First a word of introduction to CIArb here in Ireland and worldwide.
We are a global community with 30 regional branches and chapters across the world, offering a global network of ADR professionals.
A Royal charter was initially granted in 1979;this is reserved for professional institutions and charities working in the public interest, Significant changes to the Institute’s governing structure from new Charter and Bye-laws granted in 2005.
Objectives
- Promoting access to non-court dispute resolution
- Education, training & professional qualifications
- Standards & guidelines, approval & accreditation of practitioners,
- Academic & professional resources
Promotion of research, new professional policy and practices concerning dispute resolution as a ‘Learned Society’; working closely with academic institutions and other professional bodies across the world.
What has brought us here today?
More important at the end of what will hopefully be an enjoyable and productive event will be where do we go from here to deepen the understanding and practise of ADR in business and commercial life in general?
CIArb Ireland has embarked on a general campaign notably with the business organisations to promote the advantages of ADR as a cheaper and more amicable way of resolving disputes in commercial and business life.
We are making progress and I want to acknowledge the support we have received for this event from IBEC and the CBI through its joint council, and we intend to develop this dialogue to bring the message that ADR is good for business to every moving part of the economy.
We are currently engaged in the early stages of a campaign with Chambers Ireland in partnership with the Law Society to bring these messages to businesses at a local level.
This is the age of ADR. What has first of all brought us here is to promote and assist a discussion on ADR. In that sense the most immediate trigger was the imminent and now implemented transposition of the EU Directive on Mediation into law in both jurisdictions on the island.
Many more businesses now trade on an all island basis; part of the peace dividend. One of the lubricants of successful business relationships is effective dispute resolution machinery. This is especially the case where problems need to be resolved but business relationships need to go on.
Overarching that specific measure is the general development of ADR as a dispute resolution mechanism, and mediation in particular.
I sometimes wish we had a new word to describe this process. Mediation is a word in fairly common usage and this may lead to an element of complacency about the imminent changes.
It is very important that this is not seen as some ‘flash in the pan’ new fad and that it is genuinely embraced in our commercial transactions, in the workplace and at the level of interpersonal disputes.
Solomon’s ultimatum in the famous bible story to the families in dispute is an early example of skills mediators are taught to practice known as ‘reality checking’!
The editor, until recently of our Journal ‘The International Journal of Arbitration, Mediation and Dispute Resolution; Professor Derek Roebuck is an expert on the history of ADR and the author of such books as Early English Arbitration, Ancient Greek Arbitration and… ‘The Charitable Arbitrator; How to mediate & Arbitrate in Louis XIV’s France’.
This gives a flavour of the pedigree of alternative dispute resolution.
In his book ‘Roman Arbitration’ Professor Roebuck describes the Compromessum; an early form of arbitration agreement but whose connection to the modern word compromise brings us along the route to the modern core of mediation without any great need for Latin scholarship.
One of the strongest advocates of ADR and mediation has been the judiciary, both on the bench and off it.
It was notable when the report of the Law Reform Commission was published last October on Mediation and Conciliation that it was launched by the Chief Justice Mr John Murray thereby conferring on it very powerful judicial approbation indeed.
This report has found further approbation in the Review on Access to Justice in N. Ireland where in the section on ADR it says (p60)
At the outset we wish to refer.. to the Irish Law Reform Commission report, “Alternative Dispute Resolution: Mediation and Conciliation”, published in November 2010 and which we regard as an authoritative work on ADR with many proposals and ideas that are potentially applicable to this jurisdiction23.
I am sure Mr Justice Gillen will add to these encouraging sentiments.
On the bench we now have a line of authority in the English courts which has reversed the traditional rules on costs. A number of decisions including Halsey v Milton Keynes trust have said that a party which refuses to mediate may, even if they succeed at litigation get an adverse finding on costs.
The views of Lord Justice Dyson, author of that judgement may be read in the current issue of the Institute Journal Arbitration; there he summarises the three propositions in Halsey as
- Mediation is important and should be used in many cases but it is not a universal panacea.
- Parties should not be compelled to mediate if they are truly unwilling, BUT
- Adverse costs orders are an appropriate means of encouraging parties to use mediation
There has been a recent case reported this month (September 6 2011)in which the English High Court commented on mediation in Samuel Smith Old Brewery (Tadcaster) v Philip Lee (trading as “Cropton Brewery”) [2011] EWHC 1879 (CH)
In the introductory paragraph of the judgment, Arnold J said that the dispute was one which ought to have been capable of settlement out of court a long time ago. Instead, it had grown into a case the costs of which were out of all proportion to what was at stake. “One explanation for this is Yorkshire pride; but I fear that the English legal system bears a measure of responsibility as well.”
In a postscript to the judgment, the judge said that he considered that the case should have been referred to mediation at an early stage. “The legal process appears to have caused the parties to become entrenched in their positions rather than seeking common ground. I suspect that the costs will themselves quickly have become an obstacle to settlement…. in future disputes of this nature the possibility of mediation should be explored as soon as is practicable.
The Irish Govt has made commitments to enact the bill which accompanied the LRC report in and it has now been announced that a bill will be published in 2012.
All of this has been done in the context of reducing professional costs to business but with the additional advantage that alternative dispute resolution, and mediation in particular hold many advantages over traditional methods of dispute resolution such as litigation.
I might add in passing that the draft bill will cover employment related disputes; a mysterious omission from the 2010 Arbitration Act.
The N. Ireland report on access to justice lists the advantages of such alternatives in addition to costs as retaining party control, its voluntary nature, flexibility, an agreed outcome and it is less stressful than a court appearance. So there are financial, social and psychological advantages to mediation
Frankly, there may be some way to go in getting the message across to business that there is a better way to avoid and resolve disputes, and a cheaper one to boot although the recent publication by the Ombudsman here on alternatives to Court will help. One of our speakers today had a hand in that initiative, Dr Jack Anderson.
So the ADR community will have an important role in promoting the message that there is a better way to avoid and resolve disputes, and this conference is very much part of that process.
A word on the training and accreditation of mediators.
The LRC report noted the view that users of mediation had a ‘right to expect a competent service’ and not one tainted with the ‘second class’ justice criticism and went on to warn of the dangers of the ‘enthusiastic amateur’ as mediator.
CIArb Ireland has over 700 trained and accredited third party neutrals; arbitrators, mediators, adjudicators and others whose services can be made available through the independent nomination process we operate.
However we support its conclusion that a system (it proposes a non statutory one under the auspices of the Dept of Justice) should be developed under which the accreditation of service providers, and of individual practitioners could be structured (while making special comments about family practitioners).
We are very proud of the standard of training offered by the Chartered Institute, and while other providers offer a similar standard not all do.