The Development of Mediation in Ireland: Lessons from Other Jurisdictions
Date: June 15th, 2010 | Filed under: Blog, Mediation & Company Law Articles | Tags: ireland, mediationIn the 1970’s it was recognised in numerous jurisdictions[1] that the adversarial nature of litigation cultivates complexity and delay leading to increasing cost and in turn decreasing the access to justice for citizens.
This was compounded in the British and Irish jurisdictions by the publication of Lord Woolf’s Access to Justice Final Report[2]. This report highlighted again, this problem and the solution recommended by Lord Woolf was the simplification of regulations and promotion of a co-operative approach to dispute resolution.
During the Celtic Tiger, Ireland became the most litigious country outside the US. This demand was not met with an equal increase in legal resources, resulting in further congestion in the Civil Courts System. Now in the current Irish Recession, there has been an increase in contentious court cases but a reduction in Court resources.
There have been numerous pilot schemes, government initiatives and statutes implemented worldwide to promote the use of mediation, and this essay will briefly examine Ireland’s current Statues and compare them to England’s and British Columbia’s mediation enterprises in the commercial domain focusing on the facets of voluntary/compulsory issues, self determination and structural differences.
In establishing a structure for mediation a government can use a top down, “institutional driven approach to ADR”[3] or as Harvard Professor Sander envisions a multi-door courthouse where the Courts “fit the forum to the fuss.”[4] These courthouses would efficiently allocate appropriate dispute resolutions based on the “complexity of the law; the relationship between the parties; the priorities that the participants attach to various features of the dispute resolution process and the societal interest at issue.”[5]
The other end of the ADR spectrum is the bottom up approach or a community driven approach where grass level community centres attempt reconciliation at a pre court level. These initiatives are plagued by funding issues and are unfortunately temporary in nature.
The distinction between an institutional driven approach and community driven approach is important at it represents different methods of implementing ADR into a country’s legal system.
Voluntary vs compulsory
The Civil Liabilities and Courts Act 2004 S15 (1)[6] represents a mixture of voluntary and a discretionary use of mediation. A party can request a stay for the use of mediation and the judge has the discretion to grant it.
S15 (4)[7] allows for cost sanctions. This allows for the use of penalties for parties resistant to mediation.
In contrast, under the Commercial Court Rules (Ord. 63a of the Rules of the Superior Courts)[8], a party member can apply for or the judge can adjourn matters for the “consideration” of mediation. The judge cannot force a party to mediate. This represents the voluntary and self determination elements of mediation without the threat of cost sanctions.
The distinction between the methods of motivation, are important as studies have shown (below), a programme’s success hinges on a careful balance between voluntary mediation and cost sanctions.
The development of the Commercial Court List, was progressive in utilising mediation. It embraced some of the recommendations of Lord Woolf’s report[9]. The Commercial List ensures strict timelines and the identification of points of dispute between parties thereby increasing court efficiency.
The Commercial Court also uses a “case management conference”. This mechanism streamlines the time and the resources identified in the dispute.
The Commercial Court’s remit is limited as it will only consider commercial disputes valued over one million euro.
Further to this, Ireland has no statutory definition of mediation. This creates uncertainties at a judicial level. The creation of a statutory definition would also clarify the vague term of mediation for the public.
In England, it was felt that the use of cost sanctions would encourage the use of mediation. The Civil Procedure Rules 1999 (CPR) allows for cost sanctions to be awarded against the mediation resistant parties[10]. The use of cost sanctions is contrary to the voluntary and self determination elements of mediation.
The Automatic Referral to Mediation and Voluntary Scheme at the Central London County Court are excellent tests of this.
The Automatic Referral to Mediation (ARM) Pilot scheme was set up to run at the Central London County Court from April 2004 to March 2005. It randomly selected 100 cases each month to be referred to mediation, at the ultimate discretion of the judge.
However, the ARM was prematurely terminated from the ruling in the Halsey v Milton Keynes General[11]. It was held that “to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court” and to force mediation on a party would be a violation of Article 6 of the Human Rights Act 1998.
Despite the cessation of the ARM pilot several key findings were published[12]
- In around 80% of the cases, one or both parties objected to being referred to mediation
- Judicial pressure was unlikely to persuade them to mediate
- Only 14% of the cases initially referred to the scheme actually ended up in mediation
- In cases of unsuccessful mediation, parties had an additional £1000 – £2000 to their costs.
