers helping supply them with ammunition.
Divorce mediation, in contrast, helps parents and the legal system to treat children not as assets to be divided but as innocents who must be protected, in every way possible, from the fallout of a marital breakup. In a study I conducted some years ago, I interviewed 53 family lawyers following their involvement with a mediation service. The overwhelming majority of lawyers felt that the mediation service was valuable in that it:

1. Helps avoid unnecessary litigation.
2. Better prepares the parties to understand the issues.
3. Allows the client to use the legal services more appropriately.
4. Reduces the client’s emotional turmoil.
5. Protects the children from being caught in the middle.

It’s amazing how much better things go when parents agree on one central principle – that every decision will be based on the question: “What’s best for our children?”

In a future article, I will be writing about how mediation can be used to create a shared parenting plan.

Howard H. Irving PhD. Professor, Family Mediator, Author, Children Come First: Mediation, Not Litigation When Marriage Ends.

View Original Article.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

June 24, 2011

CAROL COULTER Legal Affairs Editor

MEDIATION SHOULD be mandatory in cases of disputed wills where there are concerns about the vulnerability of the person who made the will, according to the president of the Law Society.

John Costello, speaking at the the inauguration of Solicitors for the Elderly Ireland, said the present system for challenging wills on the grounds of testamentary capacity was cumbersome and costly, and mediation was preferable.

He said a Law Society committee was working on guidelines for solicitors dealing with vulnerable people whose capacity may be an issue.

It should be mandatory that the same solicitor could not represent both sides in a property transaction involving a vulnerable person, he said.

He also urged the Government to publish the mental capacity Bill, which deals with such issues, and provide for Advanced Care Directives, where people threatened with incapacity can make provision for their future.

He said the Law Reform Commission had published valuable proposals on this.

Ms Justice Mary Laffoy also advocated the use of mediation when wills are contested and in other areas involving vulnerable people.

She said in her experience it could be worrying to see cases where it appeared undue influence was being exercised on elderly and vulnerable people.

Specialisation in the area of the rights and entitlements was important for lawyers, she said, and she welcomed the formation of an organisation that could engender the development of knowledge in the area.

Mary Condell, the first president of the organisation, said it would bring together solicitors and barristers who specialised in this area of work, and would provide education and training for those who wanted to do so.

It would also get information out to older people that they had rights, in particular the right to independent, impartial legal advice.

It would work with Government and voluntary agencies on developing policies to meet the needs of all adults who were at risk whether elderly or vulnerable, she told The Irish Times.

View Original Article.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

Past Articles

• Employers turn to mediation to resolve conflict
• Summary of the main points in the Draft Mediation bill 2010
• Mediation in Financial Disputes – Reducing your Financial Exposure
  

In short

Mediate Ireland provides training for the legal profession on how to act in Mediations – before, during and after.

Mediate Ireland is very experienced in providing mediation services in a number of key areas including Divorce/Separation, Commercial, Workplace/Employment

Newsletter – July 2011

The Advantages of Early Neutral Evaluation (ENE) in all types of Mediation

Recently Minister Richard Bruton has spoken about efforts to be made to reduce the cost to the State of Medical Negligence claims.

The development of neutral evaluation as an ADR technique came about in response to a reality we have all been confronted with many times: one of the main reasons cases don’t settle sooner than they ultimately do is because someone – sometimes one of the parties or their non-legal advisers, sometimes a solicitor or barrister, or maybe an expert – has misunderstood or mis-evaluated the case.
Read More…

Compulsory mediation urged by president of the Law Society

MEDIATION SHOULD be mandatory in cases of disputed wills where there are concerns about the vulnerability of the person who made the will, according to the president of the Law Society

John Costello, speaking at the the inauguration of Solicitors for the Elderly Ireland, said the present system for challenging wills on the grounds of testamentary capacity was cumbersome and costly, and mediation was preferable.
Read More..

Family Mediation: The Best Practice for Parents And Their Children When The Marriage Is Over

Our society would benefit greatly if divorcing parents could be convinced to ask, “What’s the best practice now that our marriage is over? What have others done in our situation? What dangers should we avoid? What path should we take?”

However, we have had enough experience with divorce to know that there definitely is a best practice for divorcing parents to follow, it’s called mediation, a voluntary process with an impartial third partyer.
Read More..

Introduction to Mediation Advocacy (CPD Training 6Hrs)

Final Few Places on July Course

The module that we have devised includes active participation, role play and runs over 5 hours starting at 2:30pm and running till 7:30pm. The cost of the course is €215 & 6 CPD points will be awarded. There has been overwhelming demand for this training, selling out very quickly as the course is limited to 12.
Find out more…..

Dublin – 18th July – BOOK NOW
Venue: Maldron Hotel – Smithfield (Four Courts)

“Efficent course and good value for insight into the mediation process” - Owen Hickey SC – Barrister-at-Law Senior Counsel

“Recommend this short concise course to anyone advising clients going into mediation” - Sinead Farrelly – (Solicitor) Early & Baldwin

“Well worth attending and useful in everyday practice” - Kate Craig – Partner, PJ Byrne & Co

“Very effective at imparting mediation skills, discovering what mediation means as a process and learned a lot about the process” - Sarah Scally – (Solicitor) Sarah R Scally & Co.

“A very Interesting introduction to Mediation, Mindsets & the lawyers role within the process” – Kellie Butler BL – Barrister-at-Law © 2010 Mediate Ireland, 1 Dillon Street, Clonmel, Co. Tipperary, IrelandTelephone – (052) 6123711 | Fax – (052) 6123717info@mediateireland.com ]]> http://mediateireland.com/mediation-newsletter-july-2011.html/feed 0 http://mediateireland.com/eu-mediation-regulations-law-ireland.html?utm_source=rss&utm_medium=rss&utm_campaign=eu-mediation-regulations-law-ireland http://mediateireland.com/eu-mediation-regulations-law-ireland.html#comments Mon, 30 May 2011 08:24:22 +0000 Mediate Ireland http://blog.mediateireland.com/?p=1282 May 30, 2011 - On the 5th May 2011 with very little publicity the Minister for Justice and Equality, Mr Alan Shatter signed new regulations, SI No. 209 of 2011 European Communities Mediation Regulations 2011, into Law. The latest SI specifically relates to the use of mediation in civil and commercial cross border disputes, and provides for a number of very important provisions, which are also part of the Draft Mediation Bill 2010. ...[Read More.....]]]>

On the 5^th May 2011 with very little publicity the Minister for Justice and Equality, Mr Alan Shatter signed new regulations, SI No. 209 of 2011 European Communities Mediation Regulations 2011, into Law. The new regulations took effect on the 18^th May 2011 and have given full effect to Directive 2008/52/EC (O.J. L 136, 24.05.2008, p.3) of the European Parliament and of the Council of 21st May 2008 on certain aspects of mediation in civil and commercial matters. These regulations come on the back of SI No. 502 of 2010 Rules Of The Superior Courts (Mediation And Conciliation) 2010, and show the governments resolve to make Mediation an Integral part of the Irish Legal system

The latest SI specifically relates to the use of mediation in civil and commercial cross border disputes, and provides for a number of very important provisions, which are also part of the Draft Mediation Bill 2010. These provisions include:

Recourse to mediation
The court can now invite the parties to attend a mediation or some form of mediation information session.

Confidentiality of mediation
A mediator shall not be compelled to give evidence in civil or commercial proceedings except in certain circumstances.

Enforceability of agreements resulting from mediation
There is now a new procedure whereby parties may apply to the Master of the High Court for an order making the agreement a rule of court and such an order shall be enforceable against the parties.

Effect of mediation on limitation and prescription periods
The time period beginning on the day the dispute was referred to Mediation and ending 30 days after the Mediation is disregarded for the purposes of any limitation period.

Mediation is now firmly on the radar of the government and will be a major consideration in any commercial, civil or family dispute. If you are interested in how Mediation will effect your practice, Mediate Ireland runs a ½ Day Training course (6 CPD Hrs – €215) “An Introduction to Mediation Advocacy”

Mediation Services

If you have a client or know someone who may benefit from the Mediation & Dispute Resolution Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is an afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

Law Society of Ireland Diploma in Civil Litigation – Mediation Module

Mediate Ireland has been chosen to deliver the Mediation Module for this years Law Society of Ireland, Diploma in Civil Litigation. The Mediation Module is due to be delivered on the 28th of May 2011.

Mark Small from Mediate Ireland commented “It is a great honour to deliver this module for the Law Society, and it shows how much Mediation is now becoming an integral part of the Civil Justice System”. This module is based on Mediate Irelands “Introduction to Advocacy Training Program”

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

Personnel Today

May 23, 2011
Laura Chamberlain

Half the organisations surveyed in XpertHR’s conflict management survey that have altered their conflict management approach in the last two years have introduced or made changes to their mediation procedures.

The survey also found that more than three-quarters (77.6%) of employers believe that mediation and other third-party interventions have the potential to reduce the number of tribunal claims.

Employers said that the most appropriate situations for using mediation were: dealing with relationship breakdowns between colleagues (39%) or between managers and employees (38%); perceived bullying or harassment (35%); and perceived discrimination (35%).

The survey of 190 employers found that the most common type of mediation service used was an external mediator on an ad hoc basis.

Rachel Suff, author of the report, commented: “Early and informal methods of conflict resolution, including independent third-party intervention such as mediation, are now a key aim of the Government’s vision for individual dispute resolution.

“Part of the attraction of mediation is that it is potentially quicker and cheaper than formal processes and can help preserve the employment relationship.”

Personnel Today announced this month that there will be a new innovation in dispute resolution category in the Personnel Today Awards 2011.

The new category has been included to reflect the growing importance of dispute resolution in the HR profession and follows the Government’s consultation on workplace disputes.

