MEDIATION IS the flexible application of elegant skills towards a creative solution which would not have been possible in a court that is restricted to legal remedies. Unlike the court process, mediation is a voluntary, private and flexible way of settling disputes. It is interest-based and not rights-based. Flexibility, and the desire of the parties who own the problem to also own the solution, are essential ingredients. Its definition within the proposed new bill, however, provides only that it be “facilitative”.
The flexibility to design the process is the responsibility of the mediator through agreement with the parties. Often, this may go beyond being “facilitative”: the mediator may be neutral and express no view, or it may be a more structured mediation-arbitration model where the parties can be assisted to get past discrete aspects of the dispute.
This can be achieved either by the mediator “changing hats” for various stages of the process, or through using two mediators. Sophisticated providers of ADR (alternative dispute resolution) regularly design bespoke processes geared towards the circumstances of each dispute that are agreed in advance.
The bill does accept that other definitions of “mediation” are possible, yet it also describes a situation where the “facilitator” may switch to being a “conciliator” and therefore potentially competent to make a decision. However, the bill does not deal with what “conciliation” means. If it requires the mediator to make decisions, to whom are those decisions accountable? Is an accredited mediator professionally competent to make decisions? Problems may arise, for example, where a CEDR-accredited mediator is not accredited by an arbitration body and will not be bound by the code of practice applied to arbitrators.
The Irish approach seems to be to subject a private, voluntary, interest-based mediation process to rigorous legal regulation, with the inevitable effect of enlarging the involvement of the courts and lawyers in the process.
The duties of solicitors and barristers are set out in the bill and involve counselling and advising clients about mediation. Does this mean that a barrister will have to include an advice on mediation processes as a necessary adjunct to any pre-litigation Opinions on merit or quantum? Given the distinction between the rights-based approach of the courts and the interest-based approach of mediation, will legal advisers have to do the exercise of balancing the parties’ interests and the parties’ rights?
The bill imposes further duties on the mediator such as ensuring that the parties understand and consent to any agreement reached. Does this extend to the provision of legal advice? If so, what effect will this have on those highly valued mediators who are not lawyers but experts in other professional fields? If not, who must bear the cost of legal representatives during the mediation phase?
The bill also sets out a supervisory role for the court – which may well have the effect of swelling the numbers of lawyers who need to have some aspect of their mediation litigated upon. Because of constitutional guarantees and statutory requirements, the fairness of some mediated settlements will need to be approved by a court (certain family law matters, for example).
Alarmingly, under the bill, the duty of obtaining the consent of the child (and the agreement of the parties) in mediation of a family law dispute falls to the mediator. The explanatory notes accept that “this gives rise to issues concerning the age of the child . . . and the capacity of the child to give consent”. Whatever guidance may be forthcoming, it is questionable whether an accredited mediator is professionally competent to make such a decision.
The bill states that the mediation process shall not be permitted “to negate any rights or avoid any obligations”, but it does propose to create new duties and obligations without a mention of how this is to be funded. It may in fact lead to an additional layer of delay and expense if the basic principles of mediation are not understood. Whatever this Mediation Bill is about, it is not a replacement for access to a civil justice system.
Trish Dunlop is a barrister in Regency Chambers in the UK, a CEDR-accredited mediator and member of MCIArb