Agricultural Consultants, Agri Environment and Accountancy Services

Welcome to the new Mediation and Conciliation Services Division of the Rea Group.

The Rea Group has put in place a number of accredited mediators from a wide range of
disciplines including the law, employment, agriculture, property, taxation and
construction/engineering.

Additionally, the Rea Group has formed an alliance with a specialist Dublin mediation
firm, Friary Law/ADR Group, for the purpose of providing the best possible
comprehensive mediation service to the rural community nationally.

WHAT IS MEDIATION

Mediation is a structured process whereby two or more parties to a dispute attempt by
themselves, on a voluntary basis, to reach an agreement on the settlement of their
dispute with the assistance of a mediator. The mediator is not a counsellor or advisor but
merely facilitates the parties. The mediator is not a judge or arbitrator and does not
impose decisions. Conciliation is very similar.

WHAT TYPES OF DISPUTES ARE SUITABLE FOR MEDIATION

Differences of opinion within farming/business families, irritable workplace problems
and many other types of cases involving disputes, disagreements and differences of
opinion can be very suitable for mediation. Examples are as follows:
  • Where problems arise amongst a farm or business family in connection with the division of the farm, or business on the retirement of the owner, or death of one or both parents.
  • Discussions regarding the formation or dissolution of a farm or business
    partnership.
  • Disputes or disagreements arising from wills and intestacies
  • Debt resolution where the parties agree to mediate
  • Disputes between rural dwellers and state agencies where provision is made in the relevant legislation for mediation
  • Family disputes arising from marriage or cohabitation breakdown
  • Land title disputes
  • Nuisance and trespass disputes
  • Disputes within and between sporting organisations
  • Community and neighbour disputes
  • Workplace disputes.
  • Landlord and tenant disputes.

All of these will be catered for by the Rea Group.

It is important to note that for mediation to be successful, there has to be active genuine co-operation by all parties. All parties have to want it to succeed and they have to completely and in good faith engage in the process.

WHY MEDIATE

In most cases, agreement is reached in a day. (Family breakdown cases tend to happen over several shorter sessions with a few days or so between each session.) There is a huge saving in costs. Often, and even more importantly, personal relationships, family relationships and business relationships are preserved and even enhanced. Mediation is entirely voluntary and happens at a place and time that suits the parties. Mediation involves certainty, confidentiality, privacy and finality. It allows for an apology to be given without legal rights being affected as the whole procedure is 'without prejudice'. Problem-solving is the objective of the negotiation rather than the purely competetive approach which is typical of negotiation at arbitration or court proceedings. Phrases such as "bottom lines" and "final offers" have no place in mediation. What will bring gains to ALL the parties is what is important.The objective is a resolution focussed more on the interests of the parties rather than solely on their rights. It focusses on the future rather than the past. The ultimate agreement is a resolution worked out by the parties rather than one imposed on them by a court or by an arbitrator. Even if complete resolution is not achieved immediately, it often happens that a lot of issues are resolved and those that are left outstanding are clarified and often resolved shortly afterwards.

IMPORTANT ASPECTS

1. Agreement to Mediate Before mediation commences, an agreement to mediate is signed by the parties and the mediator. This deals with 'the ground rules'. These generally include:

(A) Confidentiality:
The process will occur and be conducted in a strictly confidential manner. Nothing discussed or written down will be disclosed outside the mediation unless there is a legal obligation to do so such as information that may turn up relating to serious criminal activity, child abuse etc.. Also there is an exception in cases where it transpires in mediation that somebody involved in or connected in some way with the mediation process may be in danger of harm and the mediator has an ethical responsibility to break confidentiality. Subject to these very limited exceptions, total confidentiality is guaranteed. This includes the fact that everything told to the mediator within the mediation is confidential between the party giving that information and the mediator unless the mediator is authorised to give any of it to the other side.

(B) "Without Prejudice":
The same legal privilege governs the process as governs any normal settlement negotiations. Whatever is stated or written during the process cannot subsequently be used as evidence in a court case. People's legal rights and remedies are not affected by engaging in the process. Nothing said or written can affect in any way the legal rights or remedies of either party. The mediator will not be called as a witness to testify in relation to what the parties stated at the mediation relating to the issues involved save for such matters as the parties had previously agreed could be disclosed subsequently. These could include for example, in the case of family mediations, a written financial summary if one was written down and signed.

(C) Voluntary participation
The prior consent of both parties to a dispute to engage in mediation is absolutely necessary. Parties must participate in good faith and with the intention to make a genuine effort to resolve their dispute. However, it is open to either party to withdraw from or suspend the process at any time or for any reason. The Mediator also may suspend or terminate the mediation if the mediator feels it necessary without giving a reason.

(D) Conciliation
The parties at any stage may request the mediator to take on the role of conciliator. There is very little difference between a mediator and a conciliator and it is very difficult to define the difference. A conciliator will be authorised to go beyond merely facilitating the parties in their efforts towards a resolution. A conciliator will 'nudge' the parties a little more by doing such things as offering suggestions and proposals.

2. Final Agreement
While the mediation process is private and confidential and without prejudice, if total or partial resolution is reached, committed to writing and signed by the parties as legally binding, that agreement becomes legally binding. Unless this happens, nothing is binding.

3. Role of Lawyers
As already stated, the mediator is not an adviser of any kind. While it is not necessary for the parties at the mediation process to have their lawyers involved and present, lawyers can fulfil some very valuable functions. It is always most advisable that any person entering into any type of binding legal agreement would have proper legal advice before doing so and this also applies to the initial agreement to mediate which sets out the ground rules and to the final mediated agreement – and indeed to any financial summary. Lawyers can advise parties in relation to the costs of court proceedings and also as to the likely best and worst outcome should the matter end up in court. They can advise in relation to all legal issues concerning the dispute in question such as relevant family law legislation, matters of title, employment rights and taxation implications. Apart from that, lawyers can assist parties during the actual process of mediation. For instance, the lawyer trained in mediation and having the right attitude will understand and prepare the case and assist with communicating and negotiating – in a spirit of problem solving rather than of seeing the process as a competition. The lawyer can help the party to decide when the negotiation should be lawyer led and when party led. The lawyer can be available at all times to give advice where required by the party in question. Lawyers need to realise that there is an ever increasing range of legislation incorporating compulsory reference to mediation. The passing of the Mediation and Conciliation Bill which is likely to occur early in 2012 will basically entrench mediation in the Irish legal system.

It is therefore vital for lawyers to be aware of and to understand the whole concept of mediation and to be in a position to explain it to their clients and encourage them to participate where appropriate.The Rea Group in association with Friary law can equip solicitors quickly and easily when necessary with sufficient basic information to enable them to deal with their role in relation to mediation.

WHAT IS THE PROCEDURE

The procedure is straightforward. Broadly speaking, if a person or his or her solicitor feels that mediation will assist in that person's difference of opinion, negotiation or dispute, the solicitor or the person will make contact with a mediator or mediation organisation who will inform them of the procedure but will strictly not discuss the issues in dispute with them. The mediator or that party may then make contact with the other party or parties inviting them to mediate. Alternatively, solicitors for opposing parties before commencement of, or during litigation, may have agreed to mediate. A judge during the course of litigation may have adjourned a case to facilitate mediation.

Once mediation has been decided on, and a mediator or a mediation services provider (such as the Rea Group) has been chosen, the mediator or mediation organisation will case manage the case having spoken to the parties. This process involves the necessary preparation for the actual mediation. It includes everything from assessing and organising the most suitable venue acceptable to both sides to drafting and having signed the preliminary agreement to mediate which contains the ground rules for the mediation. The issue of costs appropriate to the dispute or disagreement in question is discussed and agreed. Also it can include the furnishing of any necessary paperwork to the mediator such as pleadings where litigation has commenced or otherwise a preliminary statement of the issues.

In the case of the Rea Group, the case management is done by Friary Law so that the actual mediator is in a position to just come along on the day with no risk of having been 'tainted' in any way beforehand. Furthermore, due to the fact that it is of course desirable that the mediator has a background knowledge of the type of dispute - employment, construction etc. - and because Rea Group has a range of mediators with various skilled backgrounds, it becomes possible for the disputing parties to have a mediator, or possibly even two co-mediators, who will provide the best possible service in the particular circumstances. Once everything for the mediation is organised and in place, the parties, with or without their solicitors, and the mediatior turn up on the day and proceed in accordance with all the pre-arranged details. Each side will have their own comfortable room, toilet facilities, access to snacks etc. The mediator will have private sessions with each side or see both sides together as and when appropriate – all the time 'nudging' them towards a resolution.
When dealing with the Rea Group, the first thing is to phone Elena on 062/52166 or email her at info@reagroup.ie.

REA GROUP MEDIATORS

Oliver Ryan-Purcell an accredited mediator, is a solicitor in private practice who has specialised in Agricultural Legal matters for the last twenty years prior to which he worked in general legal practice. He has joined the new mediation division of the Rea Group.

Richard Rea is principal of the Rea Group and has been involved in a wide range of cases over 25 years involving disputes where he has acted either as a professional witness, adviser, negotiator or mediator. In addition to the above mediators the group also has other mediators as set out at the About page.

 


Contact
Richard Rea richard@reagroup.ie
086 6070686
Susan Clancy susan@reagroup.ie 086 6031847
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