The Mediation Act 2017 provides an opportunity for the legal system to become fairer, to reduce costs massively, to significantly reduce the backlog of cases before the courts and, just as importantly, says Mr Holohan, preserve familial relations before bonds are lost forever. Business is also a huge winner, he adds.
CIArb Ireland has been campaigning for the passage of the Mediation Bill since making submissions to the Oireachtas Justice Committee in 2012.
The act now provides a statutory basis for the delivery of mediation services. Before a dispute ever ends up in court, both parties have a chance to settle their differences in a less intimidating setting and with a fraction of the costs.
There is nothing to lose, according to Mr Holohan — if mediation does not work, the opportunity for your day in court stays intact.
“A court case which can take weeks and weeks, if not months sometimes, can be reduced to more of something which can be sorted out within a day.
“From the point of view of costs, you are talking about a huge differential.
“Mediation between me and both sides including the lawyers brings down costs to a few thousand of euro— you wouldn’t get a junior counsel for that in the High Court.
“I’m a director of 19 companies. I can tell you mediation makes business sense. From the lawyers’ point of view, they are gatekeepers to the process in one sense, and they are afraid sometimes if they don’t go to court, they are not going to get the big fee.
“The reality is that most people cannot afford the big fee to go to court. What lawyers needs to understand is that if they can provide a solution to the problem of the client in six weeks rather that six months or even years, they are providing a service for which they can get a very good fee for a small amount of work,” Mr Holohan said.
Solicitors and barristers now have a statutory obligation to advise their clients of the mediation option and provide information on mediation services, including details of mediators, information about the advantages and benefits of mediation, information on confidentiality obligations and the enforceability of mediation settlements.
Judges may also adjourn legal proceedings to facilitate mediation. The act also provides for the regulation of mediators, the setting of standards and establishing codes of practice. Mediators will have to provide people using their services with details of their training, qualifications, and experience.
Mr Holohan said: “I spent 30 years worshipping from the church of litigation before converting to the one true faith of mediation. I’m a great advocate of mediation, not just as a person but as a business person.
“With mediation you identify what you need, rather than what you want, and you work from there.
“The entire process is confidential. It’s off the record, and the court won’t hear about what has gone on — in other words, it’s not prejudicial. Sometimes people just want to be listened to.
“One of the first steps in mediation is getting one side to understand the other side, and what is making them tick. When they understand where the other side is coming from, once you get that communication going, then you can look at coming up with a deal.”
The mediation process will typically involve a relaxed setting such as a hotel where the parties to the dispute are each in their own room with their legal representatives, while the mediator shuttles back and forth, trying to latch on to areas of common ground that both sides can work with. Invariably it works, said Mr Holohan.
“Anecdotally, it is accepted that up to 90% of mediation is settled on the day. Of the remaining 10%, a number of disputes are settled in the aftermath, or at least the sticking
issues are narrowed down to go forward. There is nothing at all to lose, but much to gain.
“If you want to take a case to the High Court, to have a senior counsel, junior counsel, and a solicitor, it’ll be a minimum of €50,000. Similarly for lawyers, they have to work on a no-win, no-fee basis. That’s not a great way to run a business. Mediation can work for all.”
Mr Holohan said the act is one of the most significant in his legal career, but only if it is seized upon.
“There are thousands of mediators in the country, a cohort ready to go. You have commercial mediators, family law mediators, family mediation in relation to inheritance, workplace mediation — you name it.
“It’s one of the most exciting opportunities we have; it’s now a question of being aware of that opportunity and availing of that opportunity. Just go to www.ciarb.ie and you can take it from there.”