In recent times the word mediation appears more regularly in articles and on the news. We are all familiar with Trade Union disputes being locked in a "Mediation" to attempt to resolve some employment issues that have arisen between the employer and the employees. Here in Northern Ireland probably the most famous mediation ever undertaken was the process that produced the Good Friday Agreement. It is often commented upon that Senator Mitchell (both a lawyer and an experienced Mediator) used all his mediation skills in order to try and seek some sort of consensual agreement which to many seemed virtually impossible.
Here at Murray Kelly Moore we are committed to the new era of Mediation. Our Mr. Simon Murray has recently obtained a Certificate in Mediation through an SLS Course at Queen's University Belfast. Our firm is aware that increasingly more legal disputes will be resolved, not through the due process of the Courts, but by a Mediation. There are many advantages to this and obvious ones are speed, savings of costs but also the preserving of the relationships between the parties. Mediation has got one major advantage in that as it is a voluntary process and if it succeeds it therefore can have a great impact in maintaining the relationship between the parties whereas litigation is much more prone to antagonising the parties and damaging the relationship between the parties as the solicitors often adopt a more point scoring approach.
It is evident from recent changes in the Courts procedures and in particular comments made by the judiciary that they feel Mediation should be tried first. Ultimately if the parties refuse to consider Mediation and continue to remain entrenched in their views there could be penalties for such an attitude. Therefore we feel that we owe our clients a duty to be able to encourage and advise them with confidence and assurance through the whole process of Mediation. Our involvement will be to assist and advise throughout the Mediation and provide encouragement and support in a genuine attempt to try and reach accommodation between our clients and the other side.
We are also prepared to act as Mediator if we are selected by parties to attempt to mediate a dispute. If we are selected to act as a Mediator then we will do this impartially and in accordance with the ethos of the voluntary Mediation process.
Previously there was a conception that Mediation was for weak parties and there was a sense that a party referring a matter to Mediation was in desperation. With the change in attitude in the judiciary and a greater belief in the merits of Mediation this preconception has now changed. It is this firm's view that mediation is now considered to have implications both in costs and in the ultimate outcome of the dispute. There is a clear undercurrent in relation to recent developments that indicates that the party that refuses to mediate, without good reason, could ultimately end up paying costs. There may even be a decision where if a party refuses to mediate and is successful in the ultimate litigation, they still may face a cost implication. The golden rule of costs following the event, ie. the winner of the litigation obtains an award for the payment of their costs may change some time in the future as there has been in some of the recent decisions an indication that this may happen. Costs have become such a considerable part of litigation, that this shift in emphasis from the judiciary, will mean that in the next number of years, there will be a rapid increase in disputes being referred to Mediation.
Irrespective of the cost issue, there are lots of other positives in relation to engaging in the Mediation process. It gives both sides the opportunity to step back and be more objective in connection with their dispute. It genuinely gives them an opportunity to reconcile and accommodate. I think the fundamental reason for the process working is the fact that it is voluntary. There is no point scoring, there is no clashing of heads, you can walk out if you wish. If the parties are correctly advised of the whole concept of Mediation and take up the challenge of the same, there is every chance that they can resolve their dispute and maintain their relationship with the other side.
We at Murray Kelly Moore are excited about these new developments and the idea that mediation will become more common place than it has been. As we build our experience in advising clients in Mediation and also acting as a mediator we think our firm can provide all the necessary advice that is needed. Also as we are committed to the process, we believe our firm is attempting to act in our clients' best interests irrespective of any cost implications. In other words we want our clients to reach the best solution to their dispute irrespective of whether we gain from this result or not. We believe that if our clients resolve their dispute through Mediation and not through a Court process they will realise that we have not only got them what they have been looking for but also have saved them costs. This is what we strongly believe is the duty of a solicitor when acting for their clients in a dispute.
If you have any current disputes that are log jammed and you are frustrated by current litigation please do not hesitate in contacting us for advice and assistance in relation to trying to resolve the difficulty by way of a Mediation.