There is no comprehensive statute dealing with mediation in Ireland at present. Mediation arrangements may be embodied in a contract between the parties. It is possible for a contract to provide for mediation before the dispute develops. Mediation agreements are most commonly entered after the dispute has arisen.
Mediation bodies may provide a model mediation agreement which may be used and amended as appropriate. Generally, the mediation agreement will deal with the scope of the mediation, including the issues to be referred to mediation. It will deal with practical matters, such as the names and identities of the parties, persons attending, time and place of mediation, confirmation of persons with authority to settle and fees.
It should provide for confidentiality in relation to information received in the process. Communications between the parties are deemed to be “without prejudice” to secure them against disclosure to third parties and or for use in the litigation, in so far as this possible.
The mediator must confirm that he has no conflicts of interest and undertake to keep information confidential unless required to disclose it by law. The parties will agree that the mediator is not to be called as a witness in connection with the dispute, in relation to matters arising in the mediation. The mediator may be required to be indemnified in relation to any application or attempt to make him a witness. The mediation should be agreed not to be final until formalised and signed. Provision should be made for the cost of the mediation.
The mediator should read papers supplied in advance and consider whether the case is suitable for mediation. He may need to brief himself on particular issues relevant to the subject matter, in order to understand the parties’ dispute and their objectives.
The mediator may arrange a pre-mediation meeting, in order to explore options and set out a roadmap. As an alternative, he may contact the parties’ advisers by telephone or in conference to establish necessary information. He will wish to confirm the parties understand the process and to discuss practical matters in terms of organisation and the arrangement of the mediation. He should identify the parties who are to attend and specify the documents to be provided. He should set a timetable for the mediation and dates by which requisite steps should be taken. He should be satisfied that the person attending the mediation has authority to settle the dispute if an agreement can be reached, if at all possible.
The persons who will attend the mediation should include those with a fully informed understanding of the dispute. They should have direct knowledge of the issues. Ideally should be those who are most closely involved. Parties will generally attend with their representatives, most commonly legal representatives. Solicitors will commonly instruct counsel to attend instead. The parties attending should have authority to settle the dispute.
Experts and Witnesses
It may be appropriate to have one or more experts attend at the hearing. In some cases, the mediator may require direct assistance from an expert to understand the subject matter of the dispute. There may be a jointly instructed expert or separately instructed experts, where there are matters within their expertise in contention.
Experts should meet on “without prejudice” basis, in order to see if the issues can be narrowed and to identify what is substantially in dispute. Experts may make a statement at the joint session and be questioned by the mediator, with the prior consent of both parties. Alternatively, the expert may simply be on standby to assist in technical issues.
In some cases, where there are disputes of fact between witnesses, the witnesses may attend at the mediation in order to clarify their account. The mediator may meet with them privately or by a more formal process of quasi-cross-examination in a joint meeting. Even if the witness does not participate, the parties may wish to have witnesses present to assist in relation to issues that arise.
The mediator will generally request that the parties provide a position statement, setting out their case by a certain date prior to the mediation. In some cases, the mediator may require and set out a timetable and sequence, for the exchange of position statements, with the parties having the right to reply. The position statement is not a formal document as such. The purpose is to fully inform the mediator of each side’s case. It may be referred to as a statement of case.
The position statement should be concise and set out the facts and issues involved. It should set out the party’s contentions on the basis of the facts and the law. It should set out the party’s objectives. It may identify further information required by way of discovery or quasi-discovery. The statement should be in a format which can be presented to the other side. In some cases, it may be necessary or appropriate that the statement remains confidential and is addressed to the mediator only.
If proceedings have already issued, some of the documentation from the proceedings may be used or may assist in the preparation of the statement of case. The party should prepare a bundle of documents for use at the mediation. Key documents only should be furnished. The mediators may limit, stipulate, or limit the size of the documentation which they are prepared to receive.
The parties should try to ensure that there is an agreed bundle which will be presented to the mediator. The documents sent to the mediator may include a statement of case with summaries of issues, a copy of pleadings and orders in the case, witness statements, expert reports, key documents relating to the dispute, relevant correspondence and attendances and legal authorities supporting the claim.
The mediator’s authority to disclose positions papers and other documents will be determined by the parties. If there is no objection, they may be exchanged in advance of the mediation. If position papers are to be reserved to the mediator, this should be indicated. There may be circumstances in which a failure to disclose documents amounts to a misrepresentation or breach of the terms of the mediation agreement.
