Page 13 - Garda Journal Summer 2019

FEATURE | The Mediators’ Institute of Ireland
What is Mediation?
Dr Róisín O’Shea, Director, The Mediators Institute of Ireland
Mediation has been successfully used over many years to resolve disputes. The 2017 Mediation Act provides a statutory framework for provision of mediation in Ireland. The Act explains that mediation is a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute.
WHY IS THIS RELEVANT TO GARDAÍ?
Mediation can assist Gardaí in their roles with juvenile and community policing, to resolve difficulties in the workplace, manage change, resolve difficulties in their private life and as a court attendee where referral to mediation is now common practice.
MEDIATION IS COST-EFFECTIVE
Mediation can handle complexity – it can deal with single or multiple issues, and it can happen quickly, often preventing the further escalation of conflict, as early resolution is possible. It is also recognised that mediation is cost-effective and can avoid the often high cost of litigation. In introducing the Mediation Bill to the Dáil in 2017, the then Minister for Justice and Equality identified mediation as “a viable, effective and efficient alternative to court proceedings”. We all know of a friend or a family member who has gone through the court process for a family dispute or another kind of civil dispute, and we know from those stories that litigation often costs a lot, it can very stressful, and can take years to come to a conclusion. This is why government policy to support mediation is now set down in law.
WHAT KIND OF DISPUTES CAN BE MEDIATED?
The list is almost endless but includes; Community, Young Offender, Restorative Justice, Family disputes, Separating Couples, Parents who cannot agree on custody or parenting arrangements, Neighbour disputes, Partnership disputes, Business and Commercial disputes, Workplace disputes, Succession Planning or Probate disputes, disputes involving Elderly Relatives, disputes over land or rights of way, lease disputes and disputes involving Farm Families.
WHEN CAN I TRY MEDIATION?
Not all mediations are referred from court. You can try mediation at any time, even where one person has already started legal proceedings. Mediation is possible right up until final orders are made by a judge. The Act encourages people to try mediation in several different ways. When you first find yourself in a dispute, the person most of us turn to is a solicitor. Under the Act the solicitor must tell you about the advantages of resolving the dispute away from a courtroom, advise you to consider mediation as a means of resolving the dispute and provide you with information about mediation services and the names and addresses of mediators. Where you would like to try mediation and
the other person or persons in the dispute still want to litigate, the Act allows you to ask the judge to invite the other person to try mediation. Where the other person unreasonably refuses to try mediation then the judge now has the power to award legal costs against them.
CHOOSING A MEDIATOR AND THE MEDIATION PROCESS
The Mediators’ Institute of Ireland is the professional association for Mediators in Ireland. It is a not-for- profit organisation whose mission is to promote the use of quality mediation by ensuring the highest standards of education, training, professional practice and regulation. To choose a mediator you should go to our website http://www.themii.ie/ where our accredited members and their qualifications can be easily accessed. All members sign up to the MII’s Code of Practice and continuing professional development requirements.
Before you start mediation the mediator will provide you with an Agreement to Mediate, which will set out the fees, how and where mediation will be conducted and will advise you of your right to seek legal advice at any stage. The mediator will meet with the parties individually or together, this really depends on the mediator’s preferred model of mediation. For commercial disputes it can often be a one day session, and for some disputes mediation will involve a number of sessions over a period of time. You may bring your solicitor or be accompanied by another person to a mediation session, but in family disputes people usually attend alone and seek advice from their solicitor while mediation is in progress. The Act sets out the role of solicitors who can provide advice during the course of mediation, and particularly before a party to a mediation signs an agreement.
OUTCOMES OF MEDIATION
Mediation involves flexible problem solving. A mediator assists the parties to explore a wide range of options, but at all times it is the parties themselves who decide what the outcome of mediation will be. Parties to the dispute own the outcome. Those in dispute decide if and when an agreement has been reached between them. They may then also decide whether the mediation settlement is to be enforceable between them or whether it shall have no legal force until it is incorporated into a formal legal agreement or contract to be signed by the parties. The latter option may be more appropriate in complex cases. Mutually agreed arrangements, stress-tested through discussion in mediation, with an experienced professional mediator, can lead to a long lasting workable solution that often preserves personal or business relationships.
The results speak for themselves. Some statistics show an average success rate for mediation of 80%.
GARDA JOURNAL 13