About LSMS Mediation
What is Mediation?
• A mediator is a neutral person who assists parties and their
advisers to a resolution of the dispute.
• The mediator can chair joint sessions and meet with parties in
private and find out underlying reasons for the dispute and identify interests
of the parties in addition to their rights.
• A mediator will not make a decision or make any findings and the
mediation process is confidential and without prejudice.
• It is intended that the whole mediation process should be
completed within 90 days.
Is Mediation effective?
• Research shows that recourse to mediation has a high success
rate; it is faster and can save legal costs and it can result in preserving the business relationships
between the parties for the future.
When can you use Mediation?
• Mediation can be attempted at any stage of a dispute and the
courts are likely to permit adjournments to litigation if there is a chance
that mediation could resolve the dispute.
• If the mediation fails, the parties are free to proceed with
litigation without prejudice to their legal rights.
Most types of dispute can go to mediation provided the parties
make a genuine attempt to mediate.
• Some cases where mediation has been regularly used include
disputes involving family companies, partnerships, professional negligence, inheritance, employment,
family and construction.
What is Law Society Mediation Services?
• Law Society Mediation Services
(LSMS) was established to provide
a mediation service populated by solicitors who are trained mediators and who will
assist in resolving disputes resulting in time and expense savings.
• Mediation has now become well established as an effective means
of resolving disputes and courts and advisers will now encourage parties to explore resolution of
the dispute before coming to court.
• LSMS is managed by a Management Board comprising experienced
Solicitors.
How does it operate?
• LSMS operates through a Panel of Solicitors who are trained in
mediation law and practice and who have learned mediation skills and who
confirm they are eligible to act as mediators on behalf of the parties to
disputes.
• All members of the LSMS Panel must adhere to the LSMS Code of
Conduct and to the EU Code of Conduct for Mediators.
• Parties or their advisers can select a mediator from the panel
or, if preferred, a mediator can be nominated by the LSMS administrator.
If Mediation is suitable for me, how do I select a Mediator?
• First, contact the other party to the dispute and ask if they
will agree in principle to try mediation as a method of resolving the dispute. This is essential and should be
able to done quickly.
• Many contracts now provide that if the parties have a dispute
that they agree to use mediation.
• Mediation is a voluntary process and it cannot happen unless
each party is willing to make a genuine attempt to resolve their dispute by mediation.
• If the other party agrees in principle to try mediation, select
one of the mediators from the Directory of Mediators. Each mediator has a
profile page which lets you know what type of mediation they carry out. You
should choose a mediator who is experienced in the type of dispute that is
relevant to you.
• Tell the other party of your proposed choice of mediator and
allow them time to consider the suggested mediator.
• The other party may accept your choice or propose an alternative
and when a particular mediator is agreed in principle, the proposed mediator can be contacted. The
mediator’s contact details, including email address are on their profile page.
Referring the case to the Mediator
• Send brief details about the type of case and the parties
involved to the mediator.
• Allow the mediator time to consider whether he will accept the
case. The mediator may have acted for one of the parties in the past or may not
be available at an early date.
• The mediator will inform you within 21 days whether they are willing and able to deal with the dispute.
• If the mediator agrees to accept the case, he will write to the
parties to confirm his appointment and to outline the fees which he will charge for the mediation.
• This will give you an opportunity to decide whether to go ahead
with the mediation.
• The mediator will request that each party will provide to the
mediator, within a reasonable period (usually 14 days in advance of the date of
the mediation), all necessary documents and arguments which are relevant for
the mediation.
• What constitutes a reasonable period will depend upon the size
and complexity of the dispute however the mediator will endeavour to ensure
that the mediation is completed within 90 days of the receipt by the mediator
of the complete complaint file or if longer is required by the mediator then
within the time periods set out.
• Once the mediator has all necessary documents and information,
they will confirm to the parties that they now have the complete complaint file and are in a
position to proceed.
• If the mediation proceeds, the mediator will make all the
arrangements with you as to where and when the mediation will take place. He may also ask both parties
for details about the dispute in advance of the mediation. You may bring your legal advisor or
friend with you to the mediation, but you are not obliged to do so.
• Mediators with LSMS are willing to accept both domestic and
cross-border disputes. Some disputes can be resolved using the EC Online Dispute Resolution platform.
• If the mediator has a conflict of interest and can no longer act
in the mediation, this will be notified to the parties by the mediator who will also notify the LSMS, if
necessary requesting that another mediator is appointed.
• An appointment of a new mediator is dealt with in the same way
as appointment of the original mediator laid out above.
What happens if we fail to agree a Mediator?
• In the unlikely event that a mediator cannot be agreed with the
other party, the matter may bereferred to the LSMS to appoint a mediator.
• Send contact details about yourself and the other party to:
Ann McMahon
Head of Practice and Procedure
Law Society of Northern Ireland
96 Victoria Street
Belfast
BT1 3GN
You may email this information to
ann.mcmahon@lawsoc-ni.org
• Ann McMahon will contact both parties at the earliest
opportunity.
• If a mediator is agreed and accepts the appointment, the matter
will be passed to that person to make all the arrangements for the mediation.
• The mediator selected will be one of those who is on the website
directory.
• A fee is not charged for this appointment process.
Where does a Mediation take place and how long does it last?
• Mediation does not take place in a court building but in a
neutral location which the mediator will agree with the parties. This can be
anywhere where there are facilities with separate rooms for each of the parties
and for the mediator.
• The time envisaged for a mediation will be discussed with the
mediator in advance of the mediation. Most mediations are completed within a day.
• You may bring your legal adviser or a friend with you to the
mediation – this should be mentioned to the mediator in advance to ensure that each party is aware of it
and has a chance of doing likewise.
• Mediation can also be carried out by telephone conference between
the parties if appropriate.
• The aim of LSMS is to complete all mediations within 90 days of the receipt by the mediator of the complete complaint file.
In
highly complex matters however the mediator may need to extend this
time period at their discretion. If this is required, the mediator will
notify all parties in writing.
Conduct of the Mediation
• The mediator will conduct the mediation in accordance with the LSMS Code of Practice and the EU Code of Conduct.
•
The mediator will conduct the mediation in an impartial way and does
not provide advice to either party. They will assist the parties in
defining the issues involved in the dispute and will work with the
parties to settle the dispute.
• The mediator will encourage the
parties to generate their own solutions however the mediator may suggest
solutions to the dispute for the parties’ consideration if necessary.
• Any party has the right to withdraw from the mediation at any stage.
• If a settlement is reached, the terms of that settlement will be documented by the mediator for the reference of both parties.
How much does a Mediation cost?
• The fees will be in accordance with the scales which you can view on the following pages.
**Please note that mediation for health disputes does not fall
within Consumer Mediation. If you have health dispute which requires
mediation, LSMS members will be happy to deal with this using the
Non-Consumer Mediation processes.