Each party may prepare confidential documentation which they do not wish to disclose to the other party. This may include experts’ opinions and witness statements, which have not yet been disclosed. It may include counsel’s opinions and other materials protected by privilege and documents which are harmful to the party’s case.
Opening the Mediation
The mediator may seek clarification from the parties in advance of the mediation regarding the information and documents that have been furnished. He may seek to obtain a greater understanding of what a party seeks to achieve and might be willing to agree to.
The mediator will generally open the mediation with a joint meeting at which parties introduce themselves. The mediator will make a formal statement relevant to the subject matter of the dispute and the issues to be resolved. He will usually give an outline of his qualifications and professional experience.
He will explain the purpose of the mediation and explain the course proposed to be followed. He will confirm that he is neutral and that if any third party who is involved, has an interest in the matter, he is to disclose it or his connection with any party.
He will explain his role; that he is not there as an adjudicator but that he seeks to assist the parties in reaching a settlement in a flexible way. He will explain that the communications with him are confidential unless they are agreed to be disclosed to the other side. He will explain that what occurs in the course of the mediation will be inadmissible in litigation, on the basis that the mediation is without prejudice.
He will explain that the process is nonbinding and may be abandoned by any party at any time. He will also request that the requisite parties are present, in particular, those with authority to conclude a settlement agreement.
Opening Statement and Witnesses
The mediator will request the parties to outline their case and set out what they hope to achieve. This may be done by reference to their position statement or may be supplemented. The opening statements will commonly be made by the legal representatives but may be made by the parties themselves. The lawyers’ statement should deal with both issues of facts and law.It will generally be limited to a particular length of time. This will depend on the complexity of the issues.
The opening statement acts to give parties the opportunity to outline their case to the other and to the mediator. They can and should point out weaknesses in the other case and anticipate matters which may be raised by the other side. It may serve to give the parties their “day in court” and the opportunity to ventilate the issue in a manner which avoids a formal plenary hearing. The opening statement may set out how one party is willing to settle the dispute. It should seek to make an agreement and adopt a reasonable approach.
If the lawyers have made the opening statements, it may be appropriate that the client speaks briefly afterwards. This may be appropriate in order to explain the context and importance of the case and his grievances. After the opening statements have been delivered, the mediator may ask questions to clarify matters he requires to know.
In some cases, it is appropriate for witnesses to give evidence of facts at the mediation. This will generally follow a format of evidence in chief and cross-examination. The witnesses will not be sworn in. After lay witnesses, expert evidence may be heard. Experts may give their evidence at a joint meeting or may be available in private sessions to answer questions of the parties. At the end of the joint meeting, a mediator may summarise the issues in question and explain his approach during the remainder of the session.
If the parties are reasonably cooperative, the mediator may seek to agree on key issues that need to be discussed, ask the parties to further refine the final issue for the mediator and seek further information. The next phase will take place primarily in private meetings of the parties. The purpose is to explore and discuss. In some cases, it may be appropriate to extend the opening meeting in order to facilitate cooperation and commence to explore possible compromises.
The mediator should explain how he will conduct the meetings and explain his role. He will explain and reiterate that they are confidential. A timetable will be set for the remainder of the session. The meeting should let the parties discuss the issues in private and consider their own strategy and proposals for settlement. It enables the mediator to discuss the issues privately and test their strength and the reality of their appraisal of their case. The parties may be facilitated in considering proposals proffered by the other side and in making a response.
This phase will commence with exploration, informing and problem, solving followed by a negotiation and bargaining phase. The phases may take place simultaneously. The mediator may choose at any point to have a joint meeting if this would assist in a settlement. In the exploratory phase, the mediator will seek to assess the strength and weakness of the party’s case relative to that of the other. He will seek to assist the parties in discovering the best and the most realistic outcome.
The mediator may seek to have both parties gain a common understanding of the matters in dispute so as to know the gap between. The mediator will assist the parties in working out the best, worst and most realistic outcomes. One of the most important aspects of the mediator’s role is to help explore solutions and strategies in order to work through to an agreement.
The mediator may persuade parties to reassess their position in light of the fact. He may require them to consider their bottom-line rather and move them from tactical positions. He may persuade wider disclosure. The mediator may focus on issues in disputes and break them down, in order to deal with them successfully. If time is required to consider offers and to reflect, an adjournment may be appropriate.
Where parties are overly unrealistic or insufficiently dispassionate; he may persuade them to look at the matter in a more objective manner and realistic manner. The mediator may facilitate the parties to bridge a gap by splitting differences. He may persuade the party to make a donation to charity rather than to the other side if this is the key factor in achieving a settlement.
