Mediation – An Alternative Dispute Resolution for Businesses

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03.07.2017

Mediation – An Alternative Dispute Resolution

Alternative dispute resolution is a growing practice within Ireland. It is being used to resolve workplace disputes in particular. In many cases, mediation can be used as a first instance resolution and can be particularly successful for resolving grievances and bullying & harassment allegations.

 

The Mediation Bill 2017 is currently in legislative programme as priority legislation. The primary aim is to embed mediation and alternative dispute resolution within the Irish legal system. It will also allow courts to factor a refusal to engage in mediation into compensation awards.

 

Under the proposed bill, mediation is defined as “a facilitative voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute”.

 

The bill defines a mediator as “a person appointed under an agreement to mediate to assist the parties to the agreement to reach a mutually acceptable agreement to resolve the dispute the subject of the agreement”

 

Mediation is looking to be the go-to method for dispute resolution in not only employment matters but also family matters and civil litigation. It is a method that will be used more frequently in disputes and will most likely be the first stage of many processes.

 

The proposed bill will:

  • Introduce an obligation on solicitors and barristers to advise parties to disputes to consider utilising mediation as a means of resolving them and, where court proceedings are launched, require parties to proceedings to confirm to the court that they have been so advised and have considered using mediation as a means of resolving the dispute;
  • In family law cases, require parties to attend an information session on mediation;
  • Provide that a court may, on its own initiative or on the initiative of the parties, and following the commencement of proceedings, invite the parties to consider mediation as a means of resolving the dispute;
  • Provide for the suspension of court proceedings in such cases to facilitate the mediation process;
  • Contain general principles for the conduct of mediation by qualified mediators;
  • Provide that communications between parties during mediation shall be confidential;
  • Provide that the parties to the mediation determine among themselves the enforceability of any agreement reached during the mediation process;
  • Provide that the costs of mediation must be reasonable and proportionate and not linked to the outcome of the process;

 

Mediation is a confidential process and is based on a voluntary participation between the parties involved. The Workplace Relations Bill, which is due to come into force soon, will be heavily relying on mediation as a mechanism for dispute resolution.

 

The Health and Safety Code of Practice on Bullying makes reference to mediation and the fact it can be used as an approach to stop the bullying behaviour. It states that “mediation is a voluntary and confidential process for resolving disputes wherein the parties agree to attempt to resolve the issues of the dispute without recourse to the judgement of others with the aid of a professional mediator.”

 

Organisations should look to include mediation as a stage within their Dignity at Work policies. If bullying and harassment allegations can be dealt with at the informal stage, this is more beneficial for the parties involved and for the employer themselves. It is more cost effective than going through a costly and lengthy investigation and, if successful, will create a better working environment.

 

Graphite HRM has certified mediators from the Mediation Institute of Ireland, if you have any workplace disputes that you feel mediation could provide assistance to, you can contact us on 01 886 0350 to discuss the service. 

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