The objective of the Tribunal’s Mediation Service is to provide an alternative dispute resolution process to that of investigation in respect of claims for equal pay in employment and complaints of discrimination, harassment, sexual harassment and victimisation under the Employment Equality Acts 1998 to 2011, the Equal Status Act, 2000 - 2011 and the Pensions Acts 1990 - 2009. The Mediation Service adheres to the following principles in the mediation process:-
· Referral: If the Director of the Tribunal considers that a case could be resolved by mediation he will refer it to an Mediator. By default, cases are referred to mediation unless one or other party objects.
· Voluntary Process: Mediation is a voluntary process. Mediation cannot proceed if either of the parties objects to a mediation referral. Likewise each side may withdraw consent at any stage of the process and mediation will be terminated immediately. The complainant may request the resumption of the investigation as laid down in each Act.
· Impartiality: The Mediation Service guarantees impartiality and does not take sides with either party. It is not the role of the Mediator to determine the rights or wrongs of the situation nor to adjudicate the outcome.
· Accessibility: The Mediation Service is committed to ensuring accessibility for all persons. Special arrangements as appropriate will be put in place for any person with special needs who wishes to use the Service.
· The Mediation Session: The Mediation Service arranges a mutually convenient meeting between the parties and an Mediator, as soon as practicable after the case has been referred. In a small percentage of cases, a number of such meetings may be necessary as part of the mediation process.
· Participation: Before the mediation session commences, the Mediator willt provide the parties with a clear explanation of the nature and purpose of mediation. It is essential that everyone necessary to reach a settlement is present and participates in the mediation process.
· Issues for Discussion: It is the responsibility of the parties to identify, if necessary with the help of the Mediator, the issues requiring negotiation. The parties are responsible for the terms of any settlement, they reach.
· Conflict of Interest: The Mediator will not proceed with mediation if there is a concern that a conflict of interest might arise between themselves and one or other of the parties. If the Mediator or one of the parties believes that a conflict of interest might exist or might be perceived to exist, the Mediator together with the parties must discuss whether it is appropriate for the Mediator to continue their involvement or to ask another Mediator to step in.
· Joint Sessions: Parties are normally seen together. However, in some cases the Mediator may consider it helpful to discuss an issue alone with either of the parties before or during a mediation session. Should the Mediator decide to do this, the conditions and procedures for this will be clarified and agreed with the parties beforehand. A detailed description of the structure of a mediation session can be found on the Tribunal’s website equalitytribunal.ie
· Power Balancing: The Mediator has a duty to ensure balanced negotiation and to prevent manipulative or intimidating negotiation techniques. The Mediator will endeavour to empower the parties to make free and informed choices as to content and outcome.
· Disclosure: The mediation process is based on full disclosure and it is important that all information relevant to the dispute is shared by the parties at mediation. However, if the Mediator agrees to have discussions with either of the parties separately from the other with a view towards progressing the negotiations, that party may, with the Mediator’s agreement, give him/her information which will be kept in confidence and not shared with the other party.
· Confidentiality: Mediation is conducted in private and the terms of any settlement are not published. Information furnished at mediation or investigation may not be published or otherwise disclosed. Any person who discloses information in contravention of the Acts is guilty of an offence.
The Service further guarantees that any information disclosed to the Mediator remains confidential to the Mediation Service and shall not be released to an investigating Equality Officer if the dispute is not resolved at mediation and the investigation is resumed. The Mediator cannot be called to give evidence of what occurred at mediation in the course of a subsequent investigation.
· Advice: The Mediator will only give information in those areas where s/he is qualified to do so by training and experience. Where the mediation may affect other rights and obligations or where monetary settlements are involved, the Mediator will advise the parties to seek independent advice.
· Third Parties: Third parties (e.g. advisors or representatives) are welcome at mediation. The Mediator will facilitate all the parties involved in reaching agreement and will discuss, at the outset of the mediation, how best third parties can contribute to the mediation process.
· MII Code of Ethics: The Tribunal’s mediators are all enrolled as members of the Mediators Institute of Ireland (MII) and conduct mediation in accordance with the MII’s Code of Ethics. The Tribunal’s mediators also comply with the Institute’s requirements with regard to Continuing Professional Development.
· Child Protection: If harm or risk to a child is made known during mediation, the Mediator will ensure that appropriate action is taken to protect the best interests of the child in accordance with the provisions of the Department of Health and Children’s publication ‘Children First: National Guidelines for the Protection and Welfare of Children 1999’.
· Settlement: If the basis of an agreement is reached between the parties at mediation, the Mediator can proceed in one of two ways. In cases where both sides are represented or where a simple outcome such as an apology is involved, the parties may express a preference for the Mediation Agreement to be drafted and signed on the day. In such cases, if the Mediator is satisfied that both sides fully understand the terms and conditions of the mediated agreement, the Mediator will facilitate the parties by preparing an Agreement document for signature there and then.
Alternatively, if a complicated settlement is involved the Mediator may decide to give the parties some time to digest what has been agreed. In such circumstances, the Mediator will take the information away and then prepare a written record of the terms of the settlement as they see them. This draft Agreement is then sent to both sides for consideration to ensure that they fully appreciate the settlement terms involved. By so doing, both sides are afforded an opportunity to think about it before they are formally asked to sign the Agreement.
When each party is satisfied with the final terms of the settlement, both parties are asked to sign it. The settlement once signed is legally binding and may be enforced on application to the Circuit Court. A copy of the Agreement is then formally sent to each party with notification that the Tribunal has closed its complaint file. A copy of the agreement is also retained by the Equality Tribunal.
· No Settlement: If agreement is not reached at Mediation, the Mediator is required by law to issue a formal “Non-Resolution” notice to both parties. If the complainant still wishes to pursue their complaint they must respond to the notice in writing within 28 days or 42 days (for complaints under the Employment Equality Act) seeking a resumption of the Investigation of the complaint. Where such an application is not made within the specified time limit, the Tribunal has no further jurisdiction in the matter and must close the case file