View the full findings of the conflict management survey on XpertHR

View Original Article.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

People Management

May 19, 2011
Rima Evans

View Original Article.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

Past Articles

• How to get the Best Result from a Mediation – Part 1
• Mediation in Medical Negligence Cases
• Mandatory Mediation Introduced in the UK for all Divorcing Couples

In short

Mediate Ireland will now provide training for the legal profession on how to act in Mediations – before, during and after.

Mediate Ireland is now providing mediation services in a number of key areas including Divorce/Separation, Commercial & Workplace/Employment

Newsletter - May 2011

How to get the Best Result from a Mediation – Part 2

In Part 2 of this article we look at why Confidentiality is the corner stone of Mediation, How Mediation is a Flexible User-friendly Format and why it is a great way to “Reality Check“ a clients position.

This article explores some of the techniques, which enable a successful One Day Mediation, Including:-Caucus Mediation, Body Language, Confidentially & The art of Peacemaking
Read More…

HR urged to spread message on mediation

The benefits of mediation in the workplace must be promoted beyond the HR profession if it is to be effectively utilised to resolve disputes, according to practitioners. “There needs to be a strong nudge from government to employers and employees to buy into the value of mediation.”
Read More..

Employers turn to mediation to resolve conflict

A UK  survey has found that more than three-quarters (77.6%) of employers believe that mediation and other third-party interventions have the potential to reduce the number of tribunal claims.

Employers said that the most appropriate situations for using mediation were: dealing with relationship breakdowns between colleagues (39%) or between managers and employees (38%); perceived bullying or harassment (35%); and perceived discrimination (35%).
Read More..

Introduction to Mediation Advocacy (CPD Training 6Hrs)

The module that we have devised includes active participation, role play and runs over 5 hours starting at 2:30pm and running till 7:30pm. The cost of the course is €215 & 6 CPD points will be awarded. There has been overwhelming demand for this training, selling out very quickly as the course is limited to 12.
Find out more…..

Dublin – 26th May – BOOK NOW
Venue: Maldron Hotel – Smithfield (Four Courts)

Dublin – 28th May – Private Course
Venue: Law Society – Dublin

Dublin – 27th June – BOOK NOW
Venue: Maldron Hotel – Smithfield (Four Courts)

Dublin – 18th July – BOOK NOW
Venue: Maldron Hotel – Smithfield (Four Courts)

“I really enjoyed this course & gained a lot from it that will be very beneficial in practice as a barrister” - Catherine McLoone BL – Barrister-at-Law

“Well worth attending and useful in everyday practice” - Kate Craig – Partner, PJ Byrne & Co

“Very effective at imparting mediation skills, discovering what mediation means as a process and learned a lot about the process” - Sarah Scally – (Solicitor) Sarah R Scally & Co.

“A very Interesting introduction to Mediation, Mindsets & the lawyers role within the process” – Kellie Butler BL – Barrister-at-Law © 2010 Mediate Ireland, 1 Dillon Street, Clonmel, Co. Tipperary, IrelandTelephone – (052) 6123711 | Fax – (052) 6123717info@mediateireland.com ]]> http://mediateireland.com/mediation-newsletter-may-2011.html/feed 0 http://mediateireland.com/best-results-from-a-mediation-part-2.html?utm_source=rss&utm_medium=rss&utm_campaign=best-results-from-a-mediation-part-2 http://mediateireland.com/best-results-from-a-mediation-part-2.html#comments Fri, 20 May 2011 09:25:32 +0000 Mediate Ireland http://blog.mediateireland.com/best-results-from-a-mediation-part-2.html May 20, 2011 - We can never over-emphasise both the importance and benefit of confidentiality in the process. By law and by contract - the Agreement to Mediate - a mediation is a settlement conference which forecloses later disclosure. Also, by the terms of the mediation agreement, the mediator, his/her notes, records, and work product cannot be subpoenaed for a later trial or deposition should the case not settle. Preserving absolute confidentiality is vital to the process. Likewise, mediation sessions are closed to all outsiders, including the press. This is not true, however, if the case is litigated in the courtroom. ...[Read More.....]]]>

In Part 2 of this article we look at why Confidentiality is the corner stone of Mediation, How Mediation is a Flexible User-friendly Format and why it is a great way to “Reality Check“ a clients position.

Confidentiality – The corner stone of Mediation

We can never over-emphasise both the importance and benefit of confidentiality in the process. By law and by contract – the Agreement to Mediate – a mediation is a settlement conference which forecloses later disclosure. Also, by the terms of the mediation agreement, the mediator, his/her notes, records, and work product cannot be subpoenaed for a later trial or deposition should the case not settle. Preserving absolute confidentiality is vital to the process. Likewise, mediation sessions are closed to all outsiders, including the press. This is not true, however, if the case is litigated in the courtroom

There is another aspect of confidentiality which is important to the success of the process. When the mediator meets in private caucus with each side, s/he can give assurance that particular matters raised and discussed will not be disclosed to the other side. This permits the parties to make settlement proposals, float figures, and suggest creative ways to reach resolution, knowing that the mediator will not disclose such to the other side. The mediator can take a proposal and discuss it with the other side as his/her own to see how the parties react. In this way, the party originating the proposal has not made a commitment to the idea and can give it further consideration.

In floating a settlement figure given by one of the parties, for example, the mediator can ask the other side whether they would consider it if the first party would consider it. In this way, the first party is not committing to the figure. If the other party knew that the figure came from its opponent, the opposing party likely would bid off the figure and not give consideration to accepting it. In other words, the mediator can “test the waters” without requiring commitments from either side.

Another important aspect of confidentiality is that a party in caucus can use the mediator as a sounding board to test his case. Getting a mediator’s reaction in confidence can be quite helpful to a party in evaluating the case. It can act as a reality check.

Mediation - A flexible user-friendly format

The user-friendly character of mediation lends itself to a very flexible format. In fact, the mediation process can be adapted to almost any contingency required in a particular case. There are no rules of evidence, established protocol, or precedent that must be followed. For example, if an expert witness is needed to verify a certain point or position, he can simply be called on and asked what his evidence/opinion is. A doctor, engineer or other expert might be called and asked for an opinion concerning a certain matter.

Mediation is an excellent forum for parties to vent and express their feelings. A mediator is quite willing to listen empathetically and, in essence, give the parties their day in court. When the parties have released their emotions, there is a decided change in their demeanor, and the mediation can become quite productive. Many people just want to be heard by someone.

Mediation is an excellent vehicle for helping the parties continue their relationship if this is important. In employment situations and business the parties may have to continue working together afterwards. Legal proceedings can destroy or undermine that relationship because of the nature of the courtroom. By bringing the parties together in mediation, where an effort is made to heal the relationship rather than just resolve a dispute, a difficult problem can be overcome and a healthier working relationship established. Employers, who are striving to comply with the law and avoid the antagonisms generated by litigation, welcome the opportunity. Some companies are including mediation clauses in their collective bargaining agreements and employment contracts. Parents who have separated need to be able to communicate about and in the best interests of their children – mediation can help hugely.

The mediator can help the parties craft creative settlements. Because any settlement entered is contractual, the parties can agree to any terms they wish as long as they do not violate public policy. An experienced mediator, sensitive to the needs of the parties, can help them craft a settlement that will accomplish much more than what a judge, jury, or arbitrator could do. For example, the parties might agree to an apology or a letter of commendation which it might not be possible for them to do publicly. The possibilities are limited only by the creativity of the parties.

A Great way to “Reality Check” a clients position

The mediator can help the solicitors and barristers get their clients under control when they have unreasonable expectations. Often the lawyers will request mediation because they are having difficulties with their clients. Because the mediator can ask the solicitor and barrister what the weaknesses are in the case, in private caucus, they are given an opportunity to discuss them in front of the client. Up to this time, the client might have refused to even consider weaknesses, but because the mediator is asking, the client is forced to listen. Likewise, the mediator can ask the lawyer in confidence what might happen in court in both the best and worst case scenarios. Again, the client is required to hear what the worst case is, and it may come as a shock. Certainly, it can be a reality check. As the mediation progresses, the mediator can reinforce the concerns that the solicitor or barrister has. With both having reservations about the case, most clients are willing to begin compromising and work to resolution.

The mediator can also help the lawyer in another way. By noting the fine work the solicitor is doing, if this is the case, the mediator can reinforce the solicitor’s position with the client. Many times clients do not appreciate how skilled and creative their barristers and solicitors are, and when this is pointed out by the mediator, they have a new appreciation for the way they are being represented. Realizing this, clients are more willing to listen to their legal representatives when asked to make that final compromise to settlement.

Finally, the mediator can help representatives by deflecting any criticism or anger that might be engendered as the mediation progresses. Rather than allowing the solicitor be criticized by the client, the mediator can act as the lightning rod so that the solicitor-client relationship is not undermined. This is important, because it is the solicitor or barrister who will generally get the client to make the final move to settle. If the lawyer-client relationship has been undermined, this will become more difficult.

These are just some of the particular advantages of Caucus Mediation. As the practice of Mediate Ireland has developed we have become ever-increasingly convinced that it is the most successful model particularly when considered in the context of our recommendations that the process works best when parties are represented and accompanied by their solicitors and/or barristers and that the process be by reference to a specific timeframe – usually by reference to one day.

Part 1 of this article looks at, Caucus Mediation, Body Language and The art of Peacemaking. CLICK HERE to read article

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

GIVEN under my Official Seal,
5 May 2011.

ALAN SHATTER,
Minister for Justice and Equality.

Explanatory note

Notice of the making of this Statutory Instrument was published in “Iris Oifigiúil” of 10th May, 2011.

At Mediate Ireland 90% of all mediations we have engaged in have taken only 1 Day. This comes as a surprise to many who feel that “the issues they have been dealing with for so long, can’t possibly be sorted out in such a short time”. All mediators at Mediate Ireland are trained in advanced, and in some cases unique, techniques in Mediation which accelerate the mediation process.

This article explores some of these techniques, which enable a successful One Day Mediation.

