Mediation Awareness Week 2018 – Are you involved in a dispute or conflict? Try Mediation first

Mediation Awareness Week is taking place in the week 8th – 13th October next. In this article Susie Hall, a fully qualified Mediator and Council Member of the Mediators’ Institute of Ireland, writes about Mediation and its benefits when used in many situations in which conflicts and disputes can arise.

Typically, such situations can arise in industry (witness the recent Ryanair pilots’ dispute), in domestic scenarios (e.g. family and marital breakup) in farming (land ownership and divisions, boundary disputes, etc,). Another context in which Mediation has become exceedingly relevant arises from the recent introduction into Irish law of The Mediation Act 2017 which Judges are now recommending as a ‘first option’ route which those in dispute would be advised to take before resorting to the expense of a full court hearing.

Are you involved in a dispute or conflict? Try Mediation first

by Susie Hall

Disputes can and do arise within families, in the workplace, between neighbours and in many other situations. This is inevitable and many disputes are resolved satisfactorily by the parties to the dispute themselves. However, this does not always happen and when a dispute is not resolved, it will not just go away. It will only get worse and can lead to a toxic atmosphere in the workplace or within the family.

The physical and mental health of the parties engaged in the dispute can be affected. Colleagues/family members are embarrassed by the atmosphere created by the dispute and generally try to avoid being drawn into it or being pressurised to take sides. Employees involved in an ongoing dispute may have to take stress-related sick leave, with all that that entails for management. Eventually, unresolved disputes can end up with the Workplace Relations Commission or the Labour Court, not to mention the “Parliament of Joe Duffy”. They can also end up in the Civil Courts, with prohibitive legal costs and all the attendant negative publicity and reputational damage.

Participants in these disputes are often left with a feeling of dissatisfaction that the process was not fair, that they were not listened to, that there was a huge imbalance of power and that they did not agree with the outcome but had no real input into what was decided. This can impact very seriously on their morale and negatively affect the working environment for all. In the Civil Courts there is an adversarial system in place, by which you can only win by making the other party lose. This can destroy any hope of restoring a respectful relationship between the parties.

Such are the potential benefits to mediation that they have been recognised at a statutory level, with the recent implementation of the Mediation Act 2017. The Act, passed by both houses of the Oireachtas on September 26th 2017, came into effect on January 1st 2018 and places new obligations on legal advisers, who must advise their clients to consider mediation as a cheaper and quicker alternative to litigation.

Mediation – the ideal mechanism for resolving disputes

• The advantages are obvious. The process is entirely confidential to the parties and people do not have to wash their dirty linen in public.
• It all happens in a completely private, confidential, very calm environment.
• Mediation can be organised in a matter of days, whereas litigation can take years with legal costs spiralling beyond the control of either party

• Mediation is a voluntary process in which both parties in the dispute agree to participate.
• There is an impartial mediator – there are no imposed solutions
• The process takes place at a time and place agreeable to both parties
• There are no drawn-out delays as may exist in accessing the Labour Court or the Civil Courts
• There is a commitment to absolute confidentiality – only the parties to the dispute will know what took place or what agreement was reached
• Ground rules have been agreed by both parties and will be enforced by the mediator.
• The aim is not to apportion blame but to seek a positive way forward for both parties
• Both parties are given the opportunity to tell their story and are listened to without interruption
• Neither party wins by making the other lose – a win/win solution for both parties
• Should mediation fail, the parties still retain all of their legal rights to go to court
• Over 80% of all mediations are successful.

Commercial Mediation

It is almost inevitable that in the day to day operation of a business, disputes will arise. Workplace disputes suck the energy out of any organisation, lead to parties focusing on the dispute rather than on the prosperity of the organisation and can cause parties to be absent on work-related stress. If these disputes are not resolved at an early stage, valued employees, who cannot work in such a toxic atmosphere, may leave. If the dispute ends up in the WRC, there can be serious reputational damage to the organisation as the outcome of cases are published on the website. Mediation is a better way as it enables the parties to work out a positive solution, without the need for one party to win and the other to lose. It is entirely confidential, so the company’s “dirty linen” does not have to be aired in public.

Divorce Mediation is often a creative solution to paving a smoother path to better relationships not only with the divorcing spouse, but with children too. Going through a divorce can be one of the most emotionally painful things a person can experience.

Often one or both of the parties has been deeply hurt by the other and their decision-making ability becomes clouded by their pain and anger. This, then, fuels a long, expensive and drawn-out divorce process where nobody wins, except the lawyers. Separating Couples would be well advised to try mediation first as it allows them to maintain control over decisions regarding the most precious and private areas of their lives e.g. parental access, maintenance, division of property etc. It makes no sense to hand over the power to make such decisions to a judge, who does not know the parties or their children and will have to make an arbitrary decision, which may not suit either party.

Farm disputes can be difficult to resolve. If you are involved in a dispute that is proving difficult to settle, either a dispute between family members or a farm business dispute, mediation may provide the best solution. Family farm disputes that could not be settled by the parties themselves have traditionally been resolved in court. The legal route to dispute resolution is costly, may be heard in public, can be a long drawn out process and almost certainly leads to break-up of personal relationships or loss of business relationships. Mediation offers a far better alternative to dispute resolution particularly for family farm disputes, whether they be farm business disputes or disputes between family members. Today’s family farm business involves many commercial transactions and business relationships as well as having to cater for various family relationships which do change over time. These family and business relationships can, and do, give rise to problems and disputes.

So how do you find a qualified mediator?

It is extremely important to use a fully qualified mediator, who is bound by a strict code of ethical conduct and practice. The Mediators’ Institute of Ireland www.themii.ie has a register of mediators, all of whom are bound by this code. Many of their mediators specialise in particular areas, such as:

• Family
• Separating Couples
• Organisational/Workplace
• Agriculture
• Elder Mediation
• Civil and Commercial
• Community
• Healthcare
• Construction
• Restorative Practice
• Insurance
• Professional Negligence

The website is extremely user friendly and qualified mediators can be sourced under area of speciality, location etc.

Susie Hall is a fully qualified Mediator and Council Member of the Mediators’ Institute of Ireland