Arbitration is a process whereby two parties in dispute agree to be bound by the decision of an independent third party acting as an ‘Arbitrator’. An Arbitrator is similar to that of a judge, though the process is less formal. They hear the evidence and arguments submitted by the parties and reach a final decision which is called an ‘Award’.
Sometimes the lease will provide for the appointment of an ‘Independent Expert’.
The Independent Expert may also receive evidence and listen to arguments but unlike the Arbitrator they can make their own investigations to work out the appropriate rent and reach a decision called a ‘Determination’.
The legislation governing the Arbitration Process in Ireland is the Arbitrations Act 2010 and subsequent amendments.
The benefits of using Arbitration to resolve disputes are:
- It is a fair and informal process
- It is an expedient method of addressing and resolving disputes
- It is a cost effective way of settling disputes without having to go to court.
Appointments of Arbitrators
When parties in dispute are unable to agree a third party themselves, an application can be made to the President of the Society of Chartered Surveyors Ireland to make a suitable appointment.
This application form together with a copy of the lease/s is used to assist the President in making the appointment/nomination. A copy of this application form will be sent to the person being considered for the appointment/nomination. This is to ensure, that there is no conflict of interest between both the appointee and the parties. The appointee can then make an informed decision as to whether he/she can act in this case.
The President gives careful consideration and due weight to any objections or other comments made by the parties or their representatives. However, he cannot be bound by any such objections or representations and will reach his own decision as to who should be appointed.
Both parties are normally advised of the appointment/nomination as soon as it is made and on the basis that no particular problems arise, the procedure is usually completed within 2-3 weeks from the date of receipt of the application for the appointment of an Arbitrator/Independent Expert.
“any third person who is asked to conduct a mediation in an effective, impartial and competent way, regardless of the denomination or profession of that third person in the Member State concerned and of the way in which the third person has been appointed or requested to conduct the mediation.“
Stages in the Mediation Process
Step 1: Preparation for Mediation
The disputants agree to engage with the mediation process and enlist the services of a mediator. A Mediation Agreement is set out between the mediator and the disputants which will address such issues as time schedule, venue, exchange of documentation, mediation fees/costs, etc.
Preparation is key to the success of the mediation process.
Step 2: Initial Meeting
The mediator decides on the form this should take – either jointly with the disputants or individually with each. The circumstances of the dispute and the relationship of the disputant parties will dictate this.
At the meeting, the mediator will set out the key elements of the mediation process, the procedure to be followed and the need for respectfulness and co-operation of the parties to the process.
Step 3: The Formatting Stage
The mediator meets with each of the disputants and gathers the relevant information and documentation to ensure that he is fully informed in all matters relevant to the dispute.
The mediator will work between the parties, exploring their individual positions, interests and needs.
The mediator builds trust with the disputants and assists each party to hear and understand what the other party is really saying.
This stage sets out the groundwork for settlement negotiations between the two parties.
Step 4: The Negotiation
The mediator moves between the parties in a caucus fashion, commencing direct and indirect negotiations.
The mediator challenges each party in relation to their stated position in order to explore any strengths or weaknesses.
The mediator uses his skill and experience to present and re-frame the issues in dispute and help the disputants resolve the issues.
Step 5: Drafting the Agreement
The disputant parties, with the assistance of the mediator, draft the resolution agreement. Once the resolution agreement is signed by the parties and witnessed, it becomes legally binding.