Win/win

Mediation is a way of ending litigation privately, more quickly, and at far less cost – both in terms of money and stress – than litigating the dispute to the point of either winning or losing. Michael Peart encourages solicitors to get up to speed on their obligations in this regard

The distinguished mediator, speaker, author, and expert on all aspects of mediation, Kenneth Cloke, states in one of his many books, The Dance of Opposites: “A greater victory is achieved when it ends in nobody’s defeat.”

This is absolutely true in the context of mediation, and it is what a settlement achieved through mediation can offer. Mediation should not be seen as an alternative to litigation. In truth, they are complementary.

Mediation is a way of ending the litigation privately, more quickly, and at far less cost, both in terms of money and stress, than litigating the dispute to the point of either winning or losing.

There are many reasons why a party may feel that it must commence court proceedings, and yet retain the hope that both parties will agree to mediate at some later stage.

It may, for example, be the type of dispute where expert reports must first be obtained before any attempt at settling the claim can be responsibly undertaken. In such a case, a plaintiff must issue the proceedings in order to ensure that the limitation period for issuing proceedings under the Statute of Limitations 1957 does not expire.

Nothing is lost in such circumstances by issuing the proceedings and postponing any decision on whether to try and settle matters through mediation. It must also be borne in mind that, if mediation takes place at some stage after commencement of proceedings, it will always be without prejudice to the litigation.

If the parties agree to mediation but it fails to result in a settlement of the claim, the parties can continue with the litigation, and everything that has occurred at mediation remains confidential and cannot be disclosed or otherwise deployed in court. Mediation is without prejudice to the litigation.

Mediation mainstream

While mediation has been around for many decades in one form or another as a means of trying to achieve a consensual settlement, it is something that occurred quietly, behind the scenes.

The success of mediation has been more widely recognised over the last ten years. Judges have been heard to encourage parties to go to mediation rather than fight it out in court.

Court time is a scarce resource, and it makes sense that judges would try and preserve it for cases that really need a full hearing. During the COVID-19 pandemic, when the courts were closed, mediation became a real option for clients seeking finality in their disputes.

These mediations took place in person, provided that the necessary precautions were taken, or through virtual platforms such as Teams and Zoom.

Since the end of the pandemic, in-person mediations have continued to be a popular and successful way to try and bring litigation to an end. It is speedy, cost-effective, and confidential.

The vast majority of mediations are successful. I ask, rhetorically, why would a party choose to unnecessarily spend perhaps three precious years of their life in the litigation process, where perhaps the same dispute could be concluded by agreement in, say, six months, and at far lower cost?

Six years on

The Minister for Justice commenced the Mediation Act 2017 on 1 January 2018. This act moves mediation to centrestage as a means of alternative dispute resolution.

It recognises its unique qualities in assisting parties in dispute to resolving their disputes without having to incur the unnecessary costs and delay in going to court.

It recognises that mediation can lead to better outcomes for both parties than does litigation, where, for the most part, there can only be winners and losers.

Certain provisions of the act should be noted. Section 2 defines mediation as “a confidential, facilitative and voluntary process in which the parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute”.

It is worth noting with some emphasis that the definition makes clear that it is the parties themselves who resolve their dispute, albeit with assistance from the mediator.

In other words, at the end of the day, it is the parties who are in control of the process, unlike in a court, where the judge controls the process and imposes a result on the parties.

Indeed, section 6(9) is very specific in this respect: “It is for the parties to determine the outcome of the mediation.”

Section 6 emphasises the voluntary nature of mediation and provides that it can be resorted to at any point – even after court proceedings have been commenced.

The voluntary nature of mediation is underpinned by section 6(2), which provides that either party may withdraw from the mediation at any stage, be accompanied by any person, including a lawyer, or obtain independent legal advice at any time during the mediation. It is worth noting, also, that section 6(6) requires both the mediator and the parties to make every reasonable effort to conclude the mediation “in an expeditious manner which is likely to minimise costs”.

Section 14(1) of the act is, perhaps, the most important section that solicitors in particular should be aware of, and ensure it has been complied with, before any proceedings are commenced. It is mandatory in its terms.

