Mediation In Commercial Disputes

Author:Mr John Doyle
Profession:Dillon Eustace
 
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Introduction

The main purpose of this article is to discuss mediation as an alternative dispute resolution mechanism so that, at the very least, an individual, a corporation, or any other entity which finds itself on either side of a dispute will be familiar with the concept and the procedures involved.

Mediation is a process in which an impartial and independent third party facilitates communication and negotiation and promotes voluntary decision making by the parties to a dispute to assist them to reach a mutually acceptable solution.1 Mediation, as an alternative to engaging in litigation is expected to become increasingly more common in Ireland as a means of settling commercial disputes. In accordance with the rules of the Commercial Court2, cases may be adjourned for mediation on application by either of the parties to a dispute or the presiding judge may direct that a case be adjourned for mediation to take place. Notwithstanding such a direction, neither party to a dispute is obliged to partake in the mediation process; however, parties to a dispute should be aware that there may be cost implications if one party is later found to have adopted an unreasonable position in the context of considering mediation to find a resolution. In 2009, a survey conducted by the Irish Commercial Mediation Association3 reported that attempts to resolve commercial disputes by mediation were expected to double during 2010. It is also now expected with the recent introduction of the new Circuit Court Rules4 that the number and types of cases entering the mediation process as a means of alternative dispute resolution will increase. The new Circuit Court Rules contain almost identical provisions to those used in the Commercial Court whereby a judge can direct the parties to consider mediation, thus shortening proceedings and the associated costs. With effect from 1st January 2010, a Circuit Court Judge or the County Registrar at a case progression hearing may adjourn certain civil proceedings for a period not exceeding 28 days to allow the parties to use mediation, conciliation and arbitration or any other dispute resolution process to settle or determine the proceedings issue.5

While there are many variations on the mediation theme in Ireland, as a general rule, mediation is a confidential, without prejudice and voluntary process in which a neutral third party assists the disputing parties to resolve their dispute. The mediator has no role in making any...

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