The hardest moment in any commercial dispute is not the legal analysis. It is the moment somebody has to suggest talking — when relations have soured, positions have been stated, and each side suspects that proposing a conversation will be read as weakness. A mediation clause makes that decision months or years earlier, calmly, when nobody is angry.
What a Good Clause Contains
Not much, but each element earns its place: a commitment to attempt mediation before issuing proceedings; a mechanism for appointing the mediator if the parties cannot agree on one (naming an appointing body avoids a dispute about the dispute resolution); timeframes — how quickly the process must be commenced and how long it runs before either party may proceed, so the clause cannot be used to stall indefinitely; costs — how the mediator’s fee is borne, commonly equally; and critically, an express carve-out for urgent relief, because a clause that appears to block a genuinely urgent injunction is a clause that will be litigated about at the worst possible moment. Sensible drafting also addresses confidentiality, and whether the clause survives termination of the agreement — disputes tend to arise after contracts end, which is exactly when parties discover the clause did not follow them there.
Where They Belong
Most commercial documents, and a few that people never think of: supply and services contracts, commercial leases, shareholders’ agreements and partnership deeds (where the alternative is a public petition), joint venture and collaboration agreements, construction contracts alongside the adjudication and conciliation machinery already there, and — the underused one — OMC constitutions and house rules, where a mediation step written into the scheme’s own documents gives a board a route that is not litigation the first time an owner refuses to pay or a faction forms. Family businesses benefit particularly: a clause in the shareholders’ agreement gives the next generation a way to disagree that does not begin with solicitors’ letters between siblings. The value is behavioural rather than legal — the clause does not force anyone to settle, and courts will not compel a settlement. What it does is remove the awkwardness, pre-agree the machinery, and make mediation the default rather than a concession. Drafting them is a transactional service, and it is on the appointing page.
The arithmetic: a mediation clause is a paragraph, drafted once, at the point where a lawyer is already reading the document. Against the cost of a single contested dispute it is close to free — which makes it the highest-return dispute-resolution work available, and the least frequently done.
Contracts or OMC documents being drafted or reviewed? 01 5827148.
Richard O’Shea — Solicitor & Mediator
Solicitor at Mary Molloy Solicitors (established 1981), holder of the Law Society of Ireland Diploma in Mediation and a TEP of the Society of Trust and Estate Practitioners. Mediations are conducted at The Ormond Building on Ormond Quay, at the firm’s Kilkenny office, at neutral venues, at the parties’ own premises — or fully online. Fees are agreed in writing with all parties before any mediation begins. 01 5827148 · richardoshea@marymolloysolicitors.com · LinkedIn
General information, not legal advice. The content of this website is general information about mediation and Irish law. It is not legal advice and does not create a solicitor—client relationship. Every dispute turns on its own facts, and advice on yours requires a consultation.
The mediator is not your legal adviser. Where Mary Molloy Solicitors is appointed as mediator, the mediator is neutral: the mediator acts for no party, advises no party, and does not decide the dispute. All parties are encouraged to take independent legal advice, and in particular to take advice before signing any mediation settlement. The firm does not act as mediator in any dispute in which it acts, or has acted, for a party — conflicts are checked before any appointment is accepted. Where the firm is instructed as solicitor for one party in a mediation, it acts for that party alone and does not act as mediator in that dispute.
Fees. Fees for mediation are agreed in writing with all parties before the mediation begins, and fees for legal services are agreed in writing with the client at the outset. In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
Tax. Nothing on this website is tax advice. Where a dispute or its resolution has tax consequences — succession, business transfers, property, compensation payments — those questions belong with your accountant or tax adviser and with Revenue’s own guidance, and are best addressed before any settlement is signed.