THE McCARTHY report recommended that mediation should be used in and between Government parties, as an alternative to litigation. The Mediators Institute of Ireland has instigated a discussion forum to consider how this recommendation can be implemented.
The first meeting, to take place in the new year, will be attended by representatives of service organisations, the judiciary, Government departments and key stakeholders.
The Mediators Institute has also initiated a second discussion forum to specifically look at the use of mediation in family disputes and in relation to separating couples. This will meet in early December.
Mediation provides a more effective process for dispute resolution than rights-based processes such as investigation and litigation; it costs a fraction of the cost of litigation and is sufficiently flexible to address the most complex and protracted disputes while allowing for constructive and holistic resolution.
Despite these benefits, mediation is greatly underused, to the detriment of parties, organisations and public finance.
Mediation has been strongly endorsed by the judiciary, public representatives, trade unions and department spokespersons, as well as in the McCarthy report, yet still most disputes – whether commercial, organisational/ workplace, family or community – are dealt with through the formal processes and often without the parties being aware that there is a cheaper, less stressful and more flexible option.
An obvious area where the system is failing potential parties is the area of separating couples.
In 2006, of approximately 26,000 applications to the family courts, only 3 per cent had had any involvement in mediation.
Each case represents two people (not to mention their children), and even if some of the cases were second or third applications by the same couples, we are looking at in excess of 40,000 people – not including children – involved in court proceedings.
What makes this low mediation figure even more extraordinary is that solicitors, by law, are required to explain the benefits of mediation to their clients.
The institute has identified the need for a process whereby a solicitor, who may or may not be a mediator, explains the process or benefits of mediation to the parties and where they then certify that this has happened.
The preference would be for a mandatory mediation information session given by an accredited mediator and that legal proceedings could not issue until the mediator had certified that each party had attended the session.
The development of a triage system – whereby urgent cases are identified and dealt with separately and quickly by experienced mediators, with the support of appropriate services as required to allow the parties to make an informed decision in relation to their options – would be a key step.
Different predefined processes would be needed to support the process and to allow for agreements that would be acceptable to the courts.
While there is currently no statutory regulation of mediation in Ireland and anyone can set up a practice and call themselves a “mediator”, the institute has developed best practice procedures for the regulation of mediators and mediation training that are internationally recognised.
Under practice rules, every mediator with an Mediators Institute practising certificate must have undertaken appropriate mediation training, have professional insurance and be subject to the institute’s code of ethics and practice and, importantly, to its complaints and disciplinary procedures.
The institute is currently finalising its new code of ethics and practice, which will provide greater clarity in relation to what can be expected within the process of mediation and, greater protection to the parties and the mediator.
The way forward for mediation has to be appropriate regulation of mediators. The institute has gone a long way to establish open and transparent structures to provide for this.
Mediation in Ireland is at a critical juncture: more and more it is being incorporated into legislation; the Law Reform Commission Report is due to issue in the first quarter of 2010 and the European directive [on mediation] will come into local law in May 2011.
The report of the Business Disputes Resolution Task Force of July 2009 recommends that all solicitors should have sufficient training to have the confidence, competence and experience to advise clients, where appropriate, of the possible incorporation of a mediation clause in a contract, and the wording of such a clause.
It is time for more holistic and focused initiatives for the sake of the parties, organisations and the public purse.
Karen Erwin is president of the Mediators Institute of Ireland (MII), a not-for-profit organisation which is the professional association for mediators in Ireland. The MII does not provide mediation services but accredits mediators and mediation training programmes .