Briefly summarised, section 14(1) requires that, prior to the commencement of court proceedings, the solicitor acting shall do the following:

1) Advise the client to consider mediation as a means of resolving the dispute,

2) Provide the client with information in respect of mediation, including the names and addresses of mediators,

3) Provide the client with information about: including a lawyer, or obtain independent legal advice at any time during the mediation. It is worth noting, also, that section 6(6) requires both the mediator and the parties to make every reasonable effort to conclude the mediation “in an expeditious manner which is likely to minimise costs”.

• The advantages of resolving the dispute other than by court proceedings, and
• The benefits of mediation,

4) Advise the client that mediation is voluntary,

5) Inform the client that, if court proceedings are to be commenced, the solicitor must make a statutory declaration (to accompany the originating document) evidencing (if such be the case) that the solicitor has complied with the provisions of section 14(2) of the act.

Solicitors should note also that section 14(3) provides that, where such statutory declaration has not accompanied the originating summons when it was issued, “the court concerned shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the solicitor concerned to comply with subsection (1) or, if the solicitor has already complied with subsection (1), provide the court with such declaration”.

Personal Injuries Board

Further support by the Oireachtas for the efficacy of mediation as a dispute-resolving process can be found in section 9 of the Personal Injuries Resolution Board Act 2022, which was commenced by the Minister for Justice on 14 December 2023 (SI 626 of 2023).

Section 2 of the act (commenced on 13 February 2023 – SI 28 of 2023) provides that, thenceforth, the body hitherto known as the Personal Injuries Assessment Board (PIAB) would be renamed the Personal Injuries Resolution Board (PIRB).

While that name change may seem somewhat inconsequential in any real sense, it does nevertheless serve to emphasise that the body’s objective is to resolve personal-injury claims, rather than just give its assessment of the appropriate damages the claimed injury should attract.

In furtherance of that worthy objective, section 9, which amends the Personal Injuries Assessment Board Act 2003 by the insertion of new Chapter 1A therein, now gives the PIRB the power to invite the parties to consider mediation as a means of attempting to resolve the claim.

It obliges the PIRB to provide the parties with information about the objectives and benefits of mediation, thus mirroring to a large extent the obligations placed upon solicitors under section 14 of the act of 2017.

Clearly, the Oireachtas – by enacting the Mediation Act 2017 and section 9 of the 2022 act – is recognising the important role that mediation now can play in seeing as many disputes as possible resolved through mediation.

Given the mandatory requirement now upon solicitors to advise their clients in advance of the commencement of any proceedings of the benefits of mediation, solicitors themselves need to be aware of the benefits of mediation for their client.

During my time as a solicitor, and later as a judge of the High Court and Court of Appeal, I have seen many lives and businesses destroyed by the pursuit of litigation to the bitter end, and where neither party has emerged as a winner in any real way.

That experience leads me to agree wholeheartedly with the American journalist and satirist, Ambrose Bierce, when he included the following definition of litigation in The Devil’s Dictionary: “Litigation is a process one enters as a pig and emerges as a sausage.”

The emotional and financial toll on the parties involved in litigation can be immense, and both should and can be avoided by them being encouraged to attempt to resolve the dispute through mediation.

It is worth bearing in mind, also, that the vast majority of proceedings that are commenced eventually end up being settled at some point – perhaps ‘at the door of the court’, when the majority of the litigation costs have already been incurred.

I have long thought that this point of settlement should be brought forward to a much earlier stage in the process in order to avoid the unnecessary costs associated with getting ready for trial. Mediation provides a convenient, risk-free, speedy and cost-effective method of achieving this for clients.

Michael Peart is a mediator, arbitrator, and former judge of the Court of Appeal. His main priority is resolving conflicts and client disputes through expert mediation, using his legal expertise, impartiality, and independence – see michaelpeart.ie.

LOOK IT UP

LEGISLATION

• Mediation Act 2017
• Personal Injuries Resolution Board Act 2022
• Statute of Limitations 1957 (as amended)