Frequently Asked Questions (FAQ)
Does Munster Mediation Services Use Qualified Mediators?
Yes! Munster Mediation is committed to excellence. Our emphasis on quality extends through mediation and alternative dispute resolution training to evaluated skill and experience. Miceál O’Hurley, the principal of Munster Mediation Services, has been a mediator for since 1987, receiving his training, education and experience in Ireland, the United States, Great Britain, Canada and through the United Nations.
Munster Mediation can provide you with qualified and experienced mediation services for:
- Marital Separation Agreements
- International Child Abduction (Hague and Non-Hague Countries)
- Dignity at Work complaints
- Workplace Grievance or Policy disputes
- Family Business Disputes
- Professional Partnership Disputes
- Labour Relations Disputes
- Commercial, Third-Party Disputes
- Property and/or Construction Disputes
- Commercial Contract Disputes
- Organisational Body Disputes
- Insurance Disputes Arising from Claims
- Specialised Mediations for Hague Convention on International Child Kidnapping
- Bullying and Harassment Claims.
Munster Mediation provides mediation throughout Ireland and internationally. Our mediators regularly conduct mediations in complex matters in various jurisdictions. Munster Mediation specialises in mediations between parties in Ireland, United States and Great Britain and most countries in the Middle East.
Our mediators are not only well educated and qualified, but we have a firm commitment to Continuing Professional Education & Development. Mediators who work through Munster Mediation are required to obtain professional education credentials from recognised institutions and complete an apprenticeship prior to mediating disputes. Continued mentoring and observation are part of our commitment to customer satisfaction and professional standards.
What is Mediation?
Mediation is a process by which parties to a dispute mutually agree to meet with a professional mediator who helps them engage in an impartial, confidential and voluntary exploration of ways in which their dispute and/or conflict might be resolved. Mediation is interest-based – that is it is designed to help parties better understand each other and avenues for resolution to which they may choose to agree upon in resolving their dispute rather than submitting it to a court of law or arbitration where a third-party decides the outcome based upon a presentation of the facts and law. Mediation is often quicker, less costly (in financial and emotional terms) and has the ability to be just as binding as a court order when the parties mutually agree to settle their dispute and sign an Agreement.
Where is Mediation used?
Mediation is practised in jurisdictions worldwide including many types of disputes. These include family disputes, workplace grievances, civil and commercial disputes, restorative justice programs, child custody disputes and many other matters.
Why Is Mediation Being Recommended to Me?
In most jurisdictions, lawyers and solicitors are required by their professional canon of ethics to advise their clients of the benefits of mediation. Mediation is not new – it is an ancient practise, recently having been given a new emphasis as an alternative to adversarial processes such as judicial determination in courts of law. The EU has developed a directive that will give strength to mediated agreements in all EU jurisdiction in an effort to reduce conflict driven cases in courts of law and to streamline the process of dispute resolution. Lawyers and solicitors in other matters, such as workplace grievances, contract disputes and other matters may also feel that mediation may offer a more advantageous way of resolving a dispute as it is less costly, emotionally draining and almost always quicker than judicial determinations.
What Are The Benefits Of Mediation?
Parties have much more flexibility and latitude in mediation than they do in courts of law which operate under strict rules of civil and criminal procedure and rules of evidence and where parties always give up their right to self-determination by referring it to a judge or adjudicator who will make decisions for them.
Speed is also a great benefit of mediation. Often, disputes can be resolved in a matter of hours or days, as opposed to months or even years.
Expense is also a benefit of mediation. While qualified mediators do charge professional fees, they are generally considerably less than those charged by solicitors and/or barristers. Moreover, as parties have control over the content of mediation and the speed at which it progresses, the burden of researching issues of law, developing lengthy and detailed briefs and filing fees in courts simply do not exist. This is not to say that mediation is a substitute to the adversarial process of law (every party should have the right to seek legal counsel and is advised to do so). Rather, mediation is another legal tool that is more private and by which the parties design a process that is more sensitive to their needs.
Confidentially is another great benefit of mediation. Parties to the mediation, including the mediator, agree not to disclose the content of matters arising in mediation. As all information divulged in mediation is Without Prejudice, it cannot be used in litigation, tribunals, hearings or other similar processes. If mediation fails, parties are not encumbered or harmed by having taken the opportunity to explore resolution through mediation.
If We Try Mediation and It Doesn’t Work – Have I Given Up My Rights?
