Dispute Resolution

At any stage of a dispute, the parties can directly negotiate with each other. However, a solicitor from one party cannot negotiate with another party, unless sanctioned by the other party’s solicitor. It can be particularly useful for one party to talk direct to the other party if it is felt that there is an obstructive lawyer, be it a solicitor or barrister, representing that other party.

• In essence, Mediation is assisted negotiation.
• It is completely consensual. If you do not want to a dispute to be resolved through Mediation, you can opt out of the process at any time.
• There are a number of government-sponsored mediation schemes such as dealing with equality disputes, landlord/tenant disputes and personal injury claims.
• If the parties agree in principle to the appointment of a Mediator, they can either agree a person themselves, or ask a body like the International Centre for Dispute Resolution based in Dublin, to appoint a Mediator.
• Where a Mediator is appointed, that person will obtain a short case summary from each party and then arrange to meet with both parties in an effort to get the dispute resolved.
• The Mediation itself will initially involve a face-to-face meeting between the parties, chaired by the Mediator, where the parties themselves (or through their solicitors if they so wish) can give their side of the dispute.
• It is the parties themselves, encouraged and cajoled by the Mediator, who will craft a resolution to their dispute, if a resolution is achievable.
• At the outset, the parties agree to share the costs of the Mediator, or one party agrees to bear that cost.

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Choosing arbitration as the preferred method of dispute resolution effectively excludes recourse to the Courts or litigation, except as an aid to the arbitration or in very limited circumstances.

Advantages of Arbitration

• It is private.
• Usually you do not have to spend time and money on educating the Judge.
• If you want to enforce a decision in another jurisdiction, you may be better off enforcing an Arbitration award rather than a Court decision.

Disadvantages of Arbitration

• It is probably as expensive as litigation.
• While it has the potential to be expeditious, it also has the potential for causing delay, particularly if the Arbitrator is not on top of the job.
• There is the potential for delaying domestic arbitrations, especially under the case dated procedure provided for in Section 35 of the Arbitration Act 1954. However, with the recent advent of the Commercial Court, such applications can be heard in a matter of days.
• There is a feeling abroad that if it is necessary to involve a Third Party to adjudicate on a dispute, one might as well go to the Courts.
• Also, the Commercial Court is capable of getting disputes resolved in a number of months and that is a far cry from the normal judicial process in the High Court where it can take up to two years to get a case to trial.

The main method of dispute resolution deployed in Ireland is litigation. Developments impacting on this include the development of the Commercial division of the High Court - The Commercial Court - and the increasing recognition of Mediation as a method of Dispute Resolution.

Parties can opt for the jurisdiction of the Commercial Court but they must first make an application to do so. Disputes usually have to have a value greater than €1 million before the Commercial Court will agree to hear the case. Once a formal application is submitted to have a case accepted into the Commercial Court list and the application is granted, the case will then be effectively case managed to a conclusion.