Caucus Mediation

Caucus mediation begins either with all the parties together in conference or in separate rooms from the start. We have found that separate rooms at the start of Family Mediations is particularly productive. Opening statements are made by the parties or their representatives after the mediator has introduced himself and the process. Thereafter the parties remain separate and the mediator then shuttles back and forth between them and conducts private sessions called “caucuses.” This caucusing continues until the case is settled, or if the case is not settled, on whether and how the process is to continue. Caucus Mediation is best for the avoidance of adversarial and confrontational methods of persuasion and allows the introduction of peacemaker techniques that can help the parties find not only resolution, but conciliation, peace, and healing. It is suggested that the mediator is more than a dispute resolver; s/he seeks to be a peacemaker and everything s/he does should lead to the establishment of peace and healing between the parties.

The whole process is designed to be a kinder, more user-friendly approach to resolution. It literally is the opposite of the courtroom trial and of adversarial “mediation”/settlement where the mediator/referee takes on the role of devil’s advocate. In both the courtroom and adversarial/settlement situation, the parties are fighting with each other to win. They are not on the same side seeking a common resolution that both can accept. In the courtroom, the goal is to impeach, discredit, and undermine the opponent to make him a loser. In peacemaking, the goal is to be supportive of the opponent to make him a winner so that there can be a winning result for both sides – there can be no mediated agreement unless both sides sign it. The courtroom battle, as well as the adversarial/settlement process, leaves all participants and legal representatives mentally bruised and scarred, whereas non-adversarial mediation permits the parties to find a sense of peace and closure, and, indeed, can facilitate a healing of the wounds.

The mediator-peacemaker is trained to be supportive and to work with both the parties and lawyers and not confront them or put them on the defensive. Instead of playing devil’s advocate, the peacemaker-mediator seeks to build rapport and trust with all concerned. When the parties feel the mediator is truly interested in them and in the resolution of the case on the fairest terms possible for all, it is far less difficult for them to compromise. It is this final compromise that closes the gap to resolution.

Body Language – What the parties are really saying

The mediator-peacemaker is trained in the art of resolving disputes. S/he learns to read body language and can identify whether a verbal “no” is really a silent “maybe” or a disguised “yes.” Family Mediation or Commercial Mediation is an intensive insight-oriented process, which can be developed through training and experience. The mediators who have been most successful are those who have developed and honed these insights to the point that they can successfully read the parties and handle any surprise or contingency.

Confidentially in the Caucus Process

Through the confidential caucus, at which the mediator can speak in confidence with each side, s/he is positioned to gain information about the case unavailable to a judge, jury, or arbitrator. S/he can ask each party and their solicitors and barristers what their weaknesses are in their case or the concerns they have about their case. The mediator can also ask each lawyer what he believes would happen in court in both the best and worst case scenarios. When both sides have answered these inquiries, the mediator has a unique perspective and understanding of the case. S/he is in a position to give guidance to a meaningful and fair settlement.

Generally, knowing that the information sought will be kept confidential from the other side, lawyers will discuss candidly their weaknesses and concerns and how they evaluate the case. The responses given are normally shorn of advocacy, rhetoric, and the emotional factors lawyers employ in front of judge, jury, or arbitrator (or client!). Through the process, the mediator can quickly get to the heart and real merits of the case.

The art of Peacemaking

The peacemaking process encourages a spirit of cooperation, which grows as the mediation progresses. This is the opposite of what occurs in the courtroom where the parties are adversaries. Rather than coming to the table with the intent of winning, the parties approach mediation with the goals of compromising and finding resolution. As the family or commercial mediation progresses, the parties and lawyers have a growing investment in terms of time and money in a successful outcome. Because of this investment that the parties have in the process and their expectancy of success, momentum is generated, which grows as the mediation progresses. Caught up in the momentum, the parties are encouraged to compromise further. Many times, because of the investment, the parties will settle on terms which they never would have considered when the mediation began. An experienced mediator will feel the momentum and recognize that a case will settle long before the parties recognize it.

An important advantage of mediation is that all parties, with or without lawyers, are present in the same building (though not necessarily in the same room) at the same time and for the same purpose. It is helpful for the mediator to be able to speak to each party and directly and convey messages or information back and forth between the participants. If a question is raised or a point made, the mediator can immediately go to the other caucus room for clarification and/or a response. There are no delays.

Moving towards Agreement

By communicating back and forth between the parties, the mediator is able to narrow the issues to those which will be determinative of the outcome of the case. At times a party will realize that a point, once considered significant, is no longer of such importance and that it must be re-evaluated. If a new point is raised, the mediator can weigh the reaction of the other side.

With multiple defendants or plaintiffs, there is simply no other way to have meaningful negotiations other than to have them all it the same place at the same time. Many times the mediator must piece together a settlement proposal with each party providing its input. To try to do this by telephone or by some other process is unrealistic. Too much time is consumed and momentum is lost.

This momentum has been generated by using the mediator’s training and experience in the creation of rapport enabling all sides to go beyond the issues as first presented by or on behalf of the parties and establish their real underlying interests and needs. This happens on the basis and in an atmosphere of absolute of absolute confidentiality and thus the process creates its own momentum.

The conclusion of this article next month will begin with further consideration of confidentiality.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

Past Articles

• Mandatory Mediation Introduced in the UK for all Divorcing Couples
• What are the main Methods / Styles of Mediation? – Part 1
• A Review of the Draft Mediation Bill – 2010

In short

Mediate Ireland will now provide training for the legal profession on how to act in Mediations – before, during and after.

Mediate Ireland is now providing mediation services in a number of key areas including Divorce/Separation, Commercial & Workplace/Employment

Newsletter - April 2011

How to get the Best Result from a Mediation – Part 1

At Mediate Ireland 90% of all mediations we are engaged in take only 1 Day. This comes as a surprise to many who feel that “the issues they have been dealing with for so long, can’t possible be sorted out in such a short time”.

This article explores some of the techniques, which enable a successful One Day Mediation, Including:-Caucus Mediation, Body Language, Confidentially & The art of Peacemaking
Read More…

Law Society of Ireland Diploma in Civil Litigation – Mediation Module

Mediate Ireland has been chosen to deliver the Mediation Module for this years Law Society of Ireland, Diploma in Civil Litigation. The Mediation Module is due to be delivered on the 28th of May 2011.

Mark Small from Mediate Ireland commented “It is a great honour to deliver this module for the Law Society, and it shows how much Mediation is now becoming an integral part of the Civil Justice System”. This module is based on Mediate Irelands “Introduction to Advocacy Training Program”
Read More..

Introduction to Mediation Advocacy (CPD Training 6Hrs)

The module that we have devised includes active participation, role play and runs over 5 hours starting at 2:30pm and running till 7:30pm. The cost of the course is €215 & 6 CPD points will be awarded. There has been overwhelming demand for this training, selling out very quickly as the course is limited to 12.
Find out more…..

Dublin – 28th April – BOOK NOW
Venue: Maldron Hotel – Smithfield (Four Courts)

Dublin – 26th May – BOOK NOW
Venue: Maldron Hotel – Smithfield (Four Courts)

“I really enjoyed this course & gained a lot from it that will be very beneficial in practice as a barrister” - Catherine McLoone BL – Barrister-at-Law

“Well worth attending and useful in everyday practice” - Kate Craig – Partner, PJ Byrne & Co

“Very effective at imparting mediation skills, discovering what mediation means as a process and learned a lot about the process” - Sarah Scally – (Solicitor) Sarah R Scally & Co.

“A very Interesting introduction to Mediation, Mindsets & the lawyers role within the process” – Kellie Butler BL – Barrister-at-Law © 2010 Mediate Ireland, 1 Dillon Street, Clonmel, Co. Tipperary, IrelandTelephone – (052) 6123711 | Fax – (052) 6123717info@mediateireland.com ]]> http://mediateireland.com/mediation-newsletter-april-2011.html/feed 3 http://mediateireland.com/families-elder-care-mediation.html?utm_source=rss&utm_medium=rss&utm_campaign=families-elder-care-mediation http://mediateireland.com/families-elder-care-mediation.html#comments Wed, 30 Mar 2011 07:59:49 +0000 Mediate Ireland http://blog.mediateireland.com/difficult_decisions_pushing_families_toward_elder_care_mediation-on-mediation.html Mar 30, 2011 - As people age, financial planning can take on new levels of complexity. On top of the usual questions about managing assets, families may have to decide who will control the purse strings, and when.Will the house be sold and who makes that decision? Will it have to be fixed up first? Where will those funds come from? Can the home be rented out? Who will manage it? What if the siblings disagree? Those questions are giving rise to the practice of elder care mediation.[Read More.....]]]>

Business First

March 18, 2011
Robert Celaschi

As people age, financial planning can take on new levels of complexity. On top of the usual questions about managing assets, families may have to decide who will control the purse strings, and when. That, in turn, could determine where a person will live and how well. If the parents lose some of their physical or mental strength, the kids may have to force the issue.

Bringing the kids into the equation can complicate decision-making. Putting assets into a trust and appointing one child as a trustee can simplify things, but it doesn’t erase the family dynamics.

Even a basic decision can mean a lot of questions. Say the parent needs to move out of the home. Will the house be sold and who makes that decision? Will it have to be fixed up first? Where will those funds come from? Can the home be rented out? Who will manage it? What if the siblings disagree?

Those questions are giving rise to the practice of elder care mediation. A study 10 years ago put a spotlight on the issue. Conflict Resolution Quarterly found about 40 percent of adult children caring for a parent had a conflict with a sibling, and many times it was because one had more responsibility than the other.

Parenting the parents

Picking the right person as trustee can be crucial. Craine recalled a family where the last parent died in 2001 and the oldest sister had been named trustee.

“She had this sibling stuff going on, so she decided she wasn’t going to make any distribution of any assets until she was good and ready,” Craine said.

Then came the attacks of Sept. 11, assets took a dive in value and attorneys finally had to get a court order to distribute what was left.