- Judicial time spent on mediated cases was lower, but administrative time was higher.
The cases were selected at random and therefore did not discriminate against cases that were unsuitable for mediation. This naturally would lead to lower success rate.
The findings suggest it is unwise to force resistant mediation parties into mediation. This just resulted in an additional layer of costs for the parties.
However the Scheme did show a marked decrease in judicial involvement and therefore a resulting liberation in court resources.
The Voluntary Scheme at Central London County Court (VOL) was setup in 1996 and was a party motivated mediation service. There was no penalty for rejecting mediation. After the case Dunnet v Railtrack[13], demand for the voluntary mediation schemes rose significantly, however the settlement rate declined from 62% in 1998 to 40% in 2003 and up to 45% in 2004.
In 1998, 4% of users attempted mediation from fear of costs or penalties, pressure from judges or court direction. A 2003 VOL Report found that this figure jumped to 25%. The increase is the direct effect of Dunnet[14] decision in 2002.
It has been suggested that the correlation between the uptake in mediation and the decrease in the success rate, was a result of pressure put on parties to mediate without any regard to whether the case was suitable for mediation[15].
The VOL scheme noted a significant low usage of personal injuries actions, only 40 of 1000 cases between 1999 and 2004.This low usage is was attributed to the insurance industry’s preference for keeping the process adversarial, thereby reducing claims.
A review of the types of claims entering into mediation in 2004 showed an increase in demand for high value commercial claims. This increase could be attributed to low costs associated with successful mediation.
From the findings of ARM and VOL, it is possible to surmise, that any programme in Ireland, must be voluntary in nature but also be able to filter parties that do not possess a wiliness to mediate. The use of cost sanctions, are unwise as they serve to motivate unsuitable cases into applying. The effect the Dunnet case indicates, the uptake of mediation is highest when the use of mediation is publicised.
The British Columbia’s (BC) Motor Vehicle Notice to Mediate preserved the voluntary aspect is mediation.
The Motor Vehicle Notice’s statistics are impressive, in its first four years the process has been used in over 6000 actions with a success rate of 74%.
The process is party motivated. It requires a Notice to Mediate to be sent 60 days after the filing of the first statement of defence and no more than 120 days before the date of trial. The process requires a compulsory attendance of a pre mediation session but the mediation process afterwards is voluntary. The Courts have the discretion to penalise mediation session resistant parties.
Early results indicated, within 10 months of the Regulation being introduced, of the 800 notices issued, around 250 were completed.
Further to this 50% of participants considered
volunteer mediation outside the Regulation.
Parties indicated a high satisfaction level with
their mediator’s performance.
This was attributed to the high levels of mediation training available in British Columbia combined with the gradual implementation of the Regulation.
The 50% of participants who considered mediation outside the Regulation also indicates a high understanding of what mediation involves. This is a result of the mandatory pre mediation session.
These findings have significant lessons for any mediation models implemented in Ireland. Training and accreditation is needed, combined with the slow implementation and advertisement of any future regulations or acts, with the mandatory use of a pre mediation session.
The Motor Vehicle Notice to Mediate was so successful, it was extended into other areas including Personal Injury disputes, Residential Construction disputes, Education disputes and General Civil disputes (excluding family law).
The rates of success of vehicular disputes in Canada compared to the London’s VOL, can be attributed to the structural differences of their domestic insurance industries.
Whilst the British Columbia’s industry promotes no fault claims, in contrast the UK’s industry is fault based. Fault based claims, create an adversarial and therefore litigious environment.
Ireland has a similar insurance system to the UK, however the introduction of a Notice to Mediate, with an obligation to attend at least one pre mediation session with a report system overseen by the courts could be successful within this jurisdiction.
Current Canadian research shows that the General Civil Disputes Notice is utilised less than the Personal Injury and Residential Construction Notices. This has been attributed to other successful mediation alternatives at a community level, which is less restrictive then the Notice Method.[16]
The success of the British ARM and VOL programmes were reduced through their failure to embrace the central characteristics of mediation.
In contrast British Columbia’s programmes owe their success to incrementally introducing mediation programmes, simultaneously allowing the population and the Civil Court System to adapt whilst embracing the main elements of mediation, whilst education the population of the benefits of mediation.
