Mediation Bill; CIArb submission to Oireachtas joint ctte on Justice

                           Chartered Institute of Arbitrators   (Irish Branch)

What we are; an introduction.

  • A worldwide, organisation founded in 1915. Head Office; London. Irish Office 27, Merchant’s Quay, Dublin 8
  • Approx 12,000 members worldwide and 750 in Ireland, multi-disciplinary membership.
  • In ireland, an all island organisation with a Northern Ireland Chapter
  • Main disciplines are arbitration, adjudication and mediation, but also expert determination, conciliation and other third party neutral interventions.
  • Three separate membership grades Associate,  (full) Member, Fellowship Member. Also Chartered Arbitrator
  • Members conduct subject to a Code of Professional Conduct and regulated by a Professional Conduct Committee.
  • Operate a series of Professsional Practise Guidelines in relation to Mediation (and other ADR disciplines)
  • Our mission statement:

‘To promote and facilitate worldwide in a financially self-sustaining manner, the determination of civil and commercial disputes by arbitration, mediation and other alternative means of private dispute resolution through the support of a duly qualified, growing, active and highly regarded membership’.

  • In Ireland we work with other professional bodies (legal profession, engineers, architects, surveyors etc.) business organisations and trade unions etc. on matters of common interest and in relation to:

–      Promoting Alternative Dispute resolution (ADR) in general

–      Promoting CIArb as the national centre for dispute resolution

–      Organising training courses meetings, lectures and social events

The Mediation Bill

The CIArb (Irish Branch) gave a warm welcome to the publication of the outline of the Mediation Bill. This followed the Law Reform Commission Report in 2010 and commitments in the Programme for Government to improving dispute resolution and reducing legal costs to which we fully subscribe.

In a statement we commented;

This is an important day for Irish business. It would be easy to underestimate the significance of the statutory underpinning of mediation as a means of resolving disputes throughout the economy, in family and employment matters also.

Professional mediators, such as our mediator members, deploy a range of skills and techniques which, in the vast majority of cases, aid parties in dispute to resolve their differences in a positive way, that not only keeps them out of the courts and away from crippling legal costs, but which can sometimes avoid the negative destruction of relationships. Many judges have spoken strongly in favour of mediation, not simply as an alternative to the legal system but increasingly as a vital part of it in achieving justice for those involved.

We welcome the provision for lawyers and the courts to encourage parties into mediation, (with a possibility of financial consequences if they do not).

Pat Brady, Chairman, CIArb (Irish Branch)

We especially welcomed the requirement that mediators have high level and specialised training and operate under a code of conduct and we noted.

‘CIArb accredited mediators are trained to an international standard and operate under the Institute’s Code of Conduct and its Charter, and we provide additional training in workplace mediation for example.’

In relation to the deliberations of the Oireachtas Committee our key concerns are;

  • That Mediation should not be seen (in the words of the Law Reform Commission) as ‘second class justice’.
  • Therefore, there should be clear criteria governing use of the term ‘Accredited Mediator’. This could take the form of approving organisations which currently provide training to this level, or specifying a number of hours training requirement for ‘Accreditation’.
  • To be successful, public awareness of its availability and potential needs to improve. In Australia, for example where mediation and related dispute resolution techniques are deeply embedded it is driven by consumer demand. Accordingly, enactment of the legislation should be accompanied by a major public information campaign to promote the benefits of mediation as an effective dispute resolution technique and an alternative to litigation.

Pat Brady FCIArb

Chairman, CIArb (Irish Branch)

A commentary on the Bill for further consideration now follows.

The Mediation Bill 2012  

Additional Memorandum from

The Chartered Institute of Arbitrators (Irish Branch)

To the Oireachtas Joint Committee on Justice, Equality & Defence.

  1. Head 4(1) (b) (i) & (ii) – “Mediation services” – Section 4 (1) (b) (i) should be amended to read “(i) information concerning mediation services provided by accredited and licensed mediators“,

And

Section 4 (1) (b) (ii) should be amended to read “names of persons who are accredited and licensed mediators or organisations of such persons, qualified to provide mediation services.”