Some families engage the services of a geriatric care manager to coordinate financial issues. Some families turn to mediators to help them work out disputes.

Chris Scott of Capital Mediation Associates takes the approach of phoning family members ahead of time to see what they consider top priorities. As the conversations progress, new priorities emerge. If the parents still are in control of their finances, it can be a big hurdle to let the kids in on the details.

“The toughest part is for an adult child to say to mom or dad, ‘I’m not saying you shouldn’t continue to do it, but would you please show me where everything is just in case,’ ” Scott said.

Having a handle on parents’ finances can help kids know when they need to step in. Red flags include a change in spending behavior. Some older people will order items from catalogues or shopping shows just to interact with the delivery person.

“A person I know, his mother was spending thousands and thousands of dollars of products and sometimes she didn’t even open the packages,” said Marcia Wool, a certified geriatric care manager and owner of Golden Guidance LLC in New Albany.

Tough choices may mean taking away a credit card. People who have been independent, however, don’t like giving it up.

“They don’t want to face their own mortality, or the fact that they need help. They believe they still can manage,” Wool said.

Baby steps

Many times, the oldest child becomes the point person for dealing with parents, regardless of ability or location. The issue then becomes what information gets shared with the family, said Sandra Mendel Furman, owner of A Mature Solution family mediation services in Columbus.

Issues that might need to be mediated include whether mom should go to assisted living. But even taking a few baby steps can help a family get ready for problems that crop up as parents age.

“You don’t have to decide everything right away. You also have to make an informed decision,” Wool said.

One tool that can help manage the parental aging process is long-term care insurance. A good policy, sources said, can mean the difference between a nice assisted living home and a nursing home.

Robert Celaschi is a freelance writer.

View Original Article.

Mediation Services

If you have a client or know someone who may benefit from the Mediation & Dispute Resolution Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is an afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

Past Articles

• Mediate Ireland Launches new FREE Resource Site for Professionals interested in Mediation
• Family Mediation – A Better Approach. (Part 1)
• Mediation in Medical Negligence Cases. – (Part 1)

In short

Mediate Ireland will now provide training for the legal profession on how to act in Mediations – before, during and after.

Mediate Ireland is now providing mediation services in a number of key areas including Divorce/Separation, Commercial & Workplace/Employment

Newsletter - March 2011

What are the main Methods / Styles of Mediation? – Part 2

In our January Newsletter we outlined the names that are generally attributed to the different traditional methods or styles of mediation.

In this article we take a further look at how some other juristractions, like Mediation Council of Illinois &  Florida’s professional standards for mediators deal with the issue of varing styles of Mediation.
Read More…..

Mandatory Mediation Introduced in the UK for all Divorcing Couples

Divorcing couples will be referred to mediation to sort out most disputes before they are allowed to use the courts, the government has announced.

Justice Minister Jonathan Djanogly said mediation was “a quicker, cheaper and more amicable alternative” to the over-worked family courts. “Mediation already helps thousands of legally aided people across England and Wales every year, but I am concerned those funding their own court actions are missing out on the benefits it can bring.
Read More…..

Introduction to Mediation Advocacy (CPD Training 6Hrs)

The module that we have devised includes active participation, role play and runs over 5 hours starting at 2:30pm and running till 7:30pm. The cost of the course is €215 & 6 CPD points will be awarded. There has been overwhelming demand for this training, selling out very quickly as the course is limited to 12.
Find out more…..

Dublin – 28th April – BOOK NOW
Venue: Maldron Hotel – Smithfield (Four Courts)

 Dublin – 26th May – BOOK NOW
Venue: Maldron Hotel – Smithfield (Four Courts)

“I really enjoyed this course & gained a lot from it that will be very beneficial in practice as a barrister” - Catherine McLoone BL – Barrister-at-Law

“Well worth attending and useful in everyday practice” - Kate Craig – Partner, PJ Byrne & Co

“Very effective at imparting mediation skills, discovering what mediation means as a process and learned a lot about the process” - Sarah Scally – (Solicitor) Sarah R Scally & Co.

“A very Interesting introduction to Mediation, Mindsets & the lawyers role within the process” – Kellie Butler BL – Barrister © 2010 Mediate Ireland, 1 Dillon Street, Clonmel, Co. Tipperary, IrelandTelephone – (052) 6123711 | Fax – (052) 6123717info@mediateireland.com ]]> http://mediateireland.com/mediation-newsletter-march-2011.html/feed 0 http://mediateireland.com/what-is-mediation-styles-part2.html?utm_source=rss&utm_medium=rss&utm_campaign=what-is-mediation-styles-part2 http://mediateireland.com/what-is-mediation-styles-part2.html#comments Tue, 29 Mar 2011 10:39:41 +0000 Mediate Ireland http://blog.mediateireland.com/?p=736 Mar 29, 2011 - Most people think of the “Evaluative” and the “Facilitative” methods and some have studied the “Transformative” approach. We advocate “Concord” mediation as embodying aspects of the best practices of all of the other methods - always in the context of the particular and individual situation presented by the client and by reference to what the process should do for people and what they desire and expect from it. ...[Read More.....]]]>

In our January Newsletter we outlined the names that are generally attributed to the different traditional methods or styles of mediation. Most people think of the “Evaluative” and the “Facilitative” methods and some have studied the “Transformative” approach. We advocate “Concord” mediation as embodying aspects of the best practices of all of the other methods – always in the context of the particular and individual situation presented by the client and by reference to what the process should do for people and what they desire and expect from it.

We are trying to bring greater clarity about mediation and to the whole field of mediation. We do not allow ourselves to become hung-up on names and phrases that have arisen in the lexicon of mediation. Concord Mediation, as we practice it, allows and encapsulates whatever arises in the particular circumstances of a mediation. As stated our philosophy and standards have evolved from in-depth study and from practices that have worked in the past and that we believe to be most effective. It is all about what the mediation process should and can do for people and how it can best be done by reference to practices that best fit the client’s situation and their expectations.

Mediators tend to feel strongly about these three styles of mediation. Generally speaking organizations that train and accredit mediators and set standards for mediation – from national and state mediation organizations, and legislative and judicial mediation programs – are silent on this issue of method. Some prohibit evaluation, and a few require it. For example, the Mediation Council of Illinois – Best Interests of Children states: “While the mediator has a duty to be impartial, the mediator also has a responsibility to promote the best interests of the children and other persons who are unable to give voluntary, informed consent …….. If the mediator believes that any proposed agreement does not protect the best interests of the children, the mediator has a duty to inform the couple of his or her belief and its basis.” Mediate Ireland is very conscious of such a duty in its mediation of family law matters and other situations that involve children and people with disabilities.

Another example of these strong feelings is found in a review of Florida’s professional standards for mediators. The committee got stuck on the issue of evaluation in mediation. The then rules were “a mediator should not offer information that a mediator is not qualified to provide” and “a mediator should not offer an opinion as to how the court in which the case has been filed will resolve the dispute”. The committee came out with two options for a new standard on this issue: Option One would prohibit giving opinions except to point out possible outcomes of the case; Option Two states that the mediator could provide information and advice the mediator is qualified to provide, as long as the mediator does not violate mediator impartiality or the self-determination of the parties. After receiving comments on these two options, both were withdrawn and the committee tried again. The comments were many and strong. Eventually, the new rule was written to reflect Option Two.

This has been addressed in the Draft Mediation & Conciliation Bill, 2010 in that it provides a differentiation between mediation and conciliation and processes whereunder a more evaluative approach can be adopted by the mediator when and if the parties agree that the mediator should act as conciliator. The approach of Mediate Ireland is to adopt the Concord approach and if that evolves to a situation in which the parties agree to the mediator acting in a more evaluative way, as conciliator, then such agreement can be adopted.

A concern of people thinking of embarking on a mediation process to resolve their dispute, and of their solicitors and barristers, is that they do not know what they may get when they end up in a mediation setting. Some people feel that mediators ought to disclose prior to clients appearing in their offices, or at least prior to their committing to mediation, which style or styles they use. Other mediators want the flexibility to decide which approach to use once they understand the needs of the particular case. Mediate Ireland consider this flexibility to be of the utmost importance in that the evolution of any particular mediation will in itself dictate the process that will be appropriate. The establishment of a good relationship between the mediator, the person in dispute and their representatives, under Concord principles will serve as its own guide as to which of the established processes emerges as most appropriate in the particular case.

We believe these styles are guideposts rather than distinct differences in the evolution of any given mediation – from least interventionist to most interventionist. Most mediators use some facilitative and some evaluative techniques, based on individual skills, experience and predilections and the needs of a particular case. We have found that the more “boxed in” a mediation becomes – like where perceived legal information or positions are taken too seriously and where the whole process is perceived as being either evaluative or facilitative – the less importance is given to possible resolutions coming from the parties themselves. We focus strongly on what the parties say and how they say it; what their interests are as opposed to the stated issue; what their real needs are – so that possible resolutions coming from them are always highlighted. Such resolution coming from the parties themselves are always much more valuable, deeper and provide the basis of a more lasting solution. Concord Mediation as used by Mediate Ireland mixes the various techniques, rather than focusing on any one of them, so that the resolution of the dispute can evolve in its own time and way with facilitative, evaluative and transformative being interwoven in the process as it develops.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

BBC News

23 February 2011

Divorcing couples will be referred to mediation to sort out most disputes before they are allowed to use the courts, the government has announced.

Justice Minister Jonathan Djanogly said mediation was “a quicker, cheaper and more amicable alternative” to the over-worked family courts.

The measures for England and Wales, focused on child custody and financial disputes, come into force on 6 April.

Domestic violence and child protection cases will still go to court.

Mr Djanogly said: “Nearly every time I ask someone if their stressful divorce battle through the courts was worth it, their answer is ‘no’.

“Mediation already helps thousands of legally aided people across England and Wales every year, but I am concerned those funding their own court actions are missing out on the benefits it can bring.

