JUDICIAL COMMENT ON MEDIATION      

Mr Justice Peter Kelly, the presiding judge of the Commercial Court urges parties involved in commercial and other disputes to look at mediation as a first option. Speaking in Cork in July 2011, he said up to 70% of cases before him at the time could be resolved through mediation.

Mediaton generally led to much quicker dispute resolution as it could take place over a much shorter period than litigation, where parties have to wait for a hearing date.

He referenced a copyright dispute involving The Dubliners, which was admitted to the Commercial Court on a Monday. He recommended mediation and the dispute was resolved by the Thursday. He said, “In this country we have the lowest number of judges per head of population in the world. There is no country with fewer judges than Ireland, and the court system is constantly under pressure, so there is great saving in public cost and public time if more cases are mediated.”

Chief Justice John Murray, speaking at the Dublin Solicitors Bar Association in March 2010, said that mediation “is in a sense an antidote to a too casual recourse to litigation not only as a first but as an only option.”

The Honourable Ms. Justice Maureen Clark of The High Court showed the wisdom of Solomon when presiding over the case of Charlton v Kenny & another by successfully encouraging the parties to agree to mediate their dispute. Having since agreed a mediated settlement before going into evidence in the litigation, the parties have demonstrated the extraordinary power and value of the mediation process for resolving civil and commercial disputes. Notwithstanding the eleventh hour mediation and the legal costs of going so far in the litigation, the parties now enjoy the benefits of a mediated settlement. There are lessons to be learned here for anyone involved in civil or commercial disputes who may be contemplating issuing court proceedings.

It is worth remembering that somewhere in excess of 90% of all proceedings issued in our courts are settled before or during the trial. There are many reasons why this is so (not least because relatively few disputes involve novel or complex legal issues) but what it shows clearly is that less than 10% of civil and commercial disputes need a judicial determination or, put another way, there are very few civil or commercial disputes that cannot be resolved through mediation.

- Justice Sandra Day O’Connor, (US Supreme Court).“The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.”