No! Mediation is a voluntary and confidential process. Engaging in mediation and failing to resolve the dispute does not prejudice any party’s right to seek a judicial or arbitration determination should those be alternatives they would like to pursue. In fact, according to the Mediation Process Agreement signed at the beginning of every mediation session, the process and the discussions within mediation are confidential and therefore cannot be used to advantage by either party. Mediation simply offers an alternative means of resolving a dispute outside of the adversarial system of law.
Does The Mediator Decide For Us?
No! Mediation is a voluntary and confidential process in which the mediator acts impartially to help the parties come to a resolution of their choosing. Parties are responsible for the content of the mediation – mediators are responsible for the process of mediation. At no time will it be the role of the mediator to determine facts, make a judgment of law or otherwise impose their solution in any mediation. Mediators work in a “non-directive” manner, facilitating better communication and understanding between the parties, helping them explore possible solutions to their dispute and then assisting the parties in drawing-up a written Agreement that states the terms and conditions upon which they have decided to resolve their dispute.
What If We Can’t Agree At The Mediation?
Generally speaking, it is our experience that clients who consult us succeed in more than 90% of all cases submitted to us for mediation. However, there are some that do not and for various reasons. If parties fail to reach a conclusion during mediation they still have the right to resort to judicial or arbitration determination if those avenues are available to you. However, of the some 10% of cases that do not resolve during the first attempt at mediation, later attempts often do succeed as parties have had the opportunity to explore all of their options and many elect to try again to avoid the costliness and length of seeking a remedy through a court of law.
How Long Will Mediation Take?
Often, mediation can be completed in a just a few sessions. However, it all depends on the type of dispute, its complexity and the preparedness of the parties to seek to resolve their differences in a non-adversarial setting. Some disputes can be mediated in a few hours, while others, like matrimonial disputes and separations, union-management disputes, international child abduction and construction disputes often require several, sometimes shorter sessions spread out over a number of weeks. This allows the parties to keep the emotional charge of these matters from overwhelming them and facilitates continued contact with their solicitors for advice on resolving issues that arise during mediation (however, solicitors have a powerful role to play at the mediation table should parties agree to have them participate in what is called “Collaborative Mediation”).
Who Pays?
Unless otherwise agreed, each party pays their own costs of the mediation – their share of the costs. This includes their portion of the fees to Munster Mediation as well as their own legal and other professional fees, if any.
When Are The Costs Payable?
Mediation fees and a sum on account for outlays are payable in advance. If the mediation exceeds the agreed time or further outlays are incurred, a balancing invoice will be issued to the parties on when the previous arrangement for fees has been exhausted. Fees are paid in advance of any subsequent sessions.
Am I Increasing My Costs by Trying Mediation?
About 90% of mediation cases are successfully resolved allowing litigation to be avoided or struck out. A further 5% of cases are resolved soon after the mediation process. The remaining 5% which don’t achieve a full settlement through mediation, benefit from the clarification of issues allowing litigation to focus on core outstanding elements, reducing time and cost.
What Fees Do Munster Mediation Charge?
Our fee structure is designed to be the most appropriate to meet the parameters of each individual case. Please contact us to get a confidential estimate of costs. Generally speaking, our fees range from €200 per hour upwards, again, dependent on the complexity of the matters at hand. We also offer fixed-fee agreements in some matters as this can provide certainty to containing costs.
Are the Mediators Specially Trained?
Yes. The process in mediation is very different to the litigation process and to be a successful mediator you need both training and experience to bring about a successful and lasting settlement. The mediators working through Munster Mediation are specifically trained to mediate and they will have undergone specialist mediation training. They may also have become accredited to various bodies and organisations, however, accreditation is no guarantee of quality of services delivered.
How Is The Mediator Selected?
Munster Mediation will work with you to determine the subject matter and complexity of the issues and will suggest a mediator from our team we believe to be most suited to your situation. All of the parties to the mediation will have the opportunity to ask for an alternative mediator and will automatically be offered another suggestion in the event of a conflict of interest.
What If I Am Not Satisfied With The Mediator?
If you have any concerns about the mediator or how the mediation was conducted, you are encouraged to tell the mediator about your difficulty so they have an opportunity to make any possible changes. If you are still not satisfied, you are free to seek another mediator.
How Can Mediation Be Of Help To Parties Of A Conflict?
