"There is no doubt mediations are speedier, result in more creative outcomes, saves business relationships and singularly offer parties an opportunity to eliminate the risk of adverse decisions by retaining a large degree of control over the process and its outcomes. Bottom line is Mediation makes a lot of commercial sense for businesses in dispute."
Commercial disputes will no doubt occur and reoccur and recent figures reveal that almost 80% of commercial disputes in the UK are settled using mediation. Its use is also likely to increase in the rest of the Europe as a result of the European Mediation Directive;
(6) Mediation can provide a cost-effective and quick extrajudicial resolution of disputes in civil and commercial matters through processes tailored to the needs of the parties. Agreements resulting from mediation are more likely to be complied with voluntarily and are more likely to preserve an amicable and sustainable relationship between the parties. These benefits become even more pronounced in situations displaying cross-border elements. (EU Directive 2008/52/EC (the Directive). Preamble (6))
Irish Judicial opinion at the highest level is overwhelmingly positive about the use of Mediation in commercial disputes:
Ms. Justice Fidelma Macken (Supreme Court) :
“millions of Euro and hundreds of business days are being wasted each year in needless litigation when, in many cases, an alternative exists...mediation is a ‘no brainer’ for business particularly for the banking and insurance industries at the moment”.
Mr. Justice Peter Kelly (High Court Commercial List.):
"many of the disputes which come before the Commercial List could be resolved better and more cheaply through mediation rather than litigation...this was cheaper and quicker and provided more satisfactory resolutions because the outcomes were agreed by the parties themselves rather than being imposed by a judge."
The usual worry of pursing mediation is the idea that one party would play tactically and use the mediation process to gather information and intentionally fail to settle. The rationale behind this would be to use that information as evidence in court in order to make a weak case appear stronger or a strong case to become more likely to succeed. However, it cannot be stressed enough to that mediation is both confidential and without prejudice.
Neutrality is paramount and achieving this may take adopting both a facilitative approach as well as an evaluative one, of which a balance could promote trust and confidence in the mediator. It may be best to select a lawyer with expertise in the relevant field to mediate a commercial dispute, one who is also accredited as a mediator. Since accreditation is provided for by a credible body experienced in holding mediations (the MII), there is less chance of mediations being unsuccessful.
Once the agreement is drafted and signed by both parties and their lawyers, it becomes legally binding. However, as mediation is voluntary, it remains voluntary up to the point of agreement. Therefore heading to court remains an open option should either party decide not to sign the mediation agreement even if the terms have been reached.
The MII accredits mediation training courses which meet set training standards.
The purpose of CPD is to ensure that Mediators keep their knowledge and skills up to date for the benefit of users of their service and for their own personal and professional development.