“Now everyone will have the opportunity to see if it could be a better solution than going straight to court.”

The minister told BBC Radio 4′s Today programme statistics suggested that more than two-thirds of couples who took up mediation were “satisfied with the results”.

“It gives people the opportunity to take their own futures in their own hands.”

Under the change, anyone wanting to use the courts will have to undergo a compulsory mediation assessment session first, which could cost some couples up to £140.

If mediation is not a workable option, for example one party refuses to take part in it, the case can proceed to court.

However, the government is proposing to cut legal aid for many separating couples and that means that if they cannot mediate after their compulsory assessment, they will have to pay for legal advice and court representation.

Some lawyers have argued that will amount to a denial of access to justice.

And the Law Society, which represents solicitors in England and Wales, said it questioned whether mediation would always be an appropriate way to decide arguments.

President Linda Lee said: “As a matter of course any lawyer aims for an agreed solution through negotiation because going to court is stressful and expensive. This is not always possible and, in some cases, the court is the only appropriate way of resolving the problems.

“The government is creating a myth that mediation is a panacea in order to justify cuts to legal aid which will take areas such as this, where people desperately need advice out of scope.”

A Ministry of Justice spokesman said the courts should not get involved in varying parental contact days or other minor disputes.

The ministry said 137,000 divorce cases were dealt with in 2009, up by 16%.

The cost per client of mediation is £535, compared with £2,823 for court costs and the National Audit Office also found mediation was quicker – 110 days, compared with 435 days for court cases.

The move does not relate to Scotland or Northern Ireland.

‘Tremendous strain’

However, a Scottish government spokeswoman said: “In Scotland we encourage the use of mediation in family cases when it is appropriate and safe to do so.

“There is already provision in court rules in Scotland for a sheriff to refer matters relating to parental responsibilities and rights to a mediator.”

Last year David Norgrove, who chairs a Whitehall review into the issue, said there was a “tremendous strain” on the system which was “really intolerable” for the children of divorced parents.

Justice Secretary Kenneth Clarke recently announced plans to scrap civil legal aid for a range of cases.

Mr Djanogly pointed out that the legal aid bill in England and Wales – £2bn a year – was far higher than in most other countries.

He said: “Our proposals aim to radically reform the system and encourage people to take advantage of the most appropriate sources of help, advice or routes to resolution – which will not always involve the expense of lawyers or courts.”

View Original Article.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

When you engage in the Mediation process there are 3 main Methods / Styles of mediation that you can expect a mediator to use, namely “Evaluative”, “Facilitative” & “Concord”. In this short article we are going to briefly look at each style.

Ever increasing interest in the whole area and process of Mediation accentuates the lack of clarity of understanding of what mediation is all about and how it works. Is it – as we have asked before – merely another legalistic layer in the litigation process, at one extreme, or, at the other, a type of counseling of parties to assist them in resolving their dispute. The answer is that, while it can be either, it usually lies between these extremes. Textbooks seek to define Mediation by reference to what is called “Evaluative” on the one hand and “Facilitative” on the other. Such attempts at definition limit the perception and thus the effectiveness and the possibilities of the process. Efforts at definition or codification often have the effect of calcifying rather than clarifying. “Transformative” is another term that people have used to try to give the meaning of what it is all about and have sought to define this in terms that it allows the disputing parties themselves to agree upon a resolution process they design themselves.

At Mediate Ireland we subscribe to all of the processes that might best lead to resolution of disputes in the context of how the particular dispute is presented to us. We do not get involved in debate or argument as to which method is “best” or what is the “right way” (or, the “wrong way”) of mediating. Our philosophy and standards have evolved from in-depth study and from practices that have worked in the past and that we believe to be most effective. It also highlights what we believe the mediation process should do for people, how it can be done and why going through this process is a good idea – this will always be by reference to practices that best fit the clients’ situation and their expectations for dispute resolution. This is called “concord” mediation which comes closest to defining processes that fit with our philosophy and allow full consideration of clients’ situation and expectations.

You want mediation to have the effect of your dispute being resolved quickly, cost-effectively and successfully. “Concord” Mediation seeks to satisfy this need in the context of its philosophy and your situation.

Evaluative Mediation

Evaluative Mediation is often thought of as being more “hands on” in terms of the mediator suggesting feasible outcomes and actively trying to bring the parties to a resolution. An unskilled evaluative mediator runs the risk of just telling people what to do and calling it mediation. Mediation must avoid becoming adjudication, arbitration or glorified legal settlement. The draft Mediation & Conciliation Bill, 2010 may have the effect of a perception arising that Mediation will be “forced” because Judges and County Registrars will be able to order it in certain circumstances. This may lead to an idea that there will be a new market around solving disputes; there will – and the new market will need new tools. The old tools used in litigation and legal settlement will not work. Mediation is not adjudication.

Facilitative Mediation

The general perception of Facilitative mediation is the Mediator is focused on facilitating the disputing parties in coming to a resolution on their own. However, the fact of someone calling themselves a facilitative mediator doesn’t automatically mean that they are helping someone. Mediation must avoid becoming counseling through over-zealous facilitation. When a mediator perceives a need or desire for counseling as an alternative he or she should immediately discuss and recommend it to the parties and bring the mediation to a conclusion. Mediation is not counseling.

Many models of mediation adopted presuppose that the process is likely to take a number of mediation sessions spread over a period of weeks or months. We do not say that this is right or wrong, in fact on the face of many disputes it would seem to make eminent good sense. However, it can very open-ended and provide parties with an excuse not to seriously face the issues. It is time consuming and, ergo, costly.

Evaluative mediators can at times be guilty of mischaracterizing the work of facilitative mediators and vice versa – there is tremendous worth and value in both approaches and all need to do better at recognizing the value that different styles bring. Concord mediation seeks to emphasise the value or values, from wherever they come that can be matched with the interests of well-informed participants.

Concord Mediation

Concord Mediation fully subscribes to the fact that the best resolution is one that the parties can easily sign up to in terms of it being “their own” but also recognizes that we have a role in suggesting feasible outcomes and helping parties to consider options that might not otherwise have arisen. Mediate Ireland, adopting the concord approach comes from a position that most disputes, not all, can be resolved in a short period. A single day is our point of reference – but always making due allowance that it may take a bit longer, or even be concluded within a shorter period of hours. Concord Mediation seeks to bring the best practices of the evaluative, facilitative and transformative methods into a structured process that can be complied with and followed throughout such a specific time period. Thus can resolution be achieved very quickly and cost effectively.

The philosophy underpinning concord mediation emphasises key principles of a mediator’s mediation practice standards. These practices are usually ones that have worked in the past and that the mediator believes to be most effective. Such principles include: participant empowerment; confidentiality; effectiveness; neutrality; trust.

They also highlight what the mediator believes the mediation process should do for people, how it can be done and why going through this process is a good idea.

Our key principle is peacemaking: our methods permit the mediator to work with the parties, solicitors and counsel in private confidential settings, which facilitate building rapport and trust—the keystones of peacemaking. We seek to open the doors to conciliation, peace, and healing. A mediation has failed if the parties, although reaching settlement, walk away angry and feeling abused.

Concord mediation is inclusive of the best elements of evaluative, facilitative and transformational mediation with due regard to people’s need for quick and cost-effective methods all within a context of successful resolution. 

Part 2 of this article will address other key principles and the preference for what is known as caucus mediation that has evolved from our own experience and success

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

Over the last year Mediate Ireland has written a significant number of articles on mediation, as well as highlighting articles on mediation in the media and other sources. We have decided to make this valuable resource available to the public in an easily searchable site.

Specific Categories on the site include:-
Commercial/Financial • Family • Medical • Employment/Workplace • Legal • Legislation

We hope you find this valuable resource helpful and welcome any comments.

• The practical aspects for Lawyers of considering Mediation as a means of resolving client issues.
• How to go about suggesting it to clients and professionals representing the other parties.
• How to prepare for it and how to actually represent your client throughout the process. Effectively.
• How to act in your client’s best interests while also signing up to a process designed to resolve/settle the issues.
• Provide an opportunity to be part of 2 role play mediations.

Past Articles

• How Workplace / Employment Mediation works in practice
• Chief Justice calls on state to promote alternative to litigation
• Mediation in Medical Negligence Cases. – Part 2

In short

Mediate Ireland will now provide training for the legal profession on how to act in Mediations – before, during and after.

Mediate Ireland is now providing mediation services in a number of key areas including Divorce/Separation, Commercial & Workplace/Employment

Newsletter – January 2011

What are the main Methods / Styles of Mediation?

When you engage in the Mediation process there are 3 main Methods / Styles of mediation that you can expect a mediator to use, namely “Evaluative”, “Facilitative” & “Concord”. In this short article we are going to briefly look at each style.
Read More…..

Mediate Ireland Launches new FREE Resource Site for Professionals interested in Mediation

Over the last year Mediate Ireland has written a significant number of articles on mediation, as well as highlighting articles on mediation in the media and other sources. We have decided to make this valuable resource available to the public in an easily searchable site.

Specific Categories on the site include:-
Commercial/Financial • Family • Medical • Employment/Workplace • Legal • Legislation

We hope you find this valuable resource helpful and welcome any comments.
Click Here to Access Site…..