The mediator may suggest alternative methods and solutions, in order to resolve the dispute in a pragmatic way. If there are unresolved issues, for example, in relation to the quantum of damages, he may suggest that the dispute be adjourned, to be determined by another ADR method. He may advise on the matter and give his opinion on the likely outcome of the issues. In this case, he would be acting in an evaluative role, having moved from the facilitative role.
Towards a Settlement
Following the private meetings, the parties should ideally move towards proposals for a settlement. Before leaving the private meeting, the mediator should sum up discussions and offers and concessions made that he is authorised to communicate. The mediator may then go back and forth between the parties making offers, concessions and communicating responses. In this context, he is acting as an intermediary.
An outline agreement may commence with agreement on less contentious issues, followed by bargaining on more contentious matters The exercise may involve a joint meeting, if the mediator believes this would assist in reaching an overall settlement. It may be attended by representatives or by all parties.
If a settlement is reached, the mediator should confirm the terms and ask the legal representatives to draw up the agreement. The mediators’ input may be required in respect of points of detail. The terms of mediation will usually provide there is no settlement agreement unless an agreement is signed and finalised.
Closing the Mediation
If a settlement is not likely to be achieved, or if one party wishes to terminate the mediation, the mediation may end. If no settlement is reached, the mediator will record this and set out reasons. He may summarise the parties’ closing positions. This may form the basis for further discussion and ultimate agreement. The mediator may adjourn the mediation. If he does not do so, he may give a final round up and seek to persuade the parties once more, of the advantages of a settlement over litigation.
The mediator may convene a closing meeting. If a settlement has been reached on all or most issues, it may be concluded for the purpose of leaving the remaining issues to be determined by litigation. The mediation may be adjourned, for example, for the purpose of pursuing another form of alternative dispute resolution.
The mediator may adjourn the mediation at any time, as the process is voluntary. A mediation may be terminated at any time by the parties. There may, however, be consequences in some cases in terms of court sanctions by way of the ultimate costs awards. If the mediation is not successful, then the mediator will generally have no further role. The parties may refer back to him, for further mediation at a later point if they so agree.
The parties may request the mediator to give an opinion on the likely outcome of the dispute or may recommend settlement terms. If a mediator has no further possible role, he is likely to return the papers. He may retain the file for the purpose of providing further assistance.
The settlement agreement will provide for the termination of the litigation. There may be an agreed order or a “Tomlin” order. This is an order dismissing proceedings but providing for a private schedule, setting out the terms of the agreement. In the event of a dispute, the parties may apply to the court to enforce the terms recorded in the schedule without new proceedings. The Tomlin order preserves the confidentiality of the settlement.
As in any other contract, a settlement agreement on foot of mediation may be set aside on grounds such as fraud, misrepresentation or breach of an agreement may operate to open the agreement and give remedy to another party. The agreement itself may make provision for the consequences of breach.
The settlement agreement may incorporate provisions on the of the mediation. The settlement agreement may provide that disputes regarding implementation are to be referred back to the mediator. This may be appropriate in complex settlements which require steps to be undertaken by the parties in order to implement the settlement.
Privilege from Disclosure
Mediation is usually undertaken “without prejudice” and is thereby privileged from disclosure. This is an exception to the general principle that an admission, adverse to the interests of a party to litigation, is admissible as evidence of the admitted fact. Public policy supports mediation and the courts are likely to be vigilant in upholding the integrity and confidentiality of the mediation process.
The principle of “without privilege” is upheld in standard mediation arrangements and in enhanced by the terms of confidentiality clauses in formal mediation agreements. The principle protects verbal and written communications made for the purpose of settlement. This includes correspondence, offers and concessions, position papers, communications between the party and the communications for the purpose of persuading parties to mediate.
Certain communications are not privileged. Open offers, expressly so made, are not protected. Offers that are “without prejudice except as to costs” and communications not aimed at settlement of the dispute are not privileged.
Communications made in the course of mediation may be looked at to determine when there is a dispute as to whether there has been a settlement at all. The facts or circumstances by which the alleged contract is entered is relevant when there is a dispute as to the existence or otherwise of a contract. The mediation agreement itself is not usually protected by the “without prejudice” principle.
Privilege may be waived by all parties together. This may take place implicitly in some circumstances. The without prejudice principle benefits the parties. The privilege is not that of the mediator. If the parties have waived privilege, then the mediator may not rely on it.
Mediation agreements will generally contain confidentiality clauses. They may be enforced by an injunction in certain circumstances. Damage may also be available for breach. In the absence of express clause, it is likely that an implied clause, obligation of confidentiality will arise.
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