MEDIATION IN THE MAINSTREAM?

MEDIATION IN THE MAINSTREAM?

It would be wrong to assume that a legislative push for mediation involves a zero-sum game for the legal profession, argues Fergus Armstrong

FERGUS ARMSTRONG IS FOUNDER OF THE ONE-RESOLVE MEDIATION GROUP AND A FORMER CHAIRMAN OF MCCANN FITZGERALD

The chief executive of the State Claims Agency is on record as saying that “some lawyers are implacably opposed to mediation”. Will the Mediation Act 2017 make a difference?

Much turns on the effect of section 14 and the obligation imposed on solicitors, before issue of proceedings, to advise clients to consider mediation as a means of attempting to resolve their disputes.

It must be recognised that similar provisions already apply in the family law arena. Acts of 1989 and 1996 dealing with judicial separation and divorce require the solicitor acting for an applicant to discuss the mediation option with the client before proceedings are issued and to sign a certificate confirming that has been done.

Yet the Law Reform Commission, in its 2010 report on alternative dispute resolution, recorded comments to the effect that these requirements “had little impact on the use of mediation by those whose relationships have broken down” and noted that “some judges express scepticism as to whether the option of mediation is seriously discussed by many solicitors with their clients”.

To address this problem, the LRC recommended not only that solicitors would be required to certify that clients had been advised to consider mediation before issue of proceedings, but that clients would also be required to sign their names to the certificate, confirming that they had in fact done so. This could help to ensure that the client fully explored the alternative with the solicitor.

The heads for a Mediation Bill, produced by Minister Shatter in 2012, pushed the issue further. Both solicitor and client were to sign a statement confirming that mediation had been considered and that the solicitor had complied with his obligations, which would now include giving information as to mediation services and names and addresses of persons and organisations qualified to provide these.

THERE IS EVIDENCE THAT DEVELOPING PATTERNS OF MEDIATION USE IN IRELAND – WHICH ARE NOT AT ALL IN KEEPING WITH INTERNATIONAL MODELS – INVOLVE A STIFLING OF THE POTENTIAL OF THE PROCESS

Unfavourable submission

These proposed provisions were the subject of an unfavourable submission from the Bar, which asserted that “it would be unhelpful to require a solicitor to advise a client to consider using mediation when the solicitor has formed a professional judgement that it is not appropriate for the particular facts of the case”.

The Law Society went in the opposite direction, suggesting that the Shatter provision did not go far enough. It noted that the existing family law provision: “may not have had a significant impact in promoting the use of mediation”. Suggested reasons for this included “lack of understanding of the process among solicitors, barristers and their clients”. It urged that, apart from advising consideration of the mediation option, solicitors should have a positive duty to provide clients with information about the mediation process and its possible advantages.

What was the outcome? The bill, as initiated by Minister Fitzgerald, did make provision for the giving of advice on mediation and the provision of names and addresses of mediators. It also included the Law Society’s suggestion of giving information as to the advantages of avoiding the litigation route and the benefits of mediation.

But the provision for a client signature had disappeared. All that is called for now is a statutory declaration from the solicitor to state that his/her obligation has been complied with. In this, it resembles the family law provisions, thought to be ineffective.

Many will see this outcome as a ‘win’ for those resistant to the use of mediation. There is a tendency to assume that a legislative push for mediation involves a zero-sum game for the legal profession. Indeed, there is evidence that developing patterns of mediation use in Ireland – which are not at all in keeping with international models – involve a stifling of the potential of the process.

THERE ARE FREQUENT REPORTS OF MEDIATIONS IN IRELAND IN WHICH CLIENTS, FLANKED BY LEGAL TEAMS ON BOTH SIDES, RESIST AN INVITATION TO PARTICIPATE IN DIALOGUE, AS THEY ARE DISCOURAGED FROM DOING SO BY THEIR LAWYERS

Mediation in the Mainstream

Resisting dialogue

There are frequent reports of mediations in Ireland in which clients, flanked by legal teams on both sides, resist an invitation to participate in dialogue, as they are discouraged from doing so by their lawyers. There can be an assumption that the ideal pattern of a mediation is one where legal representatives exclusively do the talking, and no real engagement takes place between the parties. Lawyers argue the case, and shuttle back and forth to consult clients in separate rooms. In such a situation, the skills that a mediator can bring to the table are effectively sidelined.

This is not how mediation was meant to be.The consultation paper published by the LRC in advance of its 2010 report listed the ingredients of mediation as follows:

  • The parties are at the centre of the process
  • The parties are the principal actors and creators within the process,
  • The parties actively and directly participate in the communication and negotiation,
  • The parties choose and control the substantive norms to guide their decision-making,
  • The parties create the options for settlement, and
  • The parties control whether or not to settle.

What is not always understood is that when parties in conflict can be persuaded to face each other in the same room, with adequate advice and support, a new dynamic arises. Basic psychology tells us that that the human being has competing tendencies – those of separating and bonding. We want to pursue our separate interests, but we also like to be agreeable and to resolve our conflicts peaceably if we can. A frequent criticism of the legal system is that, whereas the rule of law will prevent or deal with brute violence, it makes no contribution to the social aim of reconciliation.

I do not think that the face-to-face element of mediation is well understood. In the case of Ryan v Walls ([2015] IECA 214), Mr Justice Peter Kelly (himself a strong advocate for the use of mediation) overruled a decision of Cooke J to refer a case to mediation under section 15 of the Civil Liability and Courts Act 2004, saying: “The normal method of settling personal injury litigation is by face-to-face negotiation. That has not occurred in this case. The court should be slow to invoke a compulsory mediation procedure where the parties have not themselves endeavoured to bring about a settlement of the litigation in the normal way.”

WHEN PARTIES IN CONFLICT CAN BE PERSUADED TO FACE EACH OTHER IN THE SAME ROOM, A NEW DYNAMIC ARISES

Disempowered

Many would see this face-to-face aspect of the ‘normal method’ as involving only lawyers’ faces. What needs to be recognised is that, precisely because coming face-to-face in a situation of conflict is challenging for everyone, an independent third party, with appropriate skills, can be helpful and prevent the engagement getting out of control. That is a key contribution of a mediator, who offers a non-judgemental presence and has the unique capacity to speak privately with each party and hold confidences.

Clients regularly complain about being ‘disempowered’ by the litigation process. Mediation is about a return of power and personal autonomy. The definition of mediation contained in the Mediation Act, indeed, reflects the principle of party autonomy, referring to a process in which the parties to a dispute attempt to reach mutually acceptable agreement.

The act is equally insistent that parties should have access to legal advice. Lawyers who have experience of mediations conducted in the orthodox manner report no diminution of professional satisfaction. The alternative has to be tried to be appreciated. To put it crudely, the style of lawyer-dominated mediation referred to above gives mediation a bad name and a higher failure rate.

This role of adviser in mediation, in fact, should be particularly suited to solicitors, who have experience and wisdom derived from direct interactions with clients, and the ability to guide them with knowledge of the personalities involved. And client autonomy can be liberating for a creative lawyer. Intensive assertion of legal arguments is not required. Clients are at liberty to make whatever deals they please, free of a narrow concentration on ‘what a court might do’.

And the major prize for the adviser is increased client appreciation.

This article was first published in May 2018 in the Law Society Gazette
The article was reproduced with permission from the author.

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