Mediators are trained in conflict resolution skills and techniques. They provide a safe, confidential environment with the expertise needed to give people the best possible opportunity to resolve their difficulties. Because of this, parties that reach an Agreement are more likely to adhere to it (this is called durability of the Agreement) than directed findings where courts or arbitrators make decisions and impose them on parties, often leaving one or none of the parties happy with the outcome. When parties to a mediation reach an Agreement, they feel ownership of the Agreement and can move forward, focusing on the future rather than dwelling on real or perceived injustices or wrongs that often are felt by parties who take part in adversarial processes like trials, arbitrations or tribunals.
How Long Does It Take To Schedule Mediation?
Mediation generally requires a short-lead times. The mediator requires only top-level information and documentation (intake information) on the issues involved to determine their general availability. The process itself is used to identify the issues, the importance of each of the issues and the way forward to solve the dispute. As such, mediation can generally be scheduled within days of the parties agreeing to undertake the process. This is especially useful for more urgent situations or last minute attempts to avoid litigation and court appearance.
Will My Confidential Information Be Disclosed To The Other Party?
Each party has complete authorisation and control of information which is shared with the other party. Where the sessions are with the mediator and one party only, mediators are trained to ensure that only the information you wish disclosed is disclosed. As the parties engage in joint-sessions they, themselves have control of the information they disclose. However, withholding of pertinent information may provide grounds to have the Agreement set aside.
If A Settlement Is Not Reached, Can The Other Party Use Any Information They Have Learned During The Process?
No! All mediation is confidential and parties are legally bound not to disclose any information obtained during the mediation process.
What About the Mediator? Can They Be Subpoenaed for Subsequent Proceedings?
No! All parties involved in the mediation sign an agreement which precludes the mediator being subpoenaed. The Mediation Process Agreement the parties sign before beginning mediation declares that they will not seek to subpoena or otherwise attempt to compel the mediator to give evidence in court as the process of mediation is non-prejudicial and designed to remain priviledged.
What About Other Parties Present – Are They Bound By Confidentiality?
Yes! All present at the mediation (advisors, colleagues, family, friends ) must also sign the confidentiality agreement before the mediation starts.
What Kind of Disputes Are Suitable for Mediation?
The mediation process can be applied in most dispute situations. It is used for resolving conflict in the workplace, between corporate entities, educational and voluntary organisations, business and professional relationships, family businesses, communities – anywhere there is a conflict.
When is Mediation Not Suitable?
Mediation is not suitable if:
- you want a point of law determined by a court or tribunal with juridical purview
- you want publicity from the proceedings or the outcome
- you are using litigation only for strategic purposes
- where there is a ‘gross power imbalance’ such a fear, physical abuse or intimidation that deprives one party of engaging fully
In What Situations Does Mediation Fail?
The mediation process with Munster Mediation has an extremely high rate of success (90%) either at or shortly after the mediation. In cases where settlement is not reached, parties may benefit from partial resolution and the clarification of the issues will help future litigation.
Why Do I Need Another Party – Can’t Our Solicitors Mediate?
Mediation is a skill which is much different to the skills of being a lawyer, which is grounded in the adversarial process. Solicitors act for their clients whereas mediators are neutral and independent of any of the parties and seek resolution by agreement as opposed to adversarial victories.
Solicitors have a very important role to play for their clients in mediation – they act as their advisor on the legal efficacy of possible solutions, they can give a clear assessment of the consequences of not settling and being with their client and advising generally is of real benefit to the process. This is particularly so in a complex dispute. Generally speaking, one cannot move seamlessly between an adversarial process and a non-adversarial process and for this reason mediation and litigation are often mutually exclusive.
May My Lawyer or Solicitor Be Present?
Yes! Depending on the jurisdiction, it is either customary for solicitors to take part in mediation or antithetical to local custom. Asking lawyers and solicitors to be part of the process is up to the individual parties and their counsel. Solicitors, especially those with experience of mediation, can add very positively to the process, especially in helping to define the issues in need of mediation.
May Other Professional Advisors Be Present?
Yes – if the parties agree to this. Experts such as accountants, doctors, actuaries, engineers and pension specialists can be present or available to be contacted by phone if a specific point arises. This type of mediation can be helpful in ensuring all of the relevant issues are resolved so that agreements are durable – that is to say lasting and not in danger of unraveling due to still unresolved issues existing after mediation. Contemporaneous participation also can speed up the resolution process.
Is Mediation Binding?
When parties reach a global settlement of all issues and reduce the terms and conditions of the resolution to writing and sign the agreement that agreement is binding in law. The agreement incorporating all of the agreed terms, when signed, becomes at that moment a legally binding and enforceable agreement.
