Mediation in Litigation – this article looks at whether mediation can work in litigation cases.
The Courts system in Ireland is set up so that most cases settle. Simple road traffic accidents or personal injuries are not going to mediation in the system at present. This is for a simple reason – the Solicitors on both sides are usually experts and can assess the value of cases quite quickly. They are also expert negotiators and can usually agree a result between them that leaves them both sufficiently unhappy to indicate that the final figure is fair.
The proper functioning of the system requires is dependent on cases settling early, or where they’re more complex, getting reached in the lists for hearing and then settling when maximum pressure comes on both parties. If a case runs, it usually clogs up the system and causes delays for the many other cases listed behind it, as a result of which those cases do not get reached and settled that day and usually not for many months.
The upshot of this is that certain types of cases, which experience shows are hard to settle – such as family disputes, bullying and harassment cases, land disputes, probate disputes and some complex commercial cases – are difficult to settle and have a much higher percentage of cases going for full hearing. These difficult cases therefore get separated into different lists so as not to interrupt the smooth running of the more efficient cases. These “hard settlers” are then in long waiting lists behind other similar cases and as a result waiting lists are long and hearing dates far away.
Parties who feel it is necessary to run cases, and cases that are necessary to run, therefore end up with very significant delays and legal bills and sit in separate Court lists behind cases of a similar ilk that are often hard to settle exacerbating the delays and the legal bills. The extremely high cost of running cases is another cause of concern with the Courts system. All disputes can be expensive, but the hard settlers are more so. Solicitors will usually take on a straight road traffic accident on a “no foal no fee” basis, but they are unlikely to do so where the case is one of the more complex types of litigation that often do not settle or at least they tend to be paid by individuals or from the sale of property at the end of the case rather than insurance companies with huge financial reserves.
So in some respects, the Courts system is broken. That opens the door to alternative dispute resolution methods such as mediation. The benefit of mediation is that parties with legitimate disputes that need to be aired get the opportunity to prepare for their “hearing day” and to get across the reasons for their grievance. As a result of this interaction the parties can find it much easier to reach a compromise. A legal dictum is audi alteram partem, or “hear the other side”. The practice is that once a person has been heard and their grievance aired and listened to, they are often more open to then looking at the problem and discussing how best to reach a compromise.
Preparing for a mediation is very much like preparing for a Court hearing. You make sure you have all the reports and documents that would be needed for Court and prepare your statement of facts setting out your case. This does not have to take years as it does in a Court process. Instead it can be achieved in days. The time and effort saved by front loading the mediation process is enormous. Mediation often happens either at the start of the litigation process or near to the end. Obviously, engaging at the start is more cost efficient and saves a huge amount of frustration and resentment. It should also be significantly cheaper than litigation in nearly every case. Here’s where to find a mediator.
It is to be hoped that those advising Defendants will come to realise that mediation works and is an excellent solution for those cases where the Courts system will only serve to add to the animosity between the parties and cause delay and expense before finally having a day in Court.
I hope this article has been helpful. If you have any queries regarding personal injuries claims please contact us by phone at 061 501100, email Thomas Dowling, personal injuries partner at [email protected] or get a call back by completing our contact form so we can provide you with further information or advice.