Before engaging in litigation, businesses should look to mediation and independent intervention writes Deanna O’Connor.
Legal battles are an expensive and stressful process to enter into and for a small business it can prove ruinous. It’s often said that even a bad agreement is better than a good lawsuit and for a small business with a dispute, whether that be with a current or former employee or against another party, mediation can be a more cost effective way of sorting out the issue. It’s also not the only option – there is another process, called independent intervention, which can also prove useful in sensitive matters and conflict resolution.
According to HR compliance and governance expert Carol Ann Casey, founder of CA Compliance, “Mediation and independent intervention are both methods used to address and resolve conflicts or issues – however they differ in their processes, roles and scope. Depending on the matter, business owners could choose mediation where parties voluntarily engage in the dispute resolution process or have a more facilitated process where an independent intervenor ultimately proffers a decision and recommendations on the matter.”
Meeting in the Middle
“Mediation is a structured, voluntary process in which an independent and impartial third party, known as a mediator, facilitates communication and negotiation between disputing parties to help them reach a mutually acceptable agreement,” Casey outlines.
In the UK, almost 80% of commercial disputes are settled using mediation and it is growing in popularity across Europe. Since the Mediation Act 2017 came into operation, solicitors are obliged to advise clients to consider mediation in advance of issuing legal proceedings. A court can also invite parties to consider it as an option.
“Mediation offers a range of benefits that make it an attractive option for resolving disputes. It is cost-effective, time-efficient, confidential and allows parties to maintain control over the outcome while preserving relationships and reducing stress.”
According to the Irish Commercial Mediation Association (ICMA), it’s estimated that the cost of mediation is approximately 20% of the cost of going to court.
The mediator does not have any decision-making power – they facilitate dialogue but cannot impose solutions. “Their role is to assist the parties in identifying issues, exploring options and finding common ground,” says Casey.
Participation in mediation is voluntary, with parties agreeing to engage in the process and work towards a resolution. “The sessions are usually confidential, encouraging open communication without fear of repercussions,” Casey notes. “It is often used in disputes such as family conflicts, workplace issues, community disputes and commercial disagreements on which the parties agree to mediate.”
The best-case scenario from going through the mediation process is a mutually agreed-upon resolution. “This may or may not be legally binding, depending on the agreement between the parties,” says Casey.
Staging an Intervention
Independent intervention differs from mediation in that it can be mandated in some situations and the decisions maybe be enforceable. Casey explains: “Independent intervention involves actions taken by an independent and impartial third party to address a conflict or issue, that may empower authority to investigate, provide recommendations or enforce decisions.”
The “intervenor” may be a recognised expert or independent body and may have the authority to make decisions, provide binding resolutions or offer recommendations. Their role can vary from advisory to authoritative, depending on the context.
“Independent interventions can be initiated by an external body with the mandate to act impartially,” says Casey. “This can include regulators, auditors or international bodies. Independent interventions can also be mandated to a specialist to disseminate facts and provide a structured decision with recommendations to resolve the conflict or deadlocked situation.”
Unlike mediation, participation in an independent intervention is not always voluntary for the parties involved. It can be mandated by law, governing frameworks or organisational policy such as terms of reference agreed by the directors of the company.
“Independent interventions often involve formal processes with established protocols, ensuring transparency and accountability,” says Casey, while outcomes can include binding decisions, recommendations for action or formal reports. “The intervenor’s findings and actions can have significant implications,” she notes.
Independent intervention is commonly resorted to in workplace matters, especially where mediation has not been acceded to by parties or where a more structured facilitated approach is considered advantageous, Casey explains. Other contexts include matters of regulatory compliance, corporate governance or legal disputes.
“Independent intervention offers significant benefits by providing impartial, expert and credible solutions to conflicts and issues,” says Casey. “It enhances trust, ensures compliance and can lead to sustainable, long-term resolutions. Whilst it can be more expensive than self-decided mediation it is less expensive than legal proceedings, providing a credible impartially-decided course of action that can be time-efficient, confidential and stress-reducing.”
Resolution Road
In summary, while both mediation and independent intervention aim to resolve conflicts, mediation emphasises voluntary facilitated negotiation that is commonly used, whereas independent intervention can involve more decisive or authoritative actions by an impartial third party. “It is advantageous for all parties to resolve the conflict or have a structured facilitated approach,” says Casey, noting that if these approaches fail, the next step is likely to be costly legal proceedings, be it in a tribunal or court.
The perennial question of what to look for in a mediator often arises – some err on the side of sector-specific knowledge, while others argue for the importance of demonstrated ability to resolve cases, regardless of industry. There are a wide range of factors to take into account, according to Casey. “Choosing the right mediator or independent intervenor requires careful consideration of their expertise, impartiality, reputation, communication skills, problem-solving abilities, process, confidentiality, cost, outcome focus and compliance knowledge. By thoroughly evaluating these factors, a business owner can select the best equipped person to handle their specific situation effectively and equitably.”
Carol Ann Casey is a HR Compliance and Governance Specialist who expertly handles sensitive matters such as resolving conflict, conducting independent interventions, mediation and independent investigations on matters such as protected disclosures, grievances, harassments, governance, board conflicts and HR compliance www.cacompliance.ie
