Mediate, rather than Litigate

Brian Morgan, Morgan McManus Solicitors, suggests that a change of mindset after the Coronavirus emergency might lead more litigants to resolve their disputes by Mediation in post COVID-19 Ireland.

On Monday morning 30th March last I opened my Outlook to view the incoming work for the week after our Taoiseach Leo Varadkar had announced on the previous Friday night 27th March 2020 that people should “STAY AT HOME” as part of the Government`s further strategy in curbing the rise of the Coronavirus. Social Distancing wasn`t enough anymore. People were only to leave their house in limited circumstances and should only go to work if they were involved in essential services. None of our generation had ever been subject to this direction. None had ever been asked to undertake such sacrifice.

The Unruly Neighbours

It was in those circumstances that I was shocked to read one of my first emails, where an unknown person seeking legal advices wanted to consult me about his neighbour dispute. Quite frankly, I decided that this one was not for me! Had this person not heard the Friday announcement? Unless his neighbour was spitting over the hedge at him, my view was that there were other people in need of more essential legal service and maybe the Taoiseach`s direction that people should “STAY AT HOME” might have been the best way of resolving that dispute for both those fighting neighbours.

Will COVID-19 create a Change of Mindset?

In a recent Article in the Guardian.com – “We can`t go back to normal”: how will Coronavirus change the world? – the writer Peter C. Baker suggests that, while World Crises can lead to negative consequences such as Governments using such events to limit Human Rights, such events can also lead to radical change for the good. Some believe that the Pandemic is a once-in-a generation chance to remake society and build a better future. The fact that everyone and anyone, even Boris Johnston (that`s my interjection!) can be contaminated by this virus might lead us to “view our problems as shared, and society as more than just a mass of individuals competing against each other for wealth and standing”. Again as Peter C. Baker states, we are not watching a movie: we`re writing one, together, until the end!

The Litigant and the unresolvable Dispute.

It has also got me to thinking that maybe many litigants (and their legal teams) need to take a look at how they are progressing legal Claims. Legal Disputes can be extremely expensive, with some cases going on in the High Court for weeks, costing often €100K / €300K, which the losing party is required to pay. While Mediation has been available for many years, is actively encouraged by Judges and it is now compulsory, under Sect 14 of the Mediation Act 2017, for a solicitor to advise his client in advance of issuing Proceedings to consider Mediation, many Court Disputes are still going to Court. Why? Because one Litigant is not going to let the other Litigant get the better of him; and wouldn`t it look weak to suggest Mediation?

Mediation does work!

I have recommended Mediation in a number of cases recently and particularly in 2 Cases where there was a general feeling that the cases were too difficult and would never settle. You know what? Both cases settled, and with a substantial saving on Costs! The cases were also resolved much earlier; thus helping both parties to move on with their lives. Both cases however had very good Mediators!

What is a Good Mediator?

A Mediator must be trusted by both sides. A good Mediator inspires trust. They are empathetic to both party`s case and respectful. They are prepared to put in the work and dedication to achieve a positive result (this can involve a 12 hour session, but what is 12 hours to a Litigant compared to years waiting for a Court Hearing and the Court Hearing going on for days?). They are able to analyse the problems and provide possible solutions to the parties. Most importantly, they are impartial and are seen by both sides to be so. That way, both sides will trust the Mediator to assist them in bringing about a resolution to the dispute.

Most important part of Mediation

The most important part of Mediation however is not that one side wins at the expense of the other, but that both sides win! Each get a resolution to the dispute and come to understand the other party`s perspective to that dispute and maybe why the dispute arose in the first place. There is no Appeal, as there is no reason for an Appeal: both parties have moved on!

The New World

Maybe in the New World post COVID-19 people will realize the importance of resolving disputes, as opposed to fighting disputes. Maybe, in the spirit of the words of Peter C. Barker that we are in this movie together until the end, parties might look for a resolution, as opposed to finding fault. I know that this is a lot to ask, but when we come out through the other end of this Coronavirus the world could be a very different place.

And maybe our 2 neighbours might have resolved their dispute!

For further information on Litigation and Mediation you should contact:
Brian Morgan
Morgan McManus Solicitors

Web: www.morganmcmanus.com
Email: bmorgan@morganmcmanus.ie
Ph. No.: 00353 47 51011