Alan Shatter, deemed provocateur of his own profession while Minister for Justice, brought forward ‘Heads’ for a Mediation Bill based on recommendations from the Law Reform Commission. These cleared Oireachtas Justice Committee scrutiny in June 2012. There has been little complaint from the legal community about delay in emergence of a follow-on Bill.
A better awareness of how mediation works may indeed be needed. The Oireachtas Committee reached the puzzling conclusion that the proposed legislation ‘’would provide greater access to justice for citizens”. Mediation offers, in fact, a way to sidestep the justice system, with its attendant costs and invariable tendency to intensify antagonisms.
The process helps those locked in conflict, whether in family relationships, workplace or business, or who have claims against public authorities to settle their differences by direct negotiation, frequently achieving a measure of reconciliation. The courts system provides a necessary alternative to raw violence, but it doesn’t do reconciliation.
Once hostilities arise parties typically turn their backs on each other and cease to communicate. Recourse to a lawyer by an aggrieved party enables a complaint to be framed in terms of legal rights and wrongs. The system is geared to produce results. Legislation and prior court decisions provide a rulebook that can be resorted to in an analysis of the circumstances. And decisions of judges are backed by the police power of the State, with the ultimate threat of deprivation of liberty for failure to comply. A High Court summons can deliver shock and awe.
But the human response to threats is entirely predictable. We mount our defences and/or counterattack; the litigation machine starts to hum.
Relative to the massive tides of litigation in flow at any time the mediation alternative is offered only in a small minority of cases. One inhibiting factor is the apprehension that for a party to even to propose mediation to the opposing side will be interpreted as a sign of weakness, when the desire is to project a robust certainty as to the strength of one’s case.
Alan Shatter’s Heads for a Bill included provisions apparently designed to address this problem. Before proceedings could be instituted a statement would have to be signed both by client and solicitor confirming that the client had considered mediation as an alternative process and that the solicitor had advised such consideration of the alternative. The solicitor would also be required to provide information as to available mediation services. Similar obligations were to be imposed on barristers.
A key advantage of mediation is the ability of the mediator to have separate private meetings with each party in dispute. This allows the possibility of seeing where bridges can be built so that participants can be subtly guided towards resolution. For obvious reasons, this is not a facility that judges can provide. Justice is to be administered in open court.
An equally important feature of the process, however, is the encouragement that is given to disputants to discuss their issues in a collaborative, problem-solving way. Here what is key is to discourage them from using words of personal judgement, often laced with accusation and blame, which invariably inflame the dialogue. Negative judgements on the other always invite a kickback.
The American psychologist Marshall Rosenberg who died earlier this year developed a teaching method used worldwide to help persons in conflict to recognise the multiple ways, direct or subtle, in which we can be judgemental of others and the supreme value of what he termed Non Violent Communication (NVC). Mediation offers a space where parties are coached and encouraged to express their own needs and interests, to listen respectfully to the other without categorizing their behaviour. This is also a privileged space where apologies can be tendered without automatic financial consequences (a point relevant to medical claims).
The modalities of mediation demand a fresh approach to legal practice. Specialization in firms means that disputes are handled by lawyers whose business it is to fight cases, rather than practitioners whose everyday work is to forge agreements between clients. Arguably, too, the solicitor-barrister split is an inhibitor. Too many cooks can spoil a mediation.
Yet many lawyers now excel in using mediation. These will not need the propulsion of a Mediation Act before counselling clients to consider that option before issue of proceedings. And savvy clients should assert their preference.
Fergus Armstrong is chairman of the ONE~resolve mediation panel and a former chairman of McCann FitzGerald. He is a member of the board of RTE