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18 August 2017

Alva Brangam Q.C. Mediator and Brian Speers Solicitor Mediator

Collectively the abbreviation ADR covers a number of processes. Whilst there is little or no statistical data, it is incontrovertible that in the last ten years there has been a marked increase in the use of one particular ADR process that is now familiarly known as mediation. This increase has manifested itself, particularly but not exclusively, in commercial cases. The growth is explained in part by robust judicial encouragement fortified by the introduction of a number of new Protocols and Practice Directions. These betray some clear fingerprints of what might be called the “the better parts “of the Woolf reforms. It is also significant that the use of mediation is a now settled part of the policy of departments of government. This flows from the Attorney General’s pledge of 2002 and a plethora of management reports urging departments to insert mediation clauses in supplier contracts and, where possible to seek to avoid litigation through the use of ADR. Mediation also fits in well with a long standing cross-party ambition to reduce the costs of both legal proceedings and the spiraling overheads for the administration of Justice.

There can be no doubt that the rate of growth in mediations accelerated after the property and banking crisis of 2007. Significantly, in an increasing number of cases the demand for early mediation, has been client driven and has arisen before the issue of proceedings. Given the recommendations of the civil justice review undertaken by Lord Justice Gillen mediation is set to be further and firmly embedded in our civil justice system

Whilst all of this represents a very significant change in our legal landscape, it does not mean that the familiar process of litigation is in some way doomed, redundant or unnecessary. Lawyers will always have work in the temples of justice! There are, and always will be, cases which, for one reason or another simply require a Court to impose an adjudication upon those in dispute. But the changing landscape makes it necessary for all practitioners to recognise the new facts of life - litigation and an adversarial trial are now viewed as the weapons of last resort and an unreasonable refusal to consider mediation carries and increased risk of some adverse costs order under Order 62 rule 10 or otherwise.

In this brave new world, legal practitioners must be in a position to offer specific advice about the practical dynamics and consequences of processing disputes to a conclusion. They must know of the availability of choices ranging from consensual negotiated settlement through the necessarily formal procedures required to access a binding adjudication albeit, with, perhaps one or more levels of appeal.

Quite apart from the increase in the client driven demand for information on mediation opportunities, it is strongly arguable that it is the duty of practitioners to actively engage with clients to consider all of the options, both before the issue of any proceedings and as a case proceeds towards trial. Support

for this proposition is to be found in the dicta of Dyson LJ1 in the Court of Appeal in England case Halsey –v- Milton Keynes Health Authority2 ( 2004)

The “A “ of the abbreviation ADR formerly stood for ALTERNATIVE and, in the past , many legal practitioners viewed, and perhaps scorned, mediation as some sort of an inferior second fiddle to what was seen as the lead process of litigation. In multiple cases our Judges have remarked that an increasing number of academic and practitioner commentators have now agreed that the “ A “ should represent APPROPRIATE and that it is for the parties , with their representatives , to look at methods (plural) to find the best way of finding a resolution for their particular dispute. All of this, of course, ties in with the overriding obligations set out in Order 1 Rule 1 A of the Rules of the Court of Judicature. Consideration of mediation is no longer alternative, it is a requirement which arises at all stages of dispute.

With the exception of the The Cross Border Mediation Regulations (Northern Ireland) 2011 which was necessitated by the pressing need to comply with the EU Mediation Directive 2008, the mediation developments in our jurisdiction have come about without any legislative intervention. In many other civil and common law jurisdictions the history of developing mediation can be charted as a progression from tentative steps to actual compliance regulation which formalises aspects of mediation practice. This is just what has happened in the Republic of Ireland (ROI.) where, within much the same time-frame there has also been an expansion in the use of mediation. South of the border there was a detailed and very informative Law Reform Commission report in 2010 from an impressive group which was chaired by Mrs Justice Catherine McGuiness (who, incidentally traces her home to Finaghy!) There has been a lively seven year debate which has led to the Mediation Bill 2017 which it had been hoped would have passed into law by now but which is likely to go President Higgins for signature in the autumn.

An examination of the available submissions and the parliamentary travaux prepatoir indicates that the seven year debate has been informed by submissions from a large number of mediation providers including both branches of the legal profession. Again there is no statistical data but a rough head count of known mediation providers indicates that the majority providers in the Republic are from non-legal disciplines. In contacts with legal and mediation practitioners from ROI it is now seen as an obvious and almost unforgiveable faux pas to speak of someone as a non-legal mediator. If for no other reason, this is because the prolonged discussions towards the ROI Mediation Bill have been marked by concerns that mediation processes which, in other civil and common law jurisdictions are recognized as voluntary, flexible and confidential methods of dispute resolution, should not become over-lawyered.