Head 4(1) (b) (ii) – “insofar as is possible” - It is always possible, even if somewhat imprecise. The words “insofar as it is possible” should be deleted. Section 68 of the Solicitors Act 1994, for example, imposes an absolute obligation on a solicitor, as soon as is practicable, to give written estimate as to costs, (even though it does not set out the implications of default).

Head 4(1) (b) (ii) – “where practicable” - It is always practicable, even if somewhat imprecise. The words “where practicable” invite failure to comply and should be deleted. (Perhaps the words “as soon as is practicable” could be used).

  • Head 4 (2) (i) (a) – a party’s declaration re consideration of mediation to be provided.  In family law legislation, for example, a solicitor’s certificate that they have advised the parties as to counselling / mediation is provided for.  This declaration of a party is better and is to be welcomed. However, this should go further than just stating it has been considered and should state why mediation has not been adopted or have failed of as a dispute resolution mechanism. Otherwise it may simply become formulaic. Furthermore, this declaration can then be taken into account and can be considered by the court when considering the question of costs under section 19.
  • Head 5 – Barrister’s duty to advise on mediation – Again, there should be a requirement for the client to acknowledge the advice, in writing, and again state why the option of mediation was not pursued. The “double whammy” of a declaration under section 4 and an acknowledgement of counsel’s advices under section 5, will ensure that the client is fully informed as to the mediation options, and has made a fully informed choice not to proceed, cognisant of all the implications (including implications as to costs) of failing to avail of the mediation option.
  •  Head 6 (2) b – the mediator’s Code of Practice – this provides that parties and mediator sign an agreed statement and makes it an obligation on the Mediator to state the code of practice, (if any), to which he/she adheres. It should be mandatory for Mediators to declare the Code of conduct they practice under – therefore remove the words ‘if any’.  The Minister should have the power to publish a (default) code of practice, and recognise called of practice published by recognised bodies (such as the Chartered Institute).
  • Head 6 (4) – the Mediator to state reasons for withdrawal – The parties may withdraw without explanation, but a mediator may not. There is a potential for breach of confidentiality in imposing an obligation on the mediator to state the reasons for their withdrawal. The mediator should be free to withdraw without having to state a reason. Indeed, the LRC report recommended as much. It should be an option, not an obligation.  The explanatory notes refer to the nature of the “policy perspective” which allegedly requires this disclosure, but the nature of the “policy perspective” is not stated. As previously mentioned, it could involve compromising if not prejudicing the confidentiality of the parties, that the mediator states reasons. One would have thought that it was undesirable from a policy perspective, that confidentiality would be breached.
  • Head 6 (6) – participation of non-parties – allows for one or more non-party participants to be present and assist a party during the mediation process. This should be “where the parties and the mediator agreeone or more non-party participants may be present and may assist” etc…. The LRC report page 41 states: “on the issue of non-party participants the Commission recommends that parties may agree that a non-party participant be allowed to participate in the mediation.”    This provision in the draft Bill omits the agreement option. It is the job of the mediated minutes the mediation process and the presence of a non-party may inhibit that management, and may inhibit agreement. Accordingly, the admission of a non-party to the mediation should be where the parties and the mediator agree.
  •      Head 7 (2) (a) – the mediator must ensure the parties have the capacity, at all stages of the mediation. – How is this to be achieved? It would be better that, having established at the outset that the parties had capacity, there would be a presumption that such capacity continues, unless and until the mediator is made aware that they may no longer have such capacity.
  •   Head 7 (2) (e) – mediator must ensure the parties understand any mediated agreement – in circumstances where the parties are legally represented/advised, the mediator can rely upon the parties representative/advisor to so advise them and to ensure that the party understands the implications of the mediated agreement. Where the parties are not legally advised at the time of mediation, the question then arises as to how the mediator is to “ensure” the parties understand any mediated agreement? It is to be suggested that in the absence of a party being legally advised that the time of entry into a mediation agreement, the mediator should be entitled to make a statement as to their understanding of the nature, purpose and effect of the mediated agreement, which statement is to be regarded as a statement for the purposes of section 19.