Introduction to Mediation Advocacy (CPD Training 6Hrs)

The module that we have devised includes active participation, role play and runs over 5 hours starting at 2:30pm and running till 7:30pm. The cost of the course is €215 & 6 CPD points will be awarded. There has been overwhelming demand for this training, selling out very quickly as the course is limited to 12, the initial dates for the early part of 2011 are:-

Waterford – 10th Feb- BOOK NOW
Venue: Waterford Marina Hotel

Dublin – 17th Feb- BOOK NOW
Venue: Maldron Hotel – Smithfield (Four Courts)

Cork/Limerick – 24th Feb- BOOK NOW
Venue: Charleville Park Hotel

Dublin – 3rd Mar- BOOK NOW
Venue: Maldron Hotel – Smithfield (Four Courts)

“I really enjoyed this course & gained a lot from it that will be very beneficial in practice as a barrister” – Catherine McLoone BL – Barrister-at-Law

“Well worth attending and useful in everyday practice” – Kate Craig – Partner, PJ Byrne & Co

Find out more….. © 2010 Mediate Ireland, 1 Dillon Street, Clonmel, Co. Tipperary, Ireland
Telephone – (052) 6123711 | Fax – (052) 6123717
info@mediateireland.com ]]> http://mediateireland.com/mediation-newsletter-january-2011.html/feed 0 http://mediateireland.com/progress-commercial-mediation-family-mediation.html?utm_source=rss&utm_medium=rss&utm_campaign=progress-commercial-mediation-family-mediation http://mediateireland.com/progress-commercial-mediation-family-mediation.html#comments Mon, 13 Dec 2010 13:02:54 +0000 Mediate Ireland http://blog.mediateireland.com/?p=23 Dec 13, 2010 - 2010 may well come to be viewed as a watershed year in the positive evolution of the whole process of dispute resolution. The Draft MEDIATION AND CONCILIATION BILL published on 16TH November by the Law Reform Commission in conjunction with the Commission’s Report on “ALTERNATIVE DISPUTE RESOLUTION: MEDIATION AND CONCILIATION” provides definition and clears the way for the enactment of progressive legislation. The fact is that successful mediation is a highly skilled independent profession in its own right and requires training, experiential learning, and a particular set of skills. ...[Read More.....]]]>

2010 may well come to be viewed as a watershed year in the positive evolution of the whole process of dispute resolution. The Draft MEDIATION AND CONCILIATION BILL published on 16TH November  by the Law Reform Commission in conjunction with the Commission’s Report on “ALTERNATIVE DISPUTE RESOLUTION: MEDIATION AND CONCILIATION” provides definition and clears the way for the enactment of progressive legislation. It may not be an exaggeration to think of this as one small step in civil procedure, one giant leap for civilization with due credit to Neil Armstrong’s “one small step for man, one giant leap for mankind”.

Heretofore, there has been a lack of definition of Mediation and Conciliation – everybody seemed to have an idea based on some preconception that lay somewhere between a form of counselling at one extreme and just another procedural/legal layer of Bureaucracy at the other. The fact is that successful mediation is a highly skilled independent profession in its own right and requires training, experiential learning, and a particular set of skills. It has now been formally defined in the Bill as:

Mediation: “a facilitative and confidential structured process in which the parties attempt by themselves, on a voluntary basis, to reach a mutually acceptable agreement to resolve their dispute with the assistance of an independent third party, called a Mediator.“

Conciliation goes further and means

“such a process in which the independent third party, called a Conciliator, actively assists the parties to reach, on a voluntary basis, a mutually acceptable agreement.”

A brief synopsis of the main provisions of the Bill is contained on our website under “Articles and Resources – November 2010” and it is not intended for this article to be merely repetitive of the contents thereof. Rather, having delivered thirteen courses to Solicitors and Barristers during the past few months it is intended to very briefly highlight a few of the more important questions that have emerged.

When Should Mediation be Suggested?

Mediation is not a suitable procedure for settling disputes in all cases. Where deliberate bad-faith, illegality, fraud or danger to children is involved, mediation, which requires good faith and the cooperation of both sides – at least towards finding some resolution, is unlikely to be appropriate. Similarly, where a party is certain that it has a clear-cut case, or where the objective of the parties or one of them is to obtain a neutral opinion on a question of genuine difference, to establish a precedent or to be vindicated publicly on an issue in dispute, mediation may not be the appropriate procedure.

On the other hand, mediation is hugely attractive where any of the following are important priorities of either or both of the parties:

• minimizing the cost-exposure entailed in settling the dispute;
• the maintenance of control over the dispute-settlement process;
• a speedy settlement;
• the maintenance of confidentiality concerning the dispute;
• the preservation or development of an underlying relationship between the parties to the dispute.

The last-mentioned priority, in particular, makes mediation especially suitable where the dispute occurs between parties to a continuing relationship, such as on-going employment, landlord and tenant, licensing arrangements, distribution agreements, various joint contractual situations – since, as mentioned above, mediation provides an opportunity for finding a solution by reference also to business interests and not just to the strict legal rights and obligations of the parties. Needless to say, the best possible on-going relationship between separating spouses, in the best interests of their children, can be achieved much more successfully in mediation than in litigation or even through legal settlement.

Other  advantages can be considered:

• Speedy Resolution  
• Efficient hearings instead of long frequently delayed court proceedings.
• Flexibility
• Ensure that unique needs and interests are addressed
• Economy  
• Reliability
• Mediation is better suited than court to accurately assess many issues
• Informality
• Parties can speak candidly, without fear of intimidation
• Privacy & Confidentiality
• No public exposure or damaged reputations
• Expertise
• Choose a mediator with proven experience
• Finality
• Control over Uncertainty
• Avoidance of “surprise” in Court

• The process promotes communication and cooperation.
• It allows the parties, not the court, to make decisions affecting their future.
• It promotes positive future relationships by reducing conflict.
• It is confidential and private. There is no public disclosure of personal problems or finances.

Safety Belts.

The overwhelming reaction to the increased awareness of Mediation is that it is “a good thing” – a bit like the attitude of those of us who were around in 1971 when cars first had to have front seat safety belts fitted: eventually, years later, we had to use them and the usage was extended to the rest of the vehicle. Countless lives have been preserved. Hopefully we will remember 2010 as the year in which we became prepared to use the vehicle of Mediation to resolve disputes quickly, cost-effectively, successfully, ensuring the maintenance of necessary on-going relationships  – a leap for civilization.

The Mediation Bill and the other aspects of mediation are discussed in detail at our Introductory Training courses in Mediation Advocacy. For details on this and other courses [Click Here].

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

November 16, 2010

CAROL COULTER Legal Affairs Editor

The use of alternative dispute resolution, as an alternative to litigation in the courts, must be actively promoted by the State so that both professionals and the public generally are informed as to its effectiveness, according to the Chief Justice.

Mr Justice John Murray was speaking at the launch of two reports of the Law Reform Commission tonight, one on alternative dispute resolution, mediation and conciliation in particular, and the other proposing a single new Bill to regulate the conduct of court proceedings.

He said that in parallel with promoting ADR the State should take the necessary measures for the establishment of an official register of approved mediators, as many other states have done.

The report follows a Consultation Paper over a year ago and an intensive period of consultation leading to the publication of the final report, which includes a Draft Mediation and Conciliation Bill.

The commission does not regard ADR as a panacea, and points out that not all mediations or conciliations (the difference is based on whether the third party facilitator makes proposals or not) end in a settlement. Where they do not, costs may actually increase as the parties bear the cost of both mediation and litigation.

However, it also points to research which showed that mediation could, in some instances, reduce legal costs by up to 85 per cent.

It also points out that not all cases are suitable for mediation, and those which are not include where illegality is alleged, where a significant point of law is involved or where a large number of people could be affected.

The main recommendation in the report is that the Government enact a Mediation and Conciliation Bill, a draft of which is appended to the report.

This would contain clear definitions of what is meant by the terms mediation and conciliation, and set out the key principles of both: they are voluntary; the parties control the process; the confidentiality of the process is preserved and the quality must be assured by the regulation of those offering mediation and conciliation services.

This is to be achieved by self-regulation by their professional bodies, along with a statutory Code of Practice, based on accepted international standards and training requirements.

Mediation and conciliation can either be initiated by the parties or suggested by a court after proceedings have begun, when the proceedings will be adjourned to permit it. In the case of family law, the report recommends that no family law proceedings can begin until the parties have attended an information session on mediation, though it acknowledges that people cannot be compelled to engage in mediation. In medical negligence cases, an apology as part of a mediated settlement should not be taken as an acknowledgement of liability.

Mediated settlements should be made binding by being ruled by the court. The parties should, in general, bear the cost of mediation, it states.

The report also recommends that Government departments and State bodies make an “ADR pledge”, under which they would be required to attempt mediation or conciliation in appropriate cases before initiating court proceedings.

In another report the Law Reform Commission recommends the enactment of a new Courts Bill to replace 240 separate pieces of legislation dealing with the courts and mechanics of the administration of justice, many of which date back to the 19th century. This Bill includes provisions for integrating alternative dispute resolution processes into legal proceedings.

It urges consistency in the language used in the drafting of Rules of Court, and recommends the use of plain language. Differences among the procedures and terms used in different courts should be avoided.

The proposals also include the increase of the jurisdiction of the different courts in civil matters, so that the District Court can deal with matters worth €7,500 and the Circuit Court with matters up to €100,000, apart from personal injuries, which will be limited to €50,000.

They include provision for much more judicial control of civil proceedings through case management, so that the issues between the parties are identified at an early stage and prioritised or sequenced.

View Original Article.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

Past Articles

• Draft Mediation Bill Published
• Family Mediation – A Better Approach.
  
• Mediation in Medical Negligence Cases.
  

In short

Mediate Ireland will now provide training for the legal profession on how to act in Mediations – before, during and after.

Mediate Ireland is now providing mediation services in a number of key areas including Divorce/Separation, Commercial & Workplace/Employment

Newsletter – December 2010

2010 – A Year of Progress for Mediation

2010 may well come to be viewed as a watershed year in the positive evolution of the whole process of dispute resolution. Clarity has now been given to the position of Mediation in the Legal System. Heretofore, there has been a lack of definition of Mediation and Conciliation – everybody seemed to have an idea based on some preconception.
Read More…..

Mediation could save State €200m

UP TO €200 million could ultimately be saved by the use of mediation instead of litigation by State bodies , according to a study of the State’s legal spend.
Read More…..