The legislative progress of the Bill has also been marked by a clear identification of the practical and academic distinctions which identify two of the well-recognised but significant differing forms or styles of Mediation. These are conveniently referred to as Facilitative and Evaluative Mediation. They are not mutually exclusive but it is essential that the differences are well understood by practitioners.

The Facilitative theory is that the Mediator as a third party, neutral, independent engages with the disputing parties. In this type of process, whilst expertise is always useful, there is no necessity for the

1 “All members of the legal profession who conduct litigation should now routinely consider with their clients whether their disputes are suitable for ADR. But we reiterate that the court's role is to encourage, not to compel. The form of encouragement may be robust”

2 Halsey v Milton Keynes Health Authority [2004] 1 WLR 3002

mediator to have any subject specific qualification or specialty. Whilst the past history of dispute is important, the Mediator aims to use qualities such as active listening, empathy, clear communication and analytical skills to allow the parties to more clearly identify the present and future of their dispute. The mediator seeks to help the parties identify and focus upon their interests rather than offer predictions of outcome. In even the most “ commercial “ of disputes, the parties have a psychological need to be heard, and it is the task of the mediator to assist THEM to find, work out and refine a resolution with which they can be at least content and is better than the alternative. Purposeful, direct and patient engagement with the parties is an essential and necessary part of the facilitative process. The Mediator can be an agent of reality. She/he can ‘stress test’ the position of parties but she or he is not providing anything like an evaluation of the merits of the case or predicting the adjudicated outcome of the dispute or disputes

In an Evaluative process the mediator is no less neutral or independent but she or he is usually chosen because of specific subject knowledge. For example if the issue concerns foundations of a building then an engineer with a specialty in ground stability might be selected. In this style the parties agree and accept that the Mediator is entitled and willing to offer evaluations on particular issues.

In many US Federal and State regulations the Mediator is obliged to make it clear to the intending consumers whether the Mediation Contract is for Facilitation or whether it will involve Evaluation. The working rational is that consuming public MUST know the type of service which they are contracting to receive.

In both Irish jurisdictions there is a level of anecdotal evidence that some parties and some of their legal advisers have been discontented with some mediators; the grievances include that there has been little or no involvement with the disputing parties and, instead, there has been a focus on discussion and meetings with legal representatives. Some solicitors, who have persuaded clients to enter a collaborative, voluntary, flexible process in which the client is involved, have ended up with discontented clients who have been largely excluded from a process in which they had expected to be involved or who have been confronted with a strident, forceful prediction of the likely or inevitable failure of their legal case. Not all of these complaints have been directed against what used to be called lawyer-mediators.

Certainly in ROI there has also been a concern that the legal professions have acted as inflexible gatekeepers in commercial matters and that, in the past, they have tried to steer clients away from mediation in preference for the better known route of litigation.

These particular factors have had a very strong influence on the final format of the Mediation Act 2017. The flavor of the legislation can be savoured from the following edited extract from the speech of the Tanaiste and Minister for Justice, to the Dáil on 2nd March 2017:-

“ Firstly is should be noted that MEDIATION is defined in the Bill as a facilitative voluntary process in which the parties to a dispute , with the assistance of a mediator attempt to find a mutually acceptable agreement to resolve their dispute…….Part 3 contains two key provisions which impose obligations on solicitors and barristers in relation to mediation. Put simply, the Bill requires solicitors (and barristers) to advise clients to consider the use of mediation, and to provide them with information on available mediation services, before embarking on court proceedings. In order to ensure that this key requirement is given effect, in practice, the Bill requires that solicitors make a statutory declaration that the obligations placed on them by this

legislation is discharged………….The Mediation sector is made up of a diverse range of bodies. The Bill does not set out to impose a rigid regulatory structure on the sector. It does however provide for a possible future establishment of a body to be known as the Mediation Council of Ireland………… Section 8 specifies the actions the mediator must take prior to the commencement of a mediation and those he or she must take during a mediation ……….. Section 9 provides for Codes of Practice which will set standards in relation to the practice of the mediator. It may be prepared and published by the Minister or alternatively, if the code has been drawn up by some other body, be approved of and published by the Minister.”

It should be noted that throughout the Act there is a recognition that family mediation is an area which requires separate and additional consideration but overall, the legislation seeks to avoid the curtailment or regulation of the voluntary and flexible methods of mediation which have and which will continue to develop. Pending some greater level of consensus between what the Tanaiste called “ the diverse range of bodies “and the formation of the proposed Council, the Act seeks to impose something like minimum standards on those who provide services in any form of mediation. Effectively it has been left to the mediation providers to organize themselves into some sort of unified body which can then seek status as the Council. (Section 12).

