ABOUT CIVIL AND COMMERCIAL MEDIATION
The draft Mediation and Conciliation Bill, 2010 defines mediation 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.”
The mediator or mediators, arrange a convenient neutral venue for the parties to attend, at a mutually agreed date and time. The negotiations will initially commence through shuttle mediation where the mediator/mediators move from one room to another. These discussions are private and confidential and the information/responses/offers that the mediator/mediators bring from room to room is at the discretion of the parties. This process will identify the issue or issues in dispute, and explore all options, with a view to formulating a solution that is satisfactory to all parties in the dispute.
Subject matter areas include;
- Contract disputes
- Professional service disputes
- Private consumer disputes
- Insurance disputes
- Shareholder grievance
- Banking and Financial Services matters
- Property and Boundary disputes
- Family business disputes
What is Civil & Commercial Mediation?
It is a confidential service that gives parties, in dispute with each other, an opportunity to work with a mediator or mediators, with appropriate competence and training, to find a mutually agreed solution to the problem.
- It is a voluntary process
- It is absolutely confidential, unless otherwise agreed in writing by the parties
- The aim is to come to a mutually agreed solution
- The parties are in complete control of the process, and can terminate the process whenever they wish.
- A consequence of resolution through mediation is often the resumption of good relations between the parties.
What are the benefits?
- mediation succeeds in approximately 80% of cases, it is tried, tested and it works.
- It is fast and cost effective; sessions can be scheduled quickly
- The mediator is impartial
- The process is non-adversarial
- mediation allows the problems to be resolved informally and quickly, bringing to a conclusion disputes that could otherwise carry on for years.
- Any mutually agreed solution is likely to last
- Mediation does not prejudice the parties’ rights in the event that no agreement is reached on some or all issues in dispute.
How does it work?
Contact with the mediator is usually made by a representative of the organization or by an individual involved in the dispute. The mediator first speaks to each of the parties to the dispute by phone to explain the process and to answer any questions and indicate what preparation is required. Informed consent is given by signing the Mediation Agreement, and the ground rules are set out. The aim of the process is to allow each party involved in the dispute the opportunity to be heard and to engage with the other party/ies to reach a workable solution. The process is flexible and may involve joint meetings or meetings with the mediator alone, usually carried out in one day. The mediator will assist the parties to look for practical solutions through structured negotiations. Mediation is an alternative to the adversarial litigation route which often incurs significant costs. The mediation costs are borne equally between the parties, unless otherwise expressly agreed.
Agreement
When the Parties settle a dispute at mediation, their joint decisions will be recorded in a written Agreement drafted by the Mediator. Before signing the parties will be asked to seek independent legal advice. The outcome of a successful civil or commercial mediation is a binding agreement providing a certain and ultimately enforceable resolution to the dispute.