Civil and Commercial Mediation Donegal

More than 85% of commercial mediations settle successfully on the day. Settlements reached by the parties in mediation are on the terms most suitable to the parties themselves that invariably are not always available from a court and which respect the parties’ commercial interests, not just their legal rights.

It doesn’t matter if you’re a multi-national corporation, a tech start-up or an SME: nobody welcomes litigation. Increasingly, once the strengths and weaknesses of respective positions are understood, businesses are recognising that mediation can resolve destructive disputes without the drain on time and resources that going to court can involve. Amongst other things, the process also provides:

• a confidential environment where senior executives can ensure their concerns are understood
• a forum for principled negotiation with the help of a mediator where the outcome is not prescribed by the legal issues
• the potential for restoring or preserving commercial relationships
• The chance of an early settlement with savings of costs and management time
• A confidential settlement, protected from the public scrutiny of legal proceedings.

The following areas are typical in commercial Mediation:

• Financial services and banking
• Professional negligence
• Personal injury and clinical negligence
• Insurance disputes
• Insolvency
• Project mediation
• Costs mediation
• Intellectual property

When the mediator is appointed, they will contact each of the participants individually in a pre-mediation session to explain the process and to get an overview of the issues. The mediator will request the parties sign up to a mediation agreement. This explains the mediation process, as well as setting out that all discussions are totally confidential and are treated as without prejudice and are in a genuine attempt to settle the dispute. This means that anything discussed during the mediation cannot then be used as evidence in any future legal proceedings.

The mediation joint session usually takes place off-site at a neutral venue and with the mediator and all the parties present. A virtual service is also offered if parties cannot attend for healthcare or other reasons if this is suitable to the dispute itself.

During the mediation a separate room can be made available to allow the participants an opportunity to talk privately with the mediator, themselves, or their legal representatives. All information given to the mediator during the mediation’s separate discussions will be kept confidential, unless express permission is given to offer it in the interest of progress.

The mediator often goes back and forth between the parties to seek an agreement between both sides before bringing both parties back together.

For institutions who would otherwise expend substantial sums in legal fees, mediation is often the best option in this sector. Some of the cases under mediation  in this area would include:

• Pensions and Investments:
• Banking:
• disputes between borrowers and lenders, including disputes as to authority to lend on properties jointly owned / occupied by spouse
• mortgage default and foreclosure
• disputes arising from mergers and acquisitions
• consumer credit disputes
• negligence disputes
• disputes as to regulatory compliance within the financial services field, whether IFAs, banks or other financial institution
• market abuse disputes

Many professional negligence cases are brought by private individuals against their professional advisers. Typical cases might involve property surveyors and valuers, legal adviser’s independent financial advisers, architects and other building professionals such as quantity surveyors, engineers and project managers, insurance brokers, accountants, independent financial advisers and many others. Lay claimants feel alarmed at the costs as the process continues, especially if, as is usually the case, expert evidence is required from one or more professionals. Mediation gives them the opportunity to engage at close quarters with the issues and the personalities. They are able, if they wish, to tell their story to the defendants, both the insured and the insurer. Describing at first hand the impact the alleged negligence has had on their lives can allow the defendants to measure the impact the claimant’s evidence is likely to make at trial and adjust their risk analysis if appropriate.

For defendants in such cases, the opportunity to meet and hear from the claimant, their legal team and possibly their experts is valuable, as is the chance to speak directly to the claimant, unfiltered by the legal team. Where liability is admitted, but there is disagreement on causation and quantum, there can be value in acknowledging the failure, possibly even apologising if this is likely to improve the chances of settlement.

The time, money and effort saved by successful mediation means that In place of strife mediators are frequently asked to address a variety of disputes in the insurance market including:

• coverage issues
• policy wording disputes
• policy avoidance issues
• breach of warranty or breach of condition
• product liability claims, including product safety and recall
• professional negligence, especially of insurance brokers
• property damage
• business interruption
• environmental and pollution
• energy and aviation
• claims under defective title and restrictive covenant insurance policies directors’ and officers’ claims

Insolvency can give rise to many and varied causes of action against many and varied members of the community including individuals banks and businesses.

Mediation provides a cost-effective, speedy and flexible tool for the negotiation and resolution of insolvency claims.  Commerciality and pragmatism is at the core of the process.  Insolvency claims often throw up unique situations can be hugely complex and are often carry with them high emotion.  However these are just the kinds of situations where the involvement of a neutral mediator can prove extremely beneficial with the flexibility and cost effective nature of the process.

In any large project it is inevitable that conflicts will emerge whether it is a construction project or commercial collaboration. Prevention of disputes may not be possible but it is possible to manage conflict better, to prevent it leading to delays, increased costs and working relationship breakdown. In this scenario Mediators are often brought into the project and stay with it to maintain continuous contact with the parties. The mediator aims to facilitate communication and cooperation in anticipation of stepping in to deal early with any incipient disputes. There are huge financial contracts and work agreements involved which are ripe breeding grounds for disputes between employers, contractors and professionals. Most often the following disputes arise:

• Time and delay claims
• Liquidated and ascertained damages
• Payment and defects disputes
• Contractual differences and breaches
• Sub-contractor, consultant and supply chain issues
• Project management issues
• Design failures
• Cost-Effective Construction Mediation
• Financial disputes

Mediation is a low cost alternative to court, and is also time-effective, saving valuable resources which can be channelled back into the business at hand.

Mediation is particularly effective in the resolution of IP disputes because of the greater range of solutions available than if before a court, the ability to deal with common issues across several jurisdictions, as well as the low cost and rapidity of a solution. Disputes arise in the following fields:

• Trade Marks and Passing off:
• Infringement / validity
• Royalty / account of profits / damages
• Copyright:
• Software code
• Design right:
• Patents:
• Breach of confidence:
• Database rights:
• Competition:
• Domain names: