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26 February 2013

Michael Robinson, President of the Law Society of Northern Ireland

I am extremely proud to be the President of the Law Society of Northern Ireland, a unique and compact jurisdiction representing some 2,200 solicitors practising in 550 firms. It is both our opportunity and mission to provide a dynamic and innovative range of professional legal services.

I passionately believe that a key component of this mission is ensuring our clients have a full menu of dispute resolution options - whether through adversarial legal proceedings or Alternative Dispute Resolution (ADR) techniques. This is particularly important in a context in which court volume is increasing and cross-border disputes become more widespread across the EU and internationally.

The European Council meetings in Vienna and Tampere in the late 1990s emphasised the duty of Member States to provide non-judicial solutions as a component of access to justice. This was reinforced a decade later with the enactment of Directive 2008/52 on certain aspects of mediation in civil and commercial matters.

The Society had already been promoting ADR and mediation in particular, since the beginning of the 1990s through its Dispute Resolution Service. This service is re-launching in May 2013, ensuring that the public have direct access to a web portal for selection of an accredited mediator in an open and transparent way.

This trend towards increasing use of mediation has also been recognised by the EU where the new ADR package received the final stamp of approval just last month. The initiative aims to ensure that ADR entities are available for use in disputes between consumers and traders, and provides for the establishment of an online platform for the referral of disputes to appropriate ADR entities. The package covers both domestic and cross-border cases where consumers wish to resolve disputes with businesses.

On a more general level, a key challenge for Northern Ireland, as with other EU jurisdictions, is finding a means to carve out a respected place for mediation and ADR within our mainstream civil justice system, whilst providing sufficient flexibility to recognise that ADR is not a panacea, but rather one tool among many in settling civil disputes.

There are a number of advantages to mediation. It occurs 'without prejudice' to traditional court processes, but also allows for civil justice which is flexible, client-centred and recognises the vastly differing needs and wishes of clients.

Mediation may be appropriate for parties seeking a low-key resolution to disputes, such as in employment cases where there may be a continuing relationship between the parties in the future, or those seeking to avoid public disclosure of emotionally sensitive issues in marriage breakdown.

As Lord Justice Dyson stressed in the landmark English case of Halsey v Milton Keynes Health Trust, it is an embedded duty of practitioners to "routinely consider" whether their client's disputes are suitable for ADR. This collaborative approach ensures that respect for the possibility of a mediated solution is at the core of solicitors' ethical duties, whilst avoiding a blunt imposition of a mandatory requirement to engage in mediation across civil cases, which has provoked significant controversy, for example in Italy.

EU initiatives on the future of ADR, such as consideration of a possible system for ADR in business to business disputes as set out in the joint work programme of the current "trio" of Council Presidencies (Ireland, Lithuania and Greece), must look carefully at the systems already in place throughout the Member States. It is also essential to take into account the impacts on participation from both clients and the legal profession in each case.

Locally, the support of ADR "champions" in the judiciary and wider profession have helped guarantee that ADR is both taken seriously and applied appropriately and proportionately, helping Belfast face outwards as a key European centre for ADR. We strongly believe that if genuine access to ADR is to increase across the EU, a keen understanding of these "bottom up", collaborative processes and learning from best practice will become increasingly important.

The Law Society of Northern Ireland is determined to play a full role in the development of ADR through our own initiatives and in collaboration with our European partners to make the EU market fair, flexible and world leading- with Belfast at its heart, of course!