In referencing Shakespeare’s The Tempest throughout this piece, we acknowledge that there has always been a “rough magic” to the practice of mediation; something elemental about the ability to bring peace in the midst of “roaring war”. Yet peace itself, can sometimes be controversial and the magic of mediation is grounded in carefully honed professional skills.
The Mediation Act 2017, “the Act” was a long time coming in Ireland, incubating for over a decade before being commenced in its entirety in January 2018. The Act represents a significant turning point for the Irish Civil Justice system and is very significant for mediation. This legislative framework applies to almost all forms of civil disputes (exceptions set out in section 3) providing the necessary support for the development of a vibrant mediation sector and firmly establishes the foundations for the development of mediation as a distinct profession. It offers users choice and autonomy while providing a clear map of the intersections between the two systems of mediation and litigation. At all times, even at the late stage when proceedings have commenced, the Act encourages disputants to step away from the courtroom and self-determine a solution in ways that reflect the 2008 EU Mediation Directive.
The Act defines mediation as having three main elements; The process is voluntary, confidential and facilitative. Section 2(1)(o) provides definitions for mediation, a mediator, and defines the output of mediation as a ‘mediation settlement’. Section 7 describes the commencement of mediation as the point when the ‘Agreement to Mediate’ is signed. Section 8 sets out the role of the mediator and section 9 enables the Minister to approve code(s) of practice. Section 10 clearly sets out what mediation confidentiality is and when it can be lifted. Section 11 is noteworthy in that it codifies self-determination, empowering the parties to decide when they have reached an agreement and whether they wish that agreement to be legally enforceable between them.
It is this section of the Act that has perhaps predictably created economic tensions between mediators and legal professionals. Two of the writers have practised mediation for over 11 years as of July 2021. We can draw from the experience of over 500 mediation cases in our private practice. Between January 2010 and December 2017, in excess of 80% of the cases our mediation firm had completed in those 8 years were referred by solicitors. The majority of these cases were family disputes including separations, divorces, maintenance and parenting negotiations. A striking and unexpected impact on our work, following the commencement of the Mediation Act, was a rapid dissipation from this steady flow of solicitor referrals to a trickle of approximately 5% of cases in 2018-2019. A subsequent upturn from mid 2020 to-date has been influenced by the pandemic and referrals from legal practitioners outside our geographical area. Interestingly, public awareness of mediation as a dispute resolution option grew steadily from January 2018 with online searches, digital marketing and word of mouth supplanting solicitor referral.
The difficulties that have arisen in practice centre on end-of-relationship family disputes, particularly disputes between separating spouses who may choose mediation as the forum to agree a legally binding separation agreement. This has resulted in a challenge from the Irish Law Society who in a practice note addressed to the profession published in May 2020 (Law Society Gazette) sought to distinguish family mediation from any other form of mediation, a distinction that the Act does not make. The practice note stated that “…and practitioners will be aware that best practice for qualified mediators is that agreements to mediate separating couples’ disputes shall expressly provide that any agreement reached at mediation is not legally binding…and that mediation settlements of separating couples disputes are never intended to be binding…”. It is highly unusual that one profession would seek to tell another competing profession how they should practice, but it evidences tensions that the Act has highlighted. The Act recognises that separating couples have always been able to negotiate the terms of a legally-binding separation agreement with the assistance of a mediator and section 11 affirms this right, placing the choice in the hands of the parties and not the mediators or the lawyers.
Why might parties chose mediation over litigation? Since the beginning of our professional practice, we have queried clients’ expectations of mediation. They typically cite lower costs as an advantage, but also a faster process that is less adversarial and more likely to promote positive relations. This is especially helpful for families in dispute, be it over family law matters or matters of equity, property and the myriad things that can give rise to conflict. Mediation is not just an alternative to litigation but qualitatively different for the service user. It does not supplant litigation where there are complex legal matters that need judicial examination, something which Irish courts have already ruled in Atlantic Shellfish [2015] IECA 283.
The onset of the pandemic accelerated the distinction between mediation and litigation. The Courts temporarily ceased normal operations as the world shifted to a new norm of working from home and communicating through online platforms like Zoom. Mediators also moved online. While the Courts struggled to adjust to this new reality, many mediators were agile and adapted fast, adopting on-line platforms for document exchange and collaborative editing, e-signature and virtual meetings. Leveraging technology to protect clients and enabling prompt access to a forum for resolution with experienced professionals. Clients embraced this new way of meeting and negotiating, quickly realising that they could achieve legal certainty with legally binding agreements, in a timely and cost-effective manner. There were those who were left behind in this radical shift: those without adequate Internet connectivity; those who struggled with online technology and may have felt further disempowered as a result of literacy, education, cultural or language issues; or those who did not have a private space from which to communicate.
Some of those left behind were mediation practitioners with the same struggles as service users and suspicions that this new way of working was “less than” their familiar practice. Yet the Act is agnostic about whether an in-person or online forum is used for mediation. Through economic necessity, Online Dispute Resolution (ODR) spread its wings and flew but like the “Brave New World” of The Tempest, opportunity brings with it challenges that the mediation profession must meet to ensure equality and quality of access for all.
The Act demands a new kind of justice system with mediation at its heart. However, this can only be achieved through dialogue between mediators and legal professionals, clarifying roles and respecting boundaries. The Act envisages that there will be collaboration between solicitors and mediators, that their roles will complement each other for the benefit of the users. The sympathetic and harmonious interworking of professionals with contrasting skills yields something greater than can be achieved apart; ideally an understanding that justice and fairness has been achieved by the parties themselves without the need for external adjudication. Mediators shoulder more of the disputants’ emotional burden and solicitors provide legal advice in respect of their clients’ rights, particularly important where the clients wish to have a legally binding outcome, whatever the subject matter of the dispute.
Before the pandemic began Irish judges actively supported and promoted the benefits and use of mediation, both in the courtroom and at seminars and legal conferences and Irish judges have established a branch of the organisation GEMME, a European Association of Judges for Mediation. Mediation as a profession is now supported by legislation and Government policy and talks are underway to establish the Mediation Council of Ireland, which will be tasked with promoting the uptake of mediation, setting training standards, preparing a code of practice and will maintain a national register of all practising mediators. 5 of the 11 Council seats are for members who represent bodies promoting mediation services or representing the interests of mediators. It is vital for the development of mediation and the benefit of service users that the majority of these seats are held by organisations solely representing the interests or promotion of mediation.
Mediation in Ireland is now firmly moving into the mainstream; however, there is a lot of work to be done to encourage greater uptake, and that will come when the public have a better understanding of what mediation is and what they can achieve in that forum. Our simple request is that the regulation of mediation is driven by the best interests of the service user, promoting diverse and skilled professional practice that reduces conflict in our workplaces, communities and homes.
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