Mediation in Ireland: Current Trends, Future Opportunities.
Mediation has become the preferred method of Alternative Dispute Resolution (ADR) in Ireland and throughout many other jurisdictions. It is best described as “a process in which an impartial and independent third party facilitates communication and negotiation and promotes voluntary decision making by the parties to a dispute, to assist them to reach a mutually acceptable solution” Mediation is voluntary and cannot impose a solution on the parties. Furthermore it is confidential and operates on a without prejudice basis, which starkly contrasts with the adversarial nature of litigation that cultivates complexity and increasing costs. This paper proposes to examine how mediation as a method of ADR, should become the initial first step to resolve a dispute with an overall effect of ensuring that the Court’s time money and other resources are employed to best effect. It will further convey the advantages of mediation over litigation and considers the different business sectors of society where mediation can be most effective, namely in property, construction and healthcare. Finally, it will outline the training necessary to effectively implement mediation and other methods of ADR in our jurisdiction and illustrates valuable lessons to be learned from the experience of other jurisdictions that have successfully integrated alternative methods into their Civil Justice systems.
At the outset it is necessary to give a brief overview of Alternative Dispute Resolution in order to illustrate the effectiveness of mediation within this framework. Alternative Dispute Resolution has been described as a broad variety of “Structured processes that exist within a modern Civil Justice System.” It aims to provide individualised justice for all parties involved. The need for ADR is extremely evident in our currently over-burdened judicial system. Alternative methods outside the courtroom are imperative and immediate incorporation of these alternative methods is vital Ireland’s rescue mission of our congested court system.
The need for Alternative Dispute Resolution within the Irish Judicial System.
Ireland has become the most litigious jurisdiction outside of the US. Taking into account the size of our country and its limited resources during these economically difficult times, this litigation fuelled mentality can not continue. The Irish Courts system have a moral obligation to explore alternative methods as our courts can no longer provide the essential services that it endeavours to carry out. It is a well established phrase that “Justice delayed is justice denied” . All effective legal systems rely on reasonable expectation of prompt judicial remedies, with every client entitled to reasonable access to the courts system. Every successful practice is built upon the core duties of integrity justice and fairness which are enshrined in our Constitution. A lawyer has an inherent responsibility to insure their client’s claim is heard in the most efficient manner possible. An average case in Ireland’s mainstream courts can take up to two years to be decided and many clients have been forewarned to expect lengthy delays before their case will be heard before a judge. Inadequate spending during the short reign of the untamed Celtic Tiger had catastrophic effects on our legal system. Extensive demands were made on our already heavily burdened Civil Courts, without any increase in legal resources to meet this demand. Ireland has come to witness the many advantages of engaging the skills of a neutral third party to settle disputes outside the courtroom. At present many of our courts most respected judges are earnestly promoting mediation and other types of ADR in an attempt unclog the present litigious backlog. Speaking at the Dublin Solicitors Bar Association the Honourable Mr Justice John L. Murray referred to the promotion of ADR as “a governmental task” and a crucial alternative to litigation. He looked to the success of mediation in particular in other jurisdictions and was confident in the fact that it has proven to be a successful process that not only benefited the parties involved but also the legal system and society as a whole: “It is in a sense an antidote to too casual recourse to litigation not only as the first but only option.”
In order to examine what type of solution is required in any given dispute it is important to acknowledge the severity of the dispute in question. A dispute arises when a conflict is unresolved between two or more parties. To resolve a dispute attempts can be made by informal negotiations or legal advice may be sought. To promote access to justice a model society would offer numerous proposals and options to resolve such a dispute. Inevitably on some occasions true justice can only be achieved by order of a High Court Judge where technical evidence has been scrutinised, witnesses heard from both sides and a jury’s decision becomes final. In many other cases, depending on the type of dispute in question justice may be served as effectively from an apology or an award that can easily be administered without resorting to litigation. This can only be achieved by assessment on a case by case basis considering many factors such as the goals of the parties whether relationships need to be restored and costs administered.
Advantages of Mediation
Mediation is widely recognised as being a cost effective and efficient method of parties achieving a satisfactorily result of a dispute. There are also additional advantages of flexibility as it can work with the Civil Justice process. It does so through structured agreements of the Small Claims or Commercial Court, with each part playing a vital role in each stage of the process.
The suitability for mediation in collective disputes was exemplified by the Alder Hay retained organs litigation involving around 1,000 families reaching a conclusion through mediation. The terms of the mediation included an award of £5,000 and an official apology to families whose children’s organs were removed without consent. This mediation settlement avoided lengthy litigation and was the first Civil action brought by any group in the UK against the Health Service.
Mediation and Conciliation
Mediation and Conciliation are often used interchangeably; however the Law Reform Commission has set out in its report on ADR that they should not be used interchangeably as they are two distinct processes. A third party is selected and a mediator will have written statements from both parties. A mediator does not advise the parties he only assists them by facilitating the discussion. He cannot offer opinion or advice. Conciliation is used more in the Labour Relations Commission construction sector on a more evaluative basis. Where parties fail to agree a settlement the conciliator would attempt to give his/her professional opinion on the best outcome possible and may give a non binding recommendation on this also. This is a useful tool in what would have otherwise become a breakdown in negotiations.
The Minister for Justice and Law Reform, Dermot Ahern, has introduced a provision in the High Court Rules to promote mediation and conciliation in the Superior Courts that specifies failure to participate in conciliation or mediation may be taken into account when costs are awarded. This is a deliberate effort to discourage litigation as a first-option basis. The Minister stated that “Parties are generally more satisfied with solutions that have been mutually agreed rather than a solution imposed by a third party.” The likelihood of business relationships surviving the process is much greater than dragging disputes through the courts. It is vital that parties have a genuine desire to achieve a settlement. These processes should be introduced at the earliest possible stage of the dispute.