  • Head 7 (3) and (4) – Mediator’s suggestions for settlement – Rather than a mediator suggesting terms after mediation has failed, (when there is a danger that the parties would become intransigent) it should be made clear that the mediator is free, with the agreement of the parties, to suggest terms for settlement at any point during the mediation.
  • Head 8(1) requires Mediator to give details of experience. – Mediators should be accredited and licensed. It may be that there is a trained & accredited mediator, who lacks experience, or an experienced accredited mediator who had no training (apart from accreditation training).  The LRC Report recommended this provision with a view to ascertaining knowledge and experience of ‘screening’ in family law cases. It is recommended that the head would be amended to require disclosure of mediators “training and/or experience”. 
  • No attempt whatsoever is made at regulating the profession, the training of mediators, and the administration of the profession or any other method of quality control of the mediator’s profession. It is particularly surprising that there is no reference to minimum training requirements or standards (especially in the case of family disputes, when the same draft legislation contains a broadly drafted provision facilitating and encouraging the participation of children in mediation).
  • The approach taken by the draftsmen in this regard is broadly in line with that of the Law Reform Commission, though surprisingly does not follow its recommendation in relation to specialist training. There should be a statutory provision providing for the licensing, regulation and supervision of the mediation profession, such as statutory scheme providing for the licensing regulation and supervision of trained and qualified and accredited mediators, accredited by recognised bodies. Otherwise, “cowboys” can simply label themselves as “mediators” and potentially cause havoc, at the parties’ expense, thereby injuring the reputation of mediation and professionally trained and accredited mediators.  An example would be former “money managers” who would now seek to market themselves as “debt mediators”.
  • Head 8 (2)(b)&(c)  – provision of details regarding continuing professional development – as part of statutory provisions providing for the licensing, regulation and supervision, CPD should be mandatory – remove “if any” and likewise remove ”if any” in 8(2) (b) and 8(2) (c).
  • Head 9 (1) (a) – Minister publishing a Code of Practice - There could be a general / default Code of Practice promulgated, but allowance made for specific approved Codes, such as the Code of Practice from the Chartered Institute of Arbitrators.
  • Head 9 (8) – TO BE INSERTED: - “(8) A mediator shall, prior to the commencement of the mediation process, provide to the parties, in writing, details of the (published or approved) code of practice to which he or she adheres, which code of practice shall be deemed to form part of the terms on which the mediator is engaged by the parties.” - This would make the published or approved code part of the contract of engagement.
  • Head 12 (1) (b) (ii) – attendance at information sessions - Obligatory attendance at an information session on mediation (and its advantages), (as distinct from obligatory participation in dispute resolution through the mechanism of mediation), will not detract from the overall voluntary nature of mediation. Such a provision would ensure the parties are fully informed in their choices as to whether to proceed with the option of mediation, or not.  At the moment, a major difficulty in promoting mediation is the fear of lawyers that it will adversely affect their litigation practice income, (i.e. reduce the amount of costs they could hope to receive in relation to acting on behalf of the client (as compared to fees that might accrue during litigation)) and there is a tendency to “water down” any mention of mediation.  There should be provision for the Minister to specify by statutory instrument, approved bodies, such as CIArb who would provide such information sessions.
  • 17.  Head 12 (5) – the Court’s consideration of costs – ADD TO THE SECTION: -In the absence of evidence to the contrary, it shall be presumed that mediation has a reasonable prospect of success”. This would make clear that it is the obligation of a party to litigation who chose not to avail of mediation, to explain why it would have no “reasonable prospect of success.”
  • Head 13 (1) – Mediator’s report to Court – this requires a mediator to prepare a report for court. The neutral nature of this report should be emphasised, as recommended in the LRC report.  

Chartered Institute of Arbitrators (Irish Branch)