Civil and Commercial Mediation Donegal

Civil and Commercial

Commercial mediation is a flexible and cost effective way of solving almost any form of commercial dispute and can deliver results more attractive to the parties than going to court. It is fast. A typical commercial mediation lasts only a day; sometimes half a day is enough. It is confidential and, compared to litigation, inexpensive.

The parties control the outcome. They choose to be there, they have a chance to explain their point of view and it is their choice whether they settle and if so, on what terms.

Mediation is particularly useful when:

  • Initial negotiations have failed but the parties want a structured approach to resolving their differences
  • The costs of litigation will far outweigh any perceived advantage of commencing court proceedings when the value of the dispute is taken into account.
  • An independent third party can provide a buffer between the parties which is flexible, impartial and professional .
  • Invariably conflict costs money and there is a need for a quick solution
  • There is almost always an ongoing business relationship to protect

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

The Process

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.

Financial services and banking

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

Professional negligence

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.

Personal injury and clinical negligence

Those who have suffered physical or mental damage through no fault of their own have the opportunity to explain the effects they have suffered and their needs for the future. Defendants have the opportunity to learn at first hand the impact of the problem and to acknowledge it as appropriate. Both parties have the opportunity to agree a settlement that offsets the risks inherent in a trial and provides speedy resolution.

Insurance disputes

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 disputes

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.

Project mediation

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.

Costs mediation

Disputes often arise after a court case or settlement as to who should pay costs. These disputes can sour good working relationships between professionals and their clients. They can also inflame resentments between parties just when they have finally, after what may have been a lengthy and expensive dispute, settled the substantive issue. Many (if not most) disputes heading in this direction can be resolved through mediation cheaply and quickly, often in as little as four hours. This non-adversarial process can serve every party’s best interests, preserve professional and personal relationships, and help people put their disputes where they belong: in the past.

Intellectual property

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:

Frequently Asked Questions

Can my solicitor or other professionals be present?

Yes. In legal or commercial cases solicitors or other professionals such as accountants doctors actuaries’ engineers and pension advisors etc. Can be present. It may be that litigation has already started in which case solicitors will almost certainly be involved in the mediation. In any event you are encouraged to get advice from a solicitor so that you can make informed decisions. Your solicitor will give you advice on what you may achieve in a court Judgement.

The people who are present in the room during mediation are all there by the agreement of the participants. These professionals can contribute positively to the process with their expert knowledge and can help to define the pertinent issues quite quickly. This is known as collaborative mediation and is useful in ensuring that settlements stand the test of time due to the discussion of small unresolved but important issues. It is often the case that participants adjourn briefly to telephone an adviser during the mediation.

What are the advantages over going to court?
  • Going to court can be very stressful for most people. It can take a long time, sometimes even years to have a case heard in the higher courts. It is also very expensive with the fees of the solicitor, junior and/or senior barristers and other legal expenses. If you go to court and you lose, you run the risk of paying the legal fees of the winning party as well as your own.
  • Mediation is quicker, cheaper and more likely to achieve a successful resolution that everyone feels comfortable with. A mediation process could cost between €500 and €1000 depending on the participants and their particular dispute.
  • Because discussions in mediation are confidential a failure at mediation means the participants are left in the same position they were in before they entered mediation proceedings so they can still seek other remedies.
  • Sometimes the winners at court do not recover all of their costs and may run up legal bills of thousands of euro.
  • Judges can only award a limited range of remedies which the people involved may feel are not sufficient or appropriate for their own particular situation.
  • Litigation results in long term damage to relationships between people who will need to co-operate in the future e.g. parents and work colleagues.
  • Increasingly overworked courts are increasingly pointing litigants towards mediation as a potential alternative as the lists in the courts are steadily rising.
How private and confidential is Mediation?

One of the main attractions of commercial mediation as a way to resolve disputes is the fact that it is totally confidential. Underpinning this is a number of pillars. Confidentiality is key and information disclosed by each side to each other and by each side to the mediator during the process cannot be disclosed to another party. This also applies to the mediator. Courts will only depart from this principle in exceptional circumstances.

Information in whatever form relayed during mediation is without prejudice’ meaning offers of settlement or admissions made by one side are made on an off the record basis. They can’t subsequently be used in court proceedings.

Before the process starts the participants will be asked to sign a document called a Mediation Agreement stating that they will abide with the confidential nature of the process and the mediator will stress the private nature of the process to the parties at the outset. This helps create a sense of security in the process and encourage disclosure of information that might otherwise be withheld – information that might ultimately lead to a resolution.

The other side wants to have a solicitor but I do not, what happens now?

It is up to the participants to agree who they want in the room with them. Even if the other party have a solicitor you will not be disadvantaged for not having one if that is your choice as the mediator ensures that the mediation is undertaken in an even-handed manner and to prevent / stop any sort of imbalance of power should it arise.

What if I have other questions?
If there are other questions you need to ask you can contact the service by phone or e-mail or request a call-back from this site. We will only be too glad to help.