Mediation is now a central element in dispute resolution architecture. It is a flexible process conducted confidentially in which Mediators quickly and expertly help people in conflict to reach their own agreement together. Mediation was historically only used in Family Law issues. However, the commencement of the Mediation Act 2017 has resulted in an increased awareness and willingness by the judiciary to look to Alternative Dispute Resolution in appropriate circumstances.
The Mediation Act 2017, which commenced on 1st January 2018, provides a statutory framework to promote the resolution of disputes through mediation as an alternative to court proceedings. The underlying objective of the Act 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 reducing the disadvantages of court proceedings.
Certain types of disputes have been excluded, for example: – Arbitration, disputes which fall under the jurisdiction of the Workplace Relations Commission and Judicial Review proceedings.
Mediation in General
Section 6 sets out the relevant principles governing Mediation:
- The parties may engage in Mediation as a means of attempting to resolve the dispute
- Participation is voluntary
- The existence of proceedings does not prevent the parties engaging in Mediation
- Any party may withdraw from the Mediation at any time (including the Mediator)
- A party may be accompanied to the Mediation and assisted by a person who is not a party to or obtain independent legal advice at any time during the Mediation
- It is for the Parties themselves to determine the outcome of the Mediation and the fees and costs of the Mediation shall not be contingent on its outcome
What are the advantages of Mediation?
Speed: Mediation offers a way to avoid the courts and seek an earlier agreement quicker rather than litigating through a congested courts system.
Cost Effective: The costs associated with resolving a case through mediation are generally substantially lower than costs associated with progressing cases through the courts. The costs are usually shared between the parties.
Confidentiality: Mediation is a private, confidential process which can benefit commercial entities who are seeking to protect their business and reputation during disputes. Accredited mediators are bound by confidentiality and either side of a dispute are only bound to disclose information voluntarily during mediation, whereas there is less disclosure control and more public exposure in a court setting.
Offers greater level of control: Mediation offers the ability for both parties in a dispute to maintain a greater sense of control over the process and settlement. Mediators are also able to explore more creative solutions to disputes, and aim to seek a mutually satisfactory outcome. A court setting normally results in a judge imposing a settlement on the parties involved.
Seeks a mutually-agreeable solution: Business relationships and reputations are critical to maintain. Finding a mutually-acceptable resolution to a dispute – particularly where a business relationship is expected to continue following that dispute – is a must for many and mediation offers this potential outcome. A collaborative approach to resolving a dispute can ameliorate any ill will in the relationship, whereas a court-imposed settlement often leaves one party aggrieved.
In our next article on this topic, we will look at the advantages of the Mediation Act 2017. For more information, contact: