Mediation

Mediation

"A ounce of mediation is worth a pound of arbitration and a ton of litigation." ~ Joseph Grynbaum

WHAT IS MEDIATION

According to (Singh 1986, Bellman 1998) there is no universally agreed definition or general theory of mediation however Moore (2003:15) argues that mediation is:

‘the intervention in a negotiation or a conflict of an acceptable third party who has limited or no authoritative decision-making power, who assists the involved parties to voluntarily reach a mutually acceptable settlement of the issues in dispute’.

 

According to (http://www.themii.ie) mediation is:

Mediation is a process in which an impartial and independent third party facilitates communication and negotiation and promotes voluntary decision making by the parties to a dispute to assist them to reach a mutually acceptably solution.

 

According to Fresh Thinking, mediation is:

Mediation is an alternative dispute resolution (ADR) process which is confidential, voluntary, non legal and non binding (up to the point of agreement) between two or more parties involved in dispute.  In mediation, the parties are assigned a specially trained third party otherwise known as a mediator who facilitates communication between the parties in an effort to understand and educate both sides in order to find a mutually acceptable agreement.

 

WHY SHOULD I CONSIDER MEDIATION

Mediation allows parties to discuss with an independent third party “issues” that would not or could not be discussed in court or arbitration proceedings but may have significant relevance to the dispute at hand. 

 

HOW CAN MEDIATION HELP RESOLVE DISPUTES

Mediation is a flexible process and can help parties to discover interest based outcomes rather than position based which are generally win-win solutions that would normally be mutually beneficial: 

Mediation can be extremely beneficial when:

The issue involves strong emotional feelings.

The parties know each other.

The parties would like to retain their relationship.

One party is uncomfortable about confronting the other side.

The parties have reached an obstacle.

One or both parties want to avoid expensive litigation costs.

The issue does not involve class action and punitive damages.

 

HOW LONG DOES MEDIATION TAKE

Mediations can normally be dealt with in a day but in some cases it may be appropriate to offer a time limited mediation for a few hours.  We would recommend a minimum period of four hours.

 

WHEN SHOULD I GO TO MEDIATION

Mediation can be entered into at any time and most parties are referring matters to mediation before they start court proceedings.  In general courts rule that mediation should be attempted while litigation should be only used as a last resort when the parties are unable to resolve the matter between them.

 

DO I NEED A LEGAL ADVISOR

It is not necessary as you can represent yourself however most mediators will encourage you to bring your legal advisor on the day of the mediation.

 

WHAT HAPPENS IF MEDIATION FAILS

While over 90% of cases settle through the process of mediation, there are less than 10% that do not reach agreement through the process.  Parties are not compelled to agree an outcome so if there is no agreement then the parties are free to start or continue their case through the courts.

Even in the event that the parties do not agree an outcome, they will more often have a clearer understanding of the issues that divide them.  Provided there is no threat or illegal activity involved, nobody can call the mediator to repeat what was said, not even the court.

 

At Fresh Thinking we keep our members updated on changes in employment law and with over 30 pieces of major employment legislation there is a greater responsibility on Irish employers to ensure they are compliant. We take the sting out of this by working with you to ensure you are compliant and aware of the danger zones that may affect you.

 

A HISTORY OF EMPLOYMENT LAW IN IRELAND


Unfair Dismissals Act 1977:  first law introduced to protect employees from unfair dismissal in the workplace.


Safety, Health and Welfare Act 1989:  this legilation was replaced by Safety, Health and Welfare at Work Act 2005 which came into effect on 1st September 2005 .


Unfair Dismissals Act 1993:  updates unfair dismissals law and amends previous legislation dating back to 1977


Terms of Employment (Information) Act 1994:  updated previous legilation relating to the provision by employers to employees on such matters as job description, rate of pay and hours of pay.


Maternity Protection Act 1994:  provides protection for employees who are pregnant including maternity leave, the right to return to work after such leave and health and safety during and immediately after the pregnancy.


Adoptive Leave Act 1995:  provides for adoptive leave from employment principally by the adoptive mother and for her right to return to work following such leave.


Protection of Young Persons (Employment) Act 1996:  replaces previous legislation dating back to 1977 and regulates the employment and working conditions of children and young persons.


Organisation of Working Time Act 1997:  regulates various employment conditions including maximum working hours, night work, annual and public holiday leave.


Employment Equality Act 1998:  first


Parental Leave Act 1998:  n


Equal Status Act 2000:


National Minimum Wage Act 2000:  introduces an enforceable national minimum wage, currently €8.65 for an experienced adult employee (For the purposes of this act, an experienced adult employee is an employee who has an employment of any kind in any 2 years over the age of 18).  For more information on rates etc see our members section...


Carers Leave Act 2001:  provides an entitlement for employees to avail of temporary unpaid carer's leave to enable them to care personally for persons who require full-time care and attention.


Protection of Employees (Part-Time) Act 2001:  this replaces the Worker Protection (Regular Part-Time Employees) Act 1991.  It provides for the removal of discrimination against part-time workers where such exists.  It aims to improve the quality of part-time work, to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organisation of working time in a manner that takes account of the needs of employers and workers.  It guarantees that part-time workers may not be treated less favourably than full-time workers.


Organisation of Working Time (Records) (Prescibed Form and Exemptions) Regulations 2001:  The main purpose of this EU Regulation is the requirement of employers to keep a record of the number of hours worked by employees on a daily and weekly basis, to keep records of leave granted to employees in each week as annual leave or as public holidays and details of the payments in respect of this leave.


Protection of Employees (Fixed-Term Work) Act 2003:  protects fixed-term employees by ensuring that they cannot be treated less favourably than comparable permanent workers and that employers cannot continually renew fixed-term contracts.  Under the Act employees can only work on one or more fixed-term contracts for a continous period of four years.  After this the employee is considered to have a contract of indefinite duration i.e. a permanent contract.


European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003:  applied to any TUBE of a business or part of a business from one employer to another as part of a legal transfer Including the assignment or forfeiture of a lease) or merger.  Employees rights and entitlements are protected during the transfer.


Employment Permits Act 2003


Equality Act 2004:  makes significant amendments to the Employment Equality Act 1998 which prohibits discrimination in a range of employment-related areas.  The grounds of discrimination are gender, family status, marital status, age, race, religious belief, disability, sexual orientation and membership of the traveller community.  The act also prohibits sexual and other harassment.  The Equality Act amends the Equal Status Act 2000 to extend the definition of sexual harassment and shift the burden of proof from the complainant (person who the alleged complaint has been taken against) to the respondent (person making the claim of harassment).


Maternity Protection (Amendment) Act 2004:  includes new provisions relating to anti-natal classes, additional maternity leave, breastfeeding, making significant improvements to the Maternity Protection Act 1994.


Adoptive Leave (Amendment) Act 2005:  amends the Adoptive Leave Act 1995.


Safety, Health and Welfare at Work Act 2005:  replaces the provisions of the Safety, Health and Welfare Act 1989 when it came into operation on 1st September 2005.  It consolidates and updates the existing Health and Safety law which includes provisions for higher fines for breaches of safety legislation.


Parental Leave (Amendment) Act 2006:  amends the Parental Leave Act 1998 


Employees (Provision of Information and Consultation) Act 2006:  this legislation establishes minimum requirements for employee's right to information and consultation about the development of their employment's structures and activities.  Since 23rd March 2008, it applies to employers with at lease 50 employees.


Employment Permits Act 2006:  updates the Employment Permits Act 2003 and introduces the Green Card permit and revises the legislation on work permits and spousal permits.


Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007:  this act establishes a redundancy panel to consider certain proposed collective redundancies.  The Act also removes the age limit for entitlement to redundancy payments.


Protection of Employment (Temporary Agency Work) Act 2012:  this act provides that since 16th Mary, 2012 all temporary agency workers must have equal treatment as if they had been directly recruited by the hirer in respect of the duration of working time, rest periods, night work, annual leave and public holidays and pay.  The right to equal pay is backdated to 5th December, 2011.


Industrial Relations (Amendment) Act 2012:  This act reforms the wage setting mechanisms for making Employment Regulation Orders and Registered Employment Agreements.

 

 

At Fresh Thinking, we are experienced HR consultants with a practical knowledge of employment legislation and how it transfers into the workplace.  We offer advice and support to SME's and organisations in relation to all aspects of the employee/emplorer relationship and our clients have access to our library of resources that is contained in our members section.....


Fresh Thinking does not provide legal advice to our clients - Our mission is to help you avoid any breach of employment law by best practice in workplace policies and procedures....

 

A HISTORY OF FAMILY LAW IN IRELAND

Property (Ireland) Act 1865:  permitted a wife to sue her husband in tort if separated or deserted.


Partition Acts 1868 & 1876:  allowed courts to divide up property between spouses.


Matrimonial Causes and Marriage Law (Ireland) Amendment Act 1870:  brought civil nullity rules in line with church rules.


Married Women's Property Act 1882:  allowed married women to hold property in their own name.  


Married Women's Status Act 1957:  ("replaced the "Married Women;s Property Act 1882") made wives liable for their own debts and breaches of duty.  Allowed courts to

decide property disputes between spouses.  


Guardianship of Infants Act 1964:  gave parents the right to joint guardianship of their children and allowed courts to make decisions on custody and access.


Succession Act 1965:  reformed the law relating to the estates of people who had died, in particular the administration and distribution of property where no will was made and specified the shares of spouses and children on intestacy.


Marriages Act 1972:  raised the minumum marriage age to 16 retrospectively for boys and girls, validated so-called "Lourdes marriages".


Maintenance Orders Act 1974:  allowed the reciprocal enforcement of maintenance orders between the ROI (Republic of Ireland, Northern Ireland, England, Wales and Scotland.


Family Law Act 1976:  provided for periodical payments by one spouse to another in cases of failure to provide reasonable maintenance, with deductions of earning at source and barring orders.


Family Home Protection Act 1976:  protected family home and required prior written consent of both spouses for sale of family home or chattels.


Courts Act 1980:  widened the Circuit Court's jurisdiction in family law matters.


Family Law Act 1981:  abolished actions for enticement of spouse and breach of promise to marry.  Allowed courts to decide disputes over gifts after broken engagements. 


Family Law Act 1981:  gave the Circuit and District Courts power to grant barring and protection orders. (Repealed by Domestic Violence Act 1996)


Domicile and Recognition of Foreign Divorces Act 1986:  confirmed independent domiciles of wives, recognised divorces granted where either spouse was domiciled.


Status of Children Act 1987:  abolished status of illegitimacy and amended law on maintenance and succession for non-marital children.  Allowed unmarried fathers to apply for guardianship of their children.  Provided for blood tests to establish paternity.


Family Law Act 1988:  abolished actions for the restitution of conjugal rights.


Childrens Act 1989:  gave health boards powers to care for children.


Judicial Separation and Family Reform Act 1989:  amended the grounds for judicial separation, assisted reconciliation between estranged spouses and provided for ancilary orders such as maintenance, property adjustment and custody of children.


Child Care Act 1991:  gave powers to health boards to care for children who where ill-treated, neglected or sexually abused.


Child Abduction and Enforcement of Custody Orders Act 1991:  provided for wrongful retention of children.


Maintenance Act 1994:  simplies procedures for recovering maintenance debts from other countries.


Family Law Act 1995:  raised the minimum age for marriage to 18 and required 3 months' written notice to local registrar.  It abolished petitions for jactitation of marriage ( falesly claiming to be married to someone), provided for declarations of marital status, and ancillary orders after judicial separation or foreign divorce.


Domestic Violence Act 1996:  extended safety, barring and protection orders to non-spouses, gave health boards powers to apply for others, allowed arrest without warrant for breach.


Family Law (Divorce) Act 1996:  allowed divorce and remarriage, with all ancillary orders.


