ANALYSIS:THERE IS no doubt that Ms Justice Harding Clark's intervention in proposing mediation led to the solution of the dispute between the Kenny and Charlton families over Gorse Hill. This was warmly acknowledged by counsel for the Charltons, Eoin Fitzsimons SC, yesterday.
He also drew attention to the fact that mediation is now often referred to by Mr Justice Kelly in the Commercial Court, and is therefore increasingly used there. This is part of a growing trend to use alternative forms of dispute resolution instead of litigation, which is both highly expensive and emotionally draining.
It was also acknowledged yesterday that the case was set to run for four or five weeks. The combined legal costs were likely to run into seven figures.
It would be hard to imagine a higher profile lawyer to choose as a mediator than Rory Brady SC. The former chairman of the Bar Council has recently served as the legal adviser to the Government in the post of attorney general.
Coincidentally, Brady's successor as chairman of the Bar Council, Turlough O'Donnell SC, recently wrote in The Irish Times that mediation may be a better way of resolving certain types of disputes than litigation. He instanced disputes like right of way disputes, family disputes and commercial disputes. Disputes over land would also fall into this category. "The function of the mediator is to understand both sides," he wrote. "The mediator is able, under the protection of confidentiality, to hear both sides and to form a view as to the source of the conflict. If what is actually driving the dispute can be identified, then it might be possible to resolve the conflict."
Mediation is most associated with family disputes, and the State provides a Family Mediation Service through the Family Support Agency. However, mediation is also increasingly used in commercial and employment disputes, normally with the assistance of lawyers.
Karen Erwin, president of the Mediators' Institute of Ireland, (MII) and a specialist in commercial and employment mediation, said that recent research showed that 75 per cent of mediators reported that their cases were settled on the day of the mediation, with a further 13 per cent settling shortly after - a settlement rate of 88 per cent.
In order to be a member of the institute, one must have undergone a recognised training course, participate in continuing professional development and adhere to its code of ethics. It is not necessary to have a legal or other professional background previously. Not all mediators are members of the MII. Indeed, it is not necessary to be accredited at all to describe oneself as a mediator, and the profession is unregulated. This gives rise to serious concern among both legal practitioners and most mediators.
Mediated settlements are also not, of themselves, legally binding. However, with increasing professionalisation of the discipline, there is a move towards parties undertaking to be bound by the outcome of the mediation, if there is a settlement.
In yesterday's settlement the parties sought, and obtained, liberty to apply to the court to enforce the terms of the settlement if the need arose.