In Northern Ireland a Northern Ireland Mediation Council has already been formed. It has met on several occasions and has among its aims the promotion of mediation for the resolution of disputes and the establishment of a forum to discuss best practice and training. It seeks to include all providers – not just the lawyers – who are involved in mediation. It seems that with further development the Northern Ireland Mediation Council could be well placed to undertake work similar to the general functions envisaged for the proposed Mediation Council of Ireland.

The legislation in ROI comes in the context of the concerns raised during the seven year debate and there is an ambition that, in the future, there will be some system of registration. Pending the congregation and agreement of “the diverse range of bodies” to form the planned Council in ROI an examination of the provisions of Section 8 is an indicator of the level of agreement which has been found amongst existing providers and which will shortly pass into law in ROI.

The Section set out below has the simple marginal heading- “Role of the Mediator.” It draws heavily upon the express and implied obligations which are articulated in the European Code of Conduct for Mediators but the legislation has started the progression towards imposing positive and active obligations upon Mediators.

8, (1) The mediator shall prior to the commencement of the Mediation :-

(a) (i) make such enquiry as is reasonable in the circumstances to

determine whether he or she may have any actual or potential conflict of interest, and

(ii) not act as mediator in that Mediation if following such enquiry , he or she determines that such conflict exists .

(b) furnish to the parties the following details of the mediator relevant to mediation in general or that particular Mediation

(i) qualifications ;

(ii) training and experience

(iii) continuing professional development training AND

(c) furnish to the parties a copy of any code of practice to

which he or she subscribes in so far as Mediation is


(2) The mediator shall :-

(a) during the course of the mediation, declare to the parties any actual or potential conflict of interest of which he or she becomes aware or ought reasonably to be aware as such conflict arises and having so declared, shall , unless the parties agree to him or her continuing to act as a mediator cease to act as a mediator.

(b) act with impartiality and integrity and treat the parties fairly

(c) complete the mediation as expeditiously as is practicable having regard to the nature of the dispute and need for the parties to have sufficient time to consider the issues and

(d) ensure that the parties are aware of their rights to each obtain independent advice including legal advice prior to signing any mediation settlement .

(3) subject to subsection 4, the outcome of the Mediation shall be determined by the mutual agreement of the parties and the mediator shall not make proposals to the parties to resolve the dispute.

(4) The mediator may at the request for parties make proposals to resolve the dispute but it shall be for the party should determine whether to accept of proposals.

The slightly odd drafting and interaction between sub sections (3) and (4) in the ROI legislation seeks to say that Mediations are to be facilitative. A mediator is not forbidden from making suggestions about settlement possibilities but the process of agreement is akin to self–determination principles and should be not be achieved by mediator evaluation. The parties can of course stipulate that their agreement can be made an Order of Court or comprised within a Tomlin order or indeed arrange for a variety of their own methods of enforcement.


Whilst there has been either a muted or hostile response to mediation from a number of local practitioners, it is not yet too late for us to recognise the factual reality that, as in many jurisdictions, the legal professions does not have a monopoly on the provision of dispute resolution services. If the lawyers ever did have a dominant role as gatekeepers directing parties towards litigation then, that horse has well and truly bolted. Observing the developing situation in ROI and looking at what has happened in other jurisdictions it is clear that our legal professions must consider greater participation in what might loosely be called the Mediation Debate. The governmental /management treatment of the administration of justice as an “industry“, lawyers as “service providers “ and clients as

“customers“ is unattractive and ignores the professional duties, obligations and ethics which we take as standard. Be that as it may, the twenty first century reality is that lawyers must be in a position to advise parties on how disputes can be processed to a conclusion. They must be positioned to advise clients about litigation, mediation and other ADR processes. A fortiori they must be in a position to answer client enquiries which are likely to include, the access routes to mediation, who are the providers of the service, what type or styles of service are available, what factors influence choice of mediator, how does it work, what will be involved, how long will it take, who can we get, what are the benefits or detriments, is it confidential, can we still litigate, and of course what will it cost? These are questions which are already being asked by commercial clients and, as indicated in Halsey a failure to offer such information will expose lawyers to complaints from dissatisfied and ungrateful clients.

Competence in advice is the minimal level of requirement for the legal professions. If we are not to be left behind, the professions should also seek to engage with other providers of mediation and ADR services with a view to contributing to the ongoing development and, indeed perhaps providing leadership.


An attitude of masterly inactivity cannot serve our professions well and, we should throw our shoulders to the wheel. We should share and cooperate in a common purpose, informing our colleagues and clients about the expectation to resolve disputes, explaining the range of options to achieve this and effectively preparing clients for a process which they understand and can be assured they will receive.