Future Developments
The EU Directive on Mediation in Civil and Commercial Matters is a minimum framework to supplement any domestic legislation. It only applies to disputes across EU borders. It gives a very loose definition of mediation, therefore allowing for flexibility and the differences in mediation across the Union.
The suspension of a limitation period is the most significant development. It will increase the attractiveness of mediation.
There are plans to extend the Commercial Court Rules (Ord. 63a of the Rules of the Superior Courts) to the lower courts. Although useful in encouraging mediation, the rules are limited to a “consider” rather than “direct” the parties to mediate.
The Law Reform Commission is due to publish a bill on Alternative Dispute Resolution and has already published the Consultation Paper on ADR. Its main recommendations are:
- Introducing a statutory definition for mediation and conciliation
- Integrating mediation and conciliation into the civil justice system
- Outline the key principles of mediation and conciliation
- Court enforcement of mediation and conciliation agreements
- Training and accreditation of mediators.
Conclusion
The Canadian Model shows that the development of a government top down approach is crucial for any Irish programme. As the public’s understanding of mediation improves, community based programmes will develop. Any programmes introduced should be introduced incrementally and embrace the central elements of mediation.
The threat of cost sanctions, are unwise as they attract unsuitable parties, delay proceedings and add an extra layer of costs. The use of mandatory, pre mediation sessions are central, in educating parties about mediation and to positively discriminate against unsuitable cases. This would ultimately liberate court resources and function to complement the Civil Courts System.
Eoin Pentony
Bibliography
- Alternative Dispute Resolution-Law Reform Commission
- Global Trends in Mediation- Nadja Marie Alexander
- The Expert and Dispute Resolver Spring 2004 Vol 9 No 1
- Twisting arms: court referred and court linked mediation under judicial pressure. Prof Hazel Genn
- http://www.ag.gov.bc.ca/dro/publications/bulletins/general.htm
- http://www.adrnow.org.uk/go/SubPage_133.html
- http://www.adr.civiljusticecouncil.gov.uk/updocs/client0/ARMSleaflet.doc
- http://www.dca.gov.uk/civil/final/contents.htm
[1] In America, the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (the Pound Conference) and in Europe the Florence Access to Justice Project
[2] Woolf, “Access to Justice Final Report” 1996, accessed 19 December 2009 <http://www.dca.gov.uk/civil/final/contents.htm>
[3] Nadja, “Global Trends in Mediation”, pg 5 2Ed., (2006) New York
[4] Rhode, “Access to Justice”, 1Ed., (2004) Oxford
[5] Rhode, “Access to Justice”, 1Ed., (2004) Oxford pg 43
[6] (1) Upon the request of any party to a personal injuries action, the court may—
(a) at any time before the trial of such action, and
(b) if it considers that the holding of a meeting pursuant to a direction under this subsection would assist in reaching a settlement in the action, direct that the parties to the action meet to discuss and attempt to settle the action, and a meeting held pursuant to a direction under this subsection is in this Act referred to as a “mediation conference”.
[7] (6) The costs incurred in the holding and conducting of a mediation conference shall be paid by such party to the personal injuries action concerned as the court hearing the action shall direct.
[8] A judge may at his/her own discretion or on the application of any of the parties, adjourn the matter before it, for a period not exceeding 28 days for the purpose of allowing the parties to consider whether the proceeding should be referred to mediation, conciliation or arbitration
[9] Woolf, Access to Justice Final Report 1996, accessed 19 December 2009 <http://www.dca.gov.uk/civil/final/contents.htm>
[10] CPR R1.4(2) and CPR R 26.4
[11] Halsey v Milton Keynes General NHS Trust (2004) EWCA (Civ) 576
[12] Lord Chancellor’s Department Research Series No. 5/98 “The Central London County Court – Pilot Mediation Scheme Evaluation Report” http://www.adrnow.org.uk/go/SubPage_97.html accessed 1/12/09
[13] (2002) 2 ALL E.R 850
[14] In this case the Court considered cost sanctions based on a party’s failure to consider ADR.
[15] Hazel Genn, “Twisting arms: court referred and court linked mediation under judicial pressure”.
http://www.justice.gov.uk/publications/docs/Twisting-arms-mediation-report-Genn-et-al.pdf, accessed 1/12/09
[16] J C Kleefeld & T S Woods-Mediation by regulating: The British Columbia experience. < http://www.mediator-roster.bc.ca/public/mediation/mediationinbc_articles.aspx> accessed 1/12/09