Mediation in Property Disputes
There is strong potential role in resolving property and planning disputes through mediation. It is particularly effective where it is of paramount importance that parties preserve their relationships after a neighbourly boundary dispute has occurred. In the 2008, High Court Action in Charlton V Kenny Anor Clark J, encouraged the parties to successfully mediate the dispute which resulted in preserving a civilised relationship between neighbours. The Commission advised to promote mediation prior to any litigation taking place in consideration of the immediate dispute as well as their long term relationship. Neighbourly disputes are often as a result of boundary lines and adjoining properties. LRC further suggests that “such disputes can be fought with a passion that seems out of all proportion to the importance of what is involved in practical terms” This certainly remains to be the case in many parts of Ireland today. The Irish Courts system reflects how this type of case tends to escalate beyond all reasonableness not due to legal difficulties but due to the fact that personalities tend to make these disputes more difficult than others and can lead to costs that far out weigh the cost of the claim itself.
In relation to larger property developments S24 of the Multi Units Developments Bill 2009 has extended that at any stage of an application the court can direct parties to mediation. Individual disputes ranging from Property Management agents, to developers and unit owners could be dealt with through litigation and mediation. The Minister for Justice has incorporated provisions into the 2009 to give a more “Structured approach to mediation than exists at present in our legal system” and illustrates the importance of our legal advisors in the decision making process to encourage parties to mediate.
Mediation and NAMA
One of the largest commercial Irish cases has used mediation in an effort to settle a dispute between a property developer and Ireland’s National Asset Management Agency (NAMA). A deadlock situation has arisen in this dispute between a well known solicitor and property developer regarding the conduct of affairs of a major development holding company. Paddy McKillen is attempting to resist the initial transfer of €297 million in loans from Bank of Ireland to NAMA . The Supreme Court has reserved its judgment on whether McKillen can resist the transfer. Locked in a legal dispute for 6 months McKillen is presently awaiting the outcome of an appeal to the Supreme Court. While in the High Court Justice Peter Kelly suggested further mediation being required, however, due to the complexity of the case although not resolved by mediation, it is a prime example of how our most respected and experienced High Court judges are invoking more confidence in the process of mediation as a whole on deciding the countries largest commercial cases.
Mediation and Construction Disputes
In 2007 the Government reformed the regulation of Public Construction projects. The very nature of Construction Projects involves lengthy delays in completion leading to costly breaches of contracts. The Public Works contracts were a suite of contracts introduced to increase certainty which it is now compulsory for all publicly funded construction projects to incorporate. Where a dispute arises on these grounds, either party can rely on conciliation that will have required specialist knowledge to conduct required investigations. Under Clause 13.1.8 if an agreement cannot be reached in 42 days the conciliator can provide a written recommendation to both parties. Under 13.1.9 if neither party give a notice of dissatisfaction, the recommendation will be binding on all parties and the parties agree to comply with it. Commercial Courts in Ireland have in many cases shown a preference to mediation and after the mediation process, judges suggest the mediator involved submit a report of their findings in relation to the dispute. The Law Reform Commission (LRC) has recommended this to be limited to a neutral summary of the outcome.
Mediation and the Irish Healthcare system
“The number of medical negligence litigation cases has risen sharply in recent years”. LRC report suggests ways in which mediation could play an important role in medical disputes. An estimated 1,500 people die in Ireland every year due to a medical error of medical professionals. Predominantly claims are based on tort of negligence where clients seek compensation, the medical technicalities and expertise involved lengthen the time it takes to process a claim and adds significantly to higher costs. A professional body such as a medical council may have disciplinary functions to oversee and prevent poor professional practice that would evidently lead to a dispute. Many contemporary healthcare problems are now alleviated through the introduction of mediation. It is inevitable that conflicts occur in all professions but when conflicts occur in the medical profession they often results in extravagant cost, reducing the quality of patient care or resulting in the loss of life at the worst. Those involved in a healthcare dispute could evidently benefit from the use of mediation. In the 1990’s the US issued a Health Care Due Process Protocol in which it outlined its aim to resolve disputes in privately managed healthcare organisations to use mediation to resolve disputes.
Wade suggests that the Irish Healthcare System would do well to learn from their experience and aim to “Create an epidemic and spread the virus of mediation”. The only way to establish this “epidemic” is to allow mediation to infiltrate into the profession by training and educating the medical profession in the area of mediation and ADR by directly linking it as an integral part of patient care. Along with assessment diagnosis and treatment plan, it would be a logical process to follow this through to the study of conflicts and encourage doctors to be open to alternative solutions to clinical problems. Not alone is it cost effective as well as the other obvious benefits but crucially when a conflict is resolved through ADR there is a significantly more realistic prospects of a patient likely to refer themselves back to that doctor’s care if the result is satisfactorily resolved through mediation, than would be an achieved through a lengthy court battle.
The LRC describes in detail the “Power of an Apology” in what has become a “blame-orientated culture” to redress a wrong on these grounds and although it may not be suitable for every dispute it conveys the many merits of mediation that would not be achieved through the court such as an account given of emotional aspects of the dispute which provides a “therapeutic sense of closure”. There is no doubt that “People with problems, like people with pains want relief, and they want it as quickly and as inexpensively as possibly.”
A conflict resolution process is a change process. Parties may initially come to a mediation or negotiation to win or to get their way. They will likely be quite certain...By Tim Hicks