The context of mediation in Ireland
People often ask me about how mediation 'works' in Ireland and what the requirements are to be a mediator. In Ireland we are fortunate that there is legislation that provides the structure for how mediation services are provided in this jurisdiction.
Mediation is defined by the Mediators' Institute of Ireland (MII) as ‘a process in which an independent, neutral Mediator assists two or more disputing parties in resolving the dispute in a collaborative, consensual manner’ (The Mediators' Institute of Ireland, 2023).
The MII explain mediation as;
(The Mediators' Insititute of Ireland, 2023)
The three benefits of mediation were equally summarised and described as;
(US Office of Special Counsel, 2023)
In Ireland, the Mediation Act (2017) identifies mediation as ‘… an alternative to the institution of civil proceedings or to the continuation of civil proceedings that have been instituted…’
(Mediation Act, 2017, n.d.)
The Mediation Act 2017 in Ireland was identified as a key moment and driver for mediation in Ireland and ‘changed everything’ according to Gerry O’Sullivan who was quoted in the Irish Independent as saying “Once the bill came into place, people began to see it [mediation] more as an option” (Evans, 2022).
The article goes on to quote another experienced mediator who explained that ‘The process of mediation is very empowering and respectful of each person involved and their issues and concerns,’ and how mediation is ‘…empowering because they alone make the decisions to resolve their difficulties or the issues that exist between them…they design the best solution for them and their circumstances’ (Evans, 2022).
Section six of the Mediation Act (2017) provides the legal description of how mediation should be conducted in that;
‘ (1) The parties to a dispute may engage in mediation as a means of attempting to resolve the dispute.
(2) Participation in mediation shall be voluntary at all times.
(3) The fact that proceedings have been issued in relation to the dispute shall not prevent the parties engaging in mediation at any time prior to the resolution of the dispute.
(4) A party may—
(a) withdraw from the mediation at any time during the mediation,
(b) be accompanied to the mediation, and assisted by, a person (including a legal advisor) who is not a party, or
(c) obtain independent legal advice at any time during the mediation.
(5) Subject to subsection (4)(a), the mediator and the parties shall, having regard to the nature of the dispute, make every reasonable effort to conclude the mediation in an expeditious manner which is likely to minimise costs.
(6) Subject to subsections (7) and (8) and subject to the confidentiality of the mediation, the mediator may withdraw from the mediation at any time during the mediation by notice in writing given to the parties stating the mediator’s general reasons for the withdrawal.
(7) A withdrawal under subsection (6) by the mediator from the mediation shall not of itself prevent the mediator from again becoming the mediator in that mediation.
(8) Where the mediator withdraws from the mediation under subsection (6), the mediator shall return the fees and costs paid in respect of that portion of time during which the mediator was paid to act as the mediator and for which he or she will no longer act as the mediator.
(9) It is for the parties to determine the outcome of the mediation.
(10) The fees and costs of the mediation shall not be contingent on its outcome.’
(Mediation Act, 2017, n.d.)
The Mediators’ Institute of Ireland further reflect the fundamental elements of mediation in their Code of Ethics and Practice (2021) as
(Code of Ethics and Practice for Mediators, 2021)
I liked the definition provided by the International Mediation Institute who simply defined mediation as ‘negotiation facilitated by a trusted neutral person’. (International Mediation Institute, n.d.) While the definition is short I liked that there was recognition of the key role played by the mediator in the process, the focus also on negotiation and the qualities of the mediator as a trusted, neutral person. While the definition does not capture all the other key elements of the mediation process, I do like the overall intention of the quote.
A key benefit of mediation was identified by (Marquis, 2017) who wrote that ‘a key advantage to mediation is that it surfaces concerns and fears of the parties, addresses them and overcomes them. Strict legal forums don't allow for much more than facts, supporting evidence, tight procedural rules and handing over the issue to someone who takes a technical view and declares a winner.’
From the descriptions of mediation identified in this blog, the core elements identified are that mediation is a process to allow parties to resolve their disputes, that participation in mediation must be voluntary, confidentiality is essential within the mediation experience and the parties are solely responsible for identifying and agreeing any settlement is a key requirement. Equally the importance of having an experienced, trusted and neutral mediator must also be recognised.
There is further work to progress in Ireland in terms of the 2017 Act and the establishment of a Council to regulate mediators (a role currently managed by the MII) but we have education, professional standards and continuing professional development requirements for mediators in Ireland to maintain their annual practice certificate which should ensure a high and professional standard of service to those seeking mediation.
People often ask me about how mediation 'works' in Ireland and what the requirements are to be a mediator. In Ireland we are fortunate that there is legislation that provides the structure for how mediation services are provided in this jurisdiction.
Mediation is defined by the Mediators' Institute of Ireland (MII) as ‘a process in which an independent, neutral Mediator assists two or more disputing parties in resolving the dispute in a collaborative, consensual manner’ (The Mediators' Institute of Ireland, 2023).
The MII explain mediation as;
- a form of ADR (Alternative Dispute Resolution).
- a way of resolving disputes.
- a process in which the Mediator assists the parties to negotiate a settlement.
- a process of collaboration, not conflict.
- a transformative, empowering process.
- safe, respectful and voluntary.
- constantly consultative - nothing happens without your input.
- a process which invites an open mind.
(The Mediators' Insititute of Ireland, 2023)
The three benefits of mediation were equally summarised and described as;
- Informal - The process is informal and flexible; attorneys are not necessary. There are no formal rules of evidence and no witnesses.
- Confidential - Mediation is a confidential process. The mediators will not disclose any information revealed during the mediation. The sessions are not tape-recorded or transcribed.
- Quick and Inexpensive - When parties want to get on with their business and their lives, mediation is an option to consider. Mediation generally takes less time to complete, allowing for an earlier solution than is possible through investigation.
(US Office of Special Counsel, 2023)
In Ireland, the Mediation Act (2017) identifies mediation as ‘… an alternative to the institution of civil proceedings or to the continuation of civil proceedings that have been instituted…’
(Mediation Act, 2017, n.d.)
The Mediation Act 2017 in Ireland was identified as a key moment and driver for mediation in Ireland and ‘changed everything’ according to Gerry O’Sullivan who was quoted in the Irish Independent as saying “Once the bill came into place, people began to see it [mediation] more as an option” (Evans, 2022).
The article goes on to quote another experienced mediator who explained that ‘The process of mediation is very empowering and respectful of each person involved and their issues and concerns,’ and how mediation is ‘…empowering because they alone make the decisions to resolve their difficulties or the issues that exist between them…they design the best solution for them and their circumstances’ (Evans, 2022).
Section six of the Mediation Act (2017) provides the legal description of how mediation should be conducted in that;
‘ (1) The parties to a dispute may engage in mediation as a means of attempting to resolve the dispute.
(2) Participation in mediation shall be voluntary at all times.
(3) The fact that proceedings have been issued in relation to the dispute shall not prevent the parties engaging in mediation at any time prior to the resolution of the dispute.
(4) A party may—
(a) withdraw from the mediation at any time during the mediation,
(b) be accompanied to the mediation, and assisted by, a person (including a legal advisor) who is not a party, or
(c) obtain independent legal advice at any time during the mediation.
(5) Subject to subsection (4)(a), the mediator and the parties shall, having regard to the nature of the dispute, make every reasonable effort to conclude the mediation in an expeditious manner which is likely to minimise costs.
(6) Subject to subsections (7) and (8) and subject to the confidentiality of the mediation, the mediator may withdraw from the mediation at any time during the mediation by notice in writing given to the parties stating the mediator’s general reasons for the withdrawal.
(7) A withdrawal under subsection (6) by the mediator from the mediation shall not of itself prevent the mediator from again becoming the mediator in that mediation.
(8) Where the mediator withdraws from the mediation under subsection (6), the mediator shall return the fees and costs paid in respect of that portion of time during which the mediator was paid to act as the mediator and for which he or she will no longer act as the mediator.
(9) It is for the parties to determine the outcome of the mediation.
(10) The fees and costs of the mediation shall not be contingent on its outcome.’
(Mediation Act, 2017, n.d.)
The Mediators’ Institute of Ireland further reflect the fundamental elements of mediation in their Code of Ethics and Practice (2021) as
- voluntary process,
- that confidentiality applies to every stage of the Mediation Process,
- that the Mediator is and remains impartial and neutral,
- that the parties have the right of self-determination and to decide on their own solutions rather than having a solution imposed on them.
- The participants will treat each other and the process with respect.
(Code of Ethics and Practice for Mediators, 2021)
I liked the definition provided by the International Mediation Institute who simply defined mediation as ‘negotiation facilitated by a trusted neutral person’. (International Mediation Institute, n.d.) While the definition is short I liked that there was recognition of the key role played by the mediator in the process, the focus also on negotiation and the qualities of the mediator as a trusted, neutral person. While the definition does not capture all the other key elements of the mediation process, I do like the overall intention of the quote.
A key benefit of mediation was identified by (Marquis, 2017) who wrote that ‘a key advantage to mediation is that it surfaces concerns and fears of the parties, addresses them and overcomes them. Strict legal forums don't allow for much more than facts, supporting evidence, tight procedural rules and handing over the issue to someone who takes a technical view and declares a winner.’
From the descriptions of mediation identified in this blog, the core elements identified are that mediation is a process to allow parties to resolve their disputes, that participation in mediation must be voluntary, confidentiality is essential within the mediation experience and the parties are solely responsible for identifying and agreeing any settlement is a key requirement. Equally the importance of having an experienced, trusted and neutral mediator must also be recognised.
There is further work to progress in Ireland in terms of the 2017 Act and the establishment of a Council to regulate mediators (a role currently managed by the MII) but we have education, professional standards and continuing professional development requirements for mediators in Ireland to maintain their annual practice certificate which should ensure a high and professional standard of service to those seeking mediation.