Tipp FM Legal Slot – 5th August 2014 – Alternatives to Court – Mediation
On Tipp FM, John M. Lynch, Solicitor, spoke to Seamus on “Tipp Today” about ways to resolve disputes outside the courtroom setting and in particular how mediation can be used as a way of dealing with conflict.
Listen to John’s discussion:[soundcloud id=’161797975′]
There is a growing belief that litigation – the court system – is not the best way to resolve disputes.
People prefer to avoid court.
This means that we have seen a huge growth in alternative dispute resolution, which is an alternative way of resolving disputes instead of going to Court.
When parties separate, there is a fall out from the separation. Maintenance must be dealt with, care arrangements for the children must be dealt with and the division of assets has to be sorted out.
The parties can go to Court or they can engage in ADR
If parties wanted to avail of alternative dispute resolution (ADR) what are the options?
There are many forms of ADR:
- Structured negotiation
- Collaborative law
Typically in Family law the most popular form of ADR that we experience is Mediation.
Why would a Solicitor attend a Mediation?
Often it is appropriate for parties to have legal advice before and during mediation. A mediated agreement will usually involve technical arrangements to be drawn up and/or entered into thereafter -to give full legal effect to the couple’s own agreement. Eg transfer of properties, pension adjustment orders etc. It therefore makes sense for people to have their Solicitors available to them, for the conclusion of the mediation process and agreement.
We have been involved in cases where by having the Solicitors available on the day for the mediation the issues between the parties have been resolved through the mediator and the solicitors were then available to legalise the agreement.
What are the main benefits of choosing ADR to resolve a dispute?
ADR, instead of Court, is:
- Less stressful
- More confidential
- More versatile
- Less costly
- Better for maintaining relationships as most people reach a mutual decision.
What exactly is Mediation?
Mediation is not counselling. It is not attempting to patch up a relationship but instead looks at what needs to be sorted out now the relationship has ended.
There is no legal advice element, so while mediators may be able to help parties reach agreement on sticky topics a family solicitor will still be needed to draw up any documentation to formalise the arrangements.
It is based on the principle that people can resolve their own disagreements if given the right encouragement.
Mediation is a non-adversarial method of dispute resolution, which means that the people involved own the resolution. It is a negotiation between the people involved in the dispute instead of negotiation between their solicitors and barristers. Mediation facilitates the wishes of all parties involved in order to produce an appropriate result.
What role does a Mediator play in resolving disputes?
A mediator is not the decision maker but an independent, third party to the process.
The function of a mediator is to facilitate a resolution between the parties, as such the mediator is a referee.
A mediator does not judge who is right or who is wrong, but works with parties to help them arrive at a solution to satisfy their interests.
The mediator in a case will always remain impartial and act for all parties objectively.
How exactly does Mediation work?
The mediators function is to help an agreement between the parties, not to decide the outcome for them. Most of the time there are two separate rooms for the parties and the mediation is carried out in private & confidential discussions with the mediator -the mediator coming and going.
What should people choose Mediation to resolve a dispute?
Mediation brings the couple together round a table right from the start and you can nip in the bud any misunderstandings or assumptions.
It can be used to head off a dispute before it starts or to resolve a dispute that has already started.
Mediation provides a confidential, quicker, more cost effective and more satisfactory outcome than going to Court.
An outcome can be achieved in the course of a DAY! It may take months and sometimes years to resolve a disagreement in court, whereas mediation can be paced according to the parties’ needs and schedule
For many couples they feel mediation puts them in control of their own destiny with the responsibility firmly on them to find solutions that work for their family unit
Particularly where there are children involved and the parties will have to face each other at communions, confirmations and weddings, parties are more likely to preserve an amicable relationship in the future,
Communication is key to a good marriage – and a good divorce.
Can someone be forced to attend mediation?
No, Mediation is voluntary and requires both parties agreement to the make a final resolution.
At what stage after a break up can parties avail of mediation
At any time but I think that timing of mediation is important. Often in a marriage breakup, there is one party who is shocked, furious or vengeful. This does recede over time especially when we explain how much revenge can cost! So pursuing mediation immediately is not necessarily the right time for both spouses.
What advise would you give someone going to mediation?
There are lots of things you can do to help yourself, like ensuring you have all your financial information to hand, genuinely do your best to reach agreement and putting the children’s wellbeing at the heart of any discussions that relate to them. Remember though, that a divorce does not have to be a battle. The relationship may have broken down but that does not mean you cannot both behave like adults to find a pragmatic solution to sorting out the details before moving on with your lives.
For further information contact John M. Lynch, Solicitor, at [email protected] or telephone (052) 6124344