New Mediation Training Courses for 2011

Due to demand and requests from trainees during the last year, Mediate Ireland has decided to expand the training programs provided in the coming year. We will continue to run our very successful “Introduction to Mediation Advocacy” CPD training throughout the year.
In addition we have now developed an “Advanced Mediation Advocacy” CPD training. This takes the ideas and concepts learnt during the Introduction Course and develops them in much greater depth. This course will give Lawyers advanced skills needed to advocate for their clients in a Mediation, which is very different from a Litigation environment.

For Lawyers who wish to become Mediators we have developed a “Mediator Training Program” which we believe is unique in the marketplace. It will cover, for example the psychology of getting parties to agree, look at the many different forms that a mediation session can take and an in-depth analysis of Mediate’s Ireland unique approach to Mediation which has proven so successful.
To find out more….. © 2010 Mediate Ireland, 1 Dillon Street, Clonmel, Co. Tipperary, Ireland
Telephone – (052) 6123711 | Fax – (052) 6123717
info@mediateireland.com ]]> http://mediateireland.com/mediation-newsletter-december-2010.html/feed 0 http://mediateireland.com/control-your-customer-dispute-mediation-litigation-lawsuit.html?utm_source=rss&utm_medium=rss&utm_campaign=control-your-customer-dispute-mediation-litigation-lawsuit http://mediateireland.com/control-your-customer-dispute-mediation-litigation-lawsuit.html#comments Sat, 13 Nov 2010 15:54:35 +0000 Mediate Ireland http://blog.mediateireland.com/?p=168 Nov 13, 2010 - You knew there was a problem. You did your best to sort it out but now your customer has sent that formal letter telling you they intend to sue. While litigation is a process aimed at winning in court, mediation is aimed at finding a settlement. The mediator is an independent intermediary whose role is to help both parties find an acceptable solution. Mediation is confidential, both sides agree to say nothing in public about what happens. ...[Read More.....]]]> Director of Finance online

28 May 2010
James Savory

You knew there was a problem. You did your best to sort it out but now your customer has sent that formal letter telling you they intend to sue.

What happens next?

Until this point, the discussion was about their needs and your inclination or ability to offer solutions. Now it has taken a turn for the worse and become about rights.

This change is significant.  You could both get sucked into a war of litigation, building a case to impress a judge and becoming entrenched in your views about the strengths of your arguments.  Your next step is a proper evaluation of your position should you end up in court, and for this you need some legal input.  But remember your lawyers think in terms of ending in court but you just want out – as soon as possible, but not at any cost.

They will tell you that part of their role is negotiating a settlement.  But rarely do lawyers go beyond stressing the strength of their client’s case and trying to find some middle ground between zero and the amount claimed that both sides can agree on. 

Mediation as a business tool

The alternative is mediation.  While litigation is a process aimed at winning in court, mediation is aimed at finding a settlement.  The mediator is an independent intermediary whose role is to help both parties find an acceptable solution.

Mediation is confidential.  Both sides agree to say nothing in public about what happens. Each side can also have private conversations with the mediator and restrict what is reported to the other side.  And nothing can become evidence in court just by being revealed during the mediation – so to some extent the discussions between the parties can be frank too.

Frequently litigation starts because the aggrieved side feels their interests are not being addressed. Paradoxically, what a court can order is sometimes hardly better. Yet litigation can become the end in itself.  Mediation allows the talk about true interests to continue.

A mediator will challenge each party privately over the strength of its case and the costs of litigating.  This is vital.  It is easy to start believing your own publicity and it does you no good.  What could be worse than ending up in court and finding that you had turned down a better offer than the court awards you.  Yet a recent study in the US of several thousand trials where there had been settlement offers found that 60% of claimants had done just that.

Finally, the mediation meeting will be between the decision-makers.  There will be no hiding behind “I will have to talk to Mr. Big.”  Mr. Big, or at least someone with authority to settle, will be there.

Conclusion

Once the discussion about rights starts you need input from a litigation expert.  But you can insist starting mediation early too.  Do not be put off by ‘not yet ready’ or ‘suggesting mediation is a sign of weakness’.  As soon as you have a reasonable idea of the likely outcome, you are ready.  You make business decisions every day with the information that is then available.  If you waited until you knew everything you would do nothing.  And what is weak about grown-ups recognising they have a problem and looking for a way out?  Settling a dispute is another business decision, and you have most to gain by doing it early.

View Original Article.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

The Irish Times

September 16, 2010
CAROL COULTER Legal Affairs Editor

LEGAL AID BOARD CONFERENCE: THE GOVERNMENT should foster and promote a professional mediation service and alter the perception of the courts as the first and only resort for dispute resolution, the Chief Justice has said.

Mr Justice John Murray told the 30th anniversary conference of the Legal Aid Board that this would not require major expenditure, and would reduce the overall cost of dispute resolution.

He said it was particularly appropriate in family law given that litigation can exacerbate the existing difficulties arising from a breakdown in family relationships.

“Given the State’s recognition of the family as a social unit of fundamental importance in society, it is essential that it ensures that there are systems and resources in place to address and resolve the serious issues to which family breakdowns so often give rise,” he said. “Mediation in particular is a vital tool in addressing family disputes, particularly where the welfare and future of children is at stake.”

He pointed to UK research showing the cost in legal aid fees of mediating family disputes was half that of litigating them. Given the pressure on Legal Aid Board and court resources, the need to encourage and invest in use of alternative dispute resolution (ADR) as a primary option for citizens where it can be effective has never been more pressing, he said.

Yet mediation and other forms of ADR remain on the margins of family law and civil law generally, and this would continue unless the State began to foster a culture of ADR with vigour and purpose.

President McAleese also urged greater use of ADR to resolve legal issues in a more humane way.

Legal Aid Board chairwoman Anne Colley said the cost associated with providing legal aid could be more than offset by its prevention of further problems that imposed a heavier cost on society.

She pointed to research in other jurisdictions which showed the business case for legal aid. Research here and in other jurisdictions showed those with legal problems often reported adverse consequences including ill-health, stress-related problems, loss of income or employment, violence or damage to property, breakdown of relationships, or loss of one’s home.

Ministry of Justice economists in the UK estimated that, over a three-and-a-half-year period, unresolved law-related problems cost individuals and the public purse £13 billion (€15.6 billion).

Other UK research showed savings could range from £2.34 in the area of housing for every £1 spent on legal aid to £8.80 in the area of benefits.

“It is clear that failure to resolve the more serious problems in a speedy and equitable manner creates considerable adverse consequences both for the individuals involved, their families, their working and social lives and ultimately the State,” Ms Colley said.

In the future, she said, there would be a move in appropriate cases away from the adversarial court environment towards ADR.

View Original Article.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

The inexorable march of Mediation becoming an integral part of all Civil Proceedings was greatly accelerated with the publication of the draft MEDIATION AND CONCILIATION BILL, 2010 yesterday, 16th November 2010. The Bill was published with the Law Reform Commission report entitled “Alternative Dispute Resolution: Mediation and Conciliation”.

A comprehensive analysis of both the Report and the Bill will be published by Mediate Ireland in due course and will be provided at our upcoming Introductory Training courses in Advocacy.

The preamble to the Bill says that it is

• to facilitate the settlement of Civil and Commercial matters …..
• to set out the principles applicable to Mediation and Conciliation in general…
• to set out specific arrangements for Mediation and Conciliation in connection with particular disputes ………
• to provide for a statutory code of conduct for Mediators and Conciliators and for training issues……, and
• to give effect to EU Directive No 2008/52/EC

Mediation is defined as “a facilitative and confidential structured process in which the parties attempt by themselves, on a voluntary basis, to reach a mutually acceptable agreement to resolve their dispute with the assistance of an independent third party, called a Mediator.

Conciliation means such a process in which the independent third party, called a Conciliator, actively assists the parties to reach, on a voluntary basis, a mutually acceptable agreement.

The Bill provides for specific exclusions from Mediation for (a) employment disputes already in being under Labour Relations Commission or Labour Court processes, (b) the avoidance of mandatory constitutional or statutory and (c) that it is not intended to replace existing ADR processes provided for in other enactments. However, this latter exception is subject to the proviso that such existing processes may be appropriately adapted by the Bill.

The Bill then sets out provisions in relation to;

• The role of the Mediator, Conciliator and other participants
• Need for speed in completion of the process
• Confidentiality & Specific Privilege
• Financial Cost
• Enforceability of the Mediated Agreement
• Suspension of Limitation Periods
• The role of the Courts
• “Staying” of Court Proceeding to enable Mediation
• Powers of the Court
• Court Costs
• Costs in the event of a party refusing to mediate
• Solicitor’s duty to advise a client “A solicitor….shall…..advise the person to consider mediation and conciliation…..”
• Mediation & Conciliation Certificates
• Report to Court of Mediator or Conciliator.

Family Law.

There are specific provisions for Family Law and S. 117 Claims under which parties “shall….. attend an information session on family law dispute resolution processes, including mediation and conciliation”.

In Family Law disputes a mediator is obliged to advise a party to consider seeking independent legal advice and to consider seeking independent advice whether legal or otherwise. Readers of our Newsletters and publications will know that Mediate Ireland have always forcibly promoted the attendance of legal advisers and representatives in such cases.

There are specific provisions in relation to Domestic Violence Act matters and situations of perceived risk to parties and further provisions in relation to children, representation of children and enforceability.

Personal Injury.

S. 15 of the Civil Liability and Courts Act, 2004 under which a Court “on the request of any party” may direct parties to try to settle at a Mediation Conference is being extended to say that the Court may also do it “upon its own initiative”.

There is also provision for “early neutral evaluation” in P.I claims whereunder the “early neutral evaluator” will provide an evaluation to the parties as to the likely outcome of the proceedings.

We expect this to have far reaching implications.

The Mediation Bill and the other aspects of mediation are discussed in detail at our Introductory Training courses in Mediation Advocacy. For details on this and other courses [Click Here].