Children's Act 1997:  recognised natural fathers as guardians, allowed children's views to be considered in guardianship, access and custody matters, allowed parents to have joint custody.


Family Law (Miscellaneous Provisions) Act 1997:  amends the Domestic Violence Act 1996 in respect of barring orders and interim barring orders.  Section 4 now states that the applicant seeking a further barring order, shall be presumed to have lived with the respondent as husband and wife for a period of as least six months in aggreagte during the period of nine months prior to making the application.


Protections for Persons Reporting Child Abuse Act 1998:  protects a person from civil liability who have reported child abuse to a designated officer of the Health Board in terms of the communications made.  Further protection is affored to employees who report child abuse from being penalised by their employers as a result of making the reports.  The protection is not unqialified and the person who has reported child abuse must have acted reasonably and in good faith in forming that opinion and communicating it to the appropriate person.  Where a person who reports child abuse to the appropriate person knowing the statement to be false shall be guilty of an offence.


Protection of Children (Hague Convention) Act 2000:  implements into Irish Law the Hague Convention on the protection of children.  Provisions of the Convention deal with jurisdiction, applicable law, co-operation and enforcement of measures designed to protect the welfare of the child between signatory states to the Convention.  In order to facilitate greater co-operation and information sharing, each signatory state must establish a Central authority, which in Ireland's case is the Department of Equality, Justice and Law Reform.  Once the child reaches the age of 18 years, the Convention provisions can no longer be invoked.  There are several matters which are outside the remit of the Convention such as rights of asylum, immigration, maintenance payments and public matters of a general nature involving education and health.  The Contracting State who has jurisdiction in relation to cases of wrongful removal or retention is the one where the child was habitually resident immediately prior to the retention or wrongful removal, until the child has acquired habitual residence in another contracting state, in addition to:

  1. Each person, institution or body having custody rights acquiesced in the removal or retention.
  2. The child is resident in the other Contracting State for at least 1 year after the person, authority, and institution having custody rights should have known of the whereabouts of the child, no request for return lodged within that period is still pending and the child is settled in his environment.

Domestic Violence (Amendment) Act 2002:  permits the court granting an interim barring order on an ex-parte basis where in the particular circumstances of the case, the court deems it necessary and expedient to do so in the interests of justice.  Any application for an interim barring order shall be grounded on affidavit or information sword by the applicant (person applying for the barring order).  If an interim barring order is make ex-parte, a copy of the court order, note of evidence and information sworn by the applicant must be served upon the respondent (person against whom the barring order is being enforced) as soon as it is reasonably practical.


Child Care (Amendment) Act 2007:  this act affords greater rights to foster and relative parents who have cared for a foster child for a period of not less than 5 continuous years.  Some of the rights granted to foster and relative parents include: consent to medical or psychiatric treatment, treatment or assessment with respect to the child, permission to sign passport applications and school trip consent forms.  However, any application must be made through the Courts and with the knowledge and consent of the Health Service Executive.  Furthermore, the parents in loco-parentis must also be informed of the application.  Before any application is granted, the courts will have regard to what are the best interests of the child and will take into account the wishes of the child in light of his age and degree of understanding.


Civil Law (Miscellaneous Provisions) Act 2008:  permits the Property Registration Authority (PRA) to cancel an entry made in the Land Registry or note compliance in the Registry of Deeds, after being satisfied that the Property Adjustment Order has been complied with.  The PRA are also required to amend or cancel the entry in the Land Registry and note the position in the Registry of Deeds when the initial Property Adjustment Order has been amended, revoked or suspended, which usually arises when the second Property Adjustment Order has been duly lodged for registration with the PRA.


USEFUL LINKS: 

http://www.jsijournal.ie/html/volume%205%20no.%201/5%5B1%5D_martin_the%20changing%20face%20of%20family%20law%20in%20ireland.pdf

http://www.courts.ie/Courts.ie/library3.nsf/pagecurrent/8B9125171CFBA78080256DE5004011F8?opendocument

http://www.citizensinformation.ie

 


Please note that Fresh Thinking provides a mediation service.  We do not provide legal advice to our clients....


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