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

Past Articles

• President McAleese & Chief Justice Mr. John Murray promote Mediation to resolve disputes
  
• Mediation should be used more to resolve workplace conflict
  
• Former Supreme Court judge Mrs Justice Catherine McGuinness discusses proposed Draft Mediation Bill
  

In short

Mediate Ireland will now provide training for the legal profession on how to act in Mediations – before, during and after.
Mediate Ireland is now providing mediation services in a number of key areas including Divorce/Separation, Commercial & Workplace/Employment

Newsletter – November 2010

Draft Mediation Bill Published

The inexorable march of Mediation becoming an integral part of all Civil Proceedings was greatly accelerated with the publication of the draft MEDIATION AND CONCILIATION BILL, 2010 yesterday, 16th November 2010. The Bill was published with the Law Reform Commission report entitled “Alternative Dispute Resolution: Mediation and Conciliation”.
Read More…..

Chief Justice calls on state to promote alternative to litigation

The use of alternative dispute resolution, as an alternative to litigation in the courts, must be actively promoted by the State so that both professionals and the public generally are informed as to its effectiveness, according to the Chief Justice.

Mr Justice John Murray was speaking at the launch of two reports of the Law Reform Commission tonight, one on alternative dispute resolution, mediation and conciliation in particular, and the other proposing a single new Bill to regulate the conduct of court proceedings.
Read More…..

Introduction to Mediation Advocacy (CPD Training 6Hrs)

The module that we have devised includes active participation, role play and runs over 5 hours starting at 2:30pm and running till 7:30pm. The cost of the course is €185 & 6 CPD points will be awarded. There has been overwleming demand for this training, selling out the the initial date in Dublin, that we have now added a second date:

Cork/Limerick – 25th Nov- BOOK NOW
Venue: Charleville Park Hotel

Dungarvan – 29th Nov- BOOK NOW
Venue: Lawlors Hotel

Dublin – 9th Dec - SOLD OUT
Dublin – 10th Dec- BOOK NOW
Venue: Maldron Hotel – Smithfield (Four Courts)

“I really enjoyed this course & gained a lot from it that will be very beneficial in practice as a barrister” – Catherine McLoone BL – Barrister-at-Law

“Well worth attending and useful in everyday practice” – Kate Craig – Partner, PJ Byrne & Co

Find out more….. © 2010 Mediate Ireland, 1 Dillon Street, Clonmel, Co. Tipperary, Ireland
Telephone – (052) 6123711 | Fax – (052) 6123717
info@mediateireland.com ]]> http://mediateireland.com/mediation-newsletter-november-2010.html/feed 1 http://mediateireland.com/workplace-employment-mediation-works.html?utm_source=rss&utm_medium=rss&utm_campaign=workplace-employment-mediation-works http://mediateireland.com/workplace-employment-mediation-works.html#comments Fri, 15 Oct 2010 12:20:48 +0000 Mediate Ireland http://blog.mediateireland.com/?p=27 Oct 15, 2010 - Mediation provides a structured, effective means of avoiding Employment Tribunals and Courts and bringing disputes to resolution in a quicker and more efficient and cost effective manner. Mediation is cost effective, confidential and discrete, and provides certainty to the parties in that they will sign up to their own resolution and thus it can also deliver to the parties benefits unavailable in an employment tribunal or court. ...[Read More.....]]]>

Mediation provides a structured, effective means of avoiding Employment Tribunals and Courts and bringing disputes to resolution in a quicker and more efficient and cost effective manner. Using an independent impartial, third party to guide negotiations can often help to defuse difficult situations. The parties can make comments to the mediator, who, properly managing the flow of information, transmits that information to the other side but ensures that it is done in a manner most helpful to achieving resolution.

Mediation is cost effective, confidential and discrete, and provides certainty to the parties in that they will sign up to their own resolution and thus it can also deliver to the parties benefits unavailable in an employment tribunal or court. Generally speaking, the sooner the issues are identified and explored the better the prospect of mutually acceptable resolution: Mediate Ireland provide a quick, cost-effective and confidential service because people want to get on with their lives.
Where the relationship looks as if it might be salvaged, the parties can plot both steps for desired change to achieve harmony and also, where necessary an agreed exit strategy. That way, if the issues rear their ugly heads again, the parties will already have agreed as to how they will deal with them. If the relationship is beyond repair, benefits can be obtained by agreement which cannot be ordered by courts or tribunals: agreed references, effective covenants about workplace information and individuals, and secrecy.

Where difficulties arise between workers, or with relationships between them, employers often feel that their only choice lies between disciplining one of the combatants or, removing a difficult individual. Personality clashes can be avoided or managed if an environment for resolving disputes or differences without commencing formal procedures is in place.

Mediation can fill what is currently a very expensive gap – in human, management, production and legal terms – in the present strategies and structures adopted and available. New strategies to introduce Mediation are patently beneficial from all perspectives – effective strategies not only for when issues have arisen and relationships have broken down, but also as structures and means for heading off and avoiding breakdown. Entrenchment and embitterment can be avoided by the adoption of such Mediation structures and practices.

The adoption of positions of employers and employer organizations on the one hand and of employees and unions on the other have become so ingrained in Grievance and Disciplinary procedures and precedents that very often the particular problem that requires resolution – the wood – becomes totally lost in habitual responses, practices and procedures – the trees. Mediation practices and skills will keep focus on the issues and, more particularly, on means of resolving them that are acceptable to all parties.

The value of Mediation is recognised by the Equality Tribunal and the Labour Relations Commission and both of them have established mediation processes and procedures. Early mediation can produce resolution even before cases get to that stage. Assertions of bullying and harassment are best dealt with at the earliest possible opportunity.

Mediation is a voluntary process in which the parties agree to participate – ergo, the right to withdraw is implicit. The mediator is impartial, facilitative and totally non-judgemental. It can start as soon as the parties are ready and available irrespective of the level to which the dipute has already escalated – the sooner the better.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

The Irish Times

September 25, 2010

CAROL COULTER Legal Affairs Editor

PEOPLE INVOLVED in family law disputes would have to attend an information session on mediation before resorting to court proceedings, under proposals to be made by the Law Reform Commission.

Former Supreme Court judge Mrs Justice Catherine McGuinness, the president of the commission, said yesterday this was one of the proposals to be made in its forthcoming report on alternative dispute resolution.

She told an international conference of the Chartered Institute of Arbitrators in Dublin yesterday that the commission expected to publish its report within the next few months. It published a consultation paper on the subject in July 2008 and asked for submissions.

Due to the enormous and unprecedented number of submissions, the commission had been unable to produce its final report and draft Bill within the usual time-frame of a year, she said.

She said the number of submissions reflected the public interest in alternative dispute resolution generally, and a public demand for an alternative to the expensive and lengthy route of litigation.

While the commission did not give a detailed account of its proposals in advance of the publication of reports, she said she could indicate the areas that would be considered. These included providing in the draft Bill a precise definition of the terms “mediation” and “conciliation”, around which there had been much confusion.

There would also be recommendations in the sensitive area of confidentiality and privilege, though these would be limited where there was a legal obligation to disclose certain information.

The report would also deal with the certification and professional qualifications of mediators, though she warned that the professionalisation of any service inevitably brought more costs.

Ms Justice Fidelma Macken of the Supreme Court said the area of intellectual property was a growing one for alternative dispute resolution, and there, both lawyers and non-lawyers, like patent specialists, could be involved. Dr Axel Reeg from Germany spoke of arbitration in Europe and said there was a difference between how it worked in the civil and common law systems. In the civil system the judge or arbitrator did not just listen, but also directed.

View Original Article.

Mediation Services

If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 052-6123711 to discuss your requirements or organize a mediation.

For more information on our mediation services CLICK HERE

Mediation Advocacy Training

Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.

For more information on our training programs CLICK HERE

Mediation in medical negligence cases will enable the resolution of disputes in a more timely, confidential and economical manner than the current system which places huge burdens – personal, psychological and economic – on all of the parties involved. 

For a plaintiff mediation provides a method of resolution that has less risk and can provide satisfaction within a period of time that such satisfaction has real meaning. For the plaintiff’s legal team the case moves and often provides the best chance to work out a structured settlement while those non-monetary matters – like explanations and apologies – that can enhance the real value of a settlement are still meaningful to their client. 

A defendant doctor or consultant can spend years being virtually terrorized by the threat of public embarrassment, professional ostracism, and financial ruin. He is frequently most anxious to give that explanation and apologise that the plaintiff suffered harm – even if not admitting that he caused the harm, just stating the truth that he is sorry that the plaintiff suffered it. 

What happens, however, is that the defendant and his insurance company, his employer and their insurance company and any other involved medical personnel and their insurance companies take up entrenched denial matrices between themselves. Thus, usually the first part of a mediation will be between the different defendants. If the defendants can agree on a reasonable range figure – before they go into battle between themselves on apportioning the liability – then whether or not the Plaintiff is willing to move into that range can be explored. If the plaintiff’s expectations are within that range, given acceptable explanation and apology, the defendants can then seek to agree their respective contributions. The “reasonable range” figure will give incentive to all sides and even if it does not lead to full resolution it will open the possibilities for partial settlements between the plaintiff and some of the defendants. 

International experience indicates that Cases seem to resolve more consistently if mediation occurs very early. Unlike many defendants, most medical negligence defendants are experts who can understand the facts, the risks and the theories. They may very likely have access to almost all the facts long before the plaintiff’s discovery even seeks them. At that stage the plaintiff will be only be at a stage of beginning to significantly increase the costs by engaging his own (usually foreign) experts. 

By now the plaintiff’s negative feelings towards the doctors and health care providers will have hardened significantly. The defendant’s’ “denial matrices” will also have hardened. What was a great tragedy for which a defendant felt sorry eventually became a past matter, an historical event that the defendant does not wish to remember or to accept any responsibility for. Medical negligence cases always involve personality problems as well as the specific issues.
Mediation works best when both parties are still able to communicate and listen.