19 plus big and small things you need to know for 2013

 Venues Nationwide, May/June, 2-5pm 3 CPD Credits

  SEMINAR CONTENT

The Latest New Companies Act 2012

We are about to get a new Companies (Miscellaneous Provisions) Act which will be number 16 and it’s expected to be enacted and commenced into law in  rapid quick time. It will deal primarily with accounting rules and may be the last companies act before the big Companies Bill.

 The Multi-Unit Developments Act 2011, Apartment Management Company Law.

Now fully enacted and commenced into law it introduces a whole new corporate governance code and yet another new “Rulebook”. This section will be very relevant over 500,000 people who are members, investors or residents of typical apartment complexes and gated communities. This new legislation is guaranteed to be strictly “enforced” by those with a vested interest, the members.

 Section 19 Mandatory Reporting under the Criminal Justice Act 2011

This creates a new offence for company directors, similar to the former misprison of felony offence, which relates to a failure now to report over 97 sections of law, “Relevant Offences” under company and other laws to the Gardai.

 New Reportable Offences Pursuant to Section 74 of the Company Law Enforcement Act 2001

This new list of reportable offences by auditors now exceeds 150 and with the additional 97 arrestable offences above.

 The Big Companies Bill 2012

This will then replace all 16 different companies acts and will stretch to over 2000 sections of new law. This is a quick overview of what you need to do now to get ready and why.

  The Fines Act 2010

The new A,B,C,D & E Class System which indexes all existing district court maximum fines so that the monetary values are brought up to date, it’s not good news for companies or company directors who receive a summons in the post for non-compliance with company law.

 The “New Articles of Association”

What’s Discretionary, what’s Mandatory, The Implications?

How, What and When to start altering the Articles of Association. How to draft?. How to deal with the move from model regulations to Statutory Default Rules? The new voluntary and compulsory provisions. This will not be discretionary, it will happen automatically if nothing is done.

 The “New Constitution Rules”

The 4 Conversion Procedures/Changeover Rules. This is a great time to get clear on these new procedures and have your paperwork in place on time. It’s relatively straightforward, however, it’s new, it’s is different and company directors will need to approve these changes in good time.

 Sections 371 and 383 of the Companies Acts

Companies Registration Office enforcement under these company law  procedures are ongoing and the consequences for company directors under the new Fines Act 2010 are very serious.

 The Category 1, 2, 3 and 4 Offences

Under the current system, company secretaries are challenged with hundreds of criminal offences pursuant to over 15 different companies acts spanning the last 50 years, regulations and statutory instruments. The new Companies Bill 2012 will streamline these criminal offences into four different categories.

  The Section 222 Directors Compliance Statement

Company directors of large companies will be required under the new legislation to personally signoff on their companies compliance with its relevant obligations and confirming that the “thing” has been done, or if it has not been done, specifying the reasons why it has not been done. 

 The Corporate Manslaughter Bill

This will provide for the introduction of two new criminal offences; the offence of “Corporate Manslaughter” and a further offence of Grossly Negligent Management Causing Death.

 Board Portals, E-Governance

How to use Board Portals to modernise and enhance Corporate Governance? What new tools are available to help the Board run more smoothly while giving directors the power to make better decisions, faster than before. New technology is available to facilitate meetings and significantly reduce the expense of Boardroom Packs.

 Are you ready for the Company Law Audit?

Are your manuals up-to-date with regard to the new obligations? Are you prepared for the new “Statement on Relevant Audit Information” and “Director Awareness Statements”

 New statutory duties of directors, “the Statement of Principal Fiduciary Duties of Directors”

 The duty to act “Honestly & Responsibly”

A full review of the case law in this area to assess if company directors will pass this test

 New CRO Strike Off Rules

 New regulations on Audit Exemption

New rules coming in shortly will extend audit exemption to just under €9 million

 CRO Update

The Practice and Procedure under the new Companies Act. What have the CRO planned for 2013? Are they about to introduce mandatory efiling for certain CRO forms?

 New rules on Shareholder Dispute Litigation

New rules that will be binding on the parties and the Mediation Bill 2012

 New merger procedures, true fusion and division of companies

 The designated activity company,

Do I stay as the CLS or convert to a DAC?

 Registered Persons  

New statutory registers for persons authorised to bind the CLS,

 The Legal Services Regulatory Bill 2011

What you might need to know about this proposed new legislation on legal services and the possible establishment of  multidisciplinary practices.

 Brian Walker B. L.

Brian Walkeris practicing barrister. He has over 35 years experience of company law and company secretarial practice, having previously worked with the accountancy firms of KPMG and PricewaterhouseCoopers. He has been CPD lecturer in company law to the main accountancy bodies for the past fifteen years.

 VENUES  

DUBLIN CITY

Radisson Blu Hotel, Golden Lane, 8

Monday  21^st May

Or

Tuesday 19^th June

 STILLORGAN

Stillorgan Park Hotel

14^th June 2012

 DUBLIN SOUTH

Maldron Hotel, Tallaght

Tuesday 26^th June

 MULLINGAR

Mullingar Park Hotel

Tuesday 22^nd May

 SLIGO

The Glass House Hotel

Wednesday 23^rd May

 LETTERKENNY

The Radisson Hotel

Thursday 24^th May

 DUNDALK

Crowne Plaza Hotel

Friday 25^th May

 CORK

The Imperial Hotel

Monday 28^th May

 KERRY

BrandonHotel

29^th May 2012

 LIMERICK

The Clarion Hotel, Steamboat Quay

Wednesday 30^th May

 GALWAY

The Radisson Hotel

Thursday 31^st May

 KILKENNY

Butler House Hotel

Wednesday 5^th June

 WATERFORD

The Dooley’s Hotel

6^th June 2012

 CAVAN

CavanCrystalHotel

Tuesday 12^th June

 ATHLONE

The Radisson Hotel

Wednesday 13^th June

 WEXFORD

Ferrycarrig Hotel

20^th June 2012

But lawyers say the reforms will just make things worse!.

WhatItalyactually needs is not a reform in quantity, but in quality, as Valerio Spigarelli, head of the penal lawyers’ body,  who said.

“The Government “insane” reforms would increase an already excessive number of attorneys, he said, adding that in theRomearea alone, it  has as many lawyers asFrance.

Lawyers also believe that the measures will undermine professional standards by cutting the length of probation by trainees and allowing businessmen to hold a majority interest in legal practices – raising a conflict of interest and undermining the lawyers’ independence”.

“There are already too many lawyers inItalybut this is not why justice doesn’t work. It is a question of inefficiency and lack of investment”, said Elio Lanutti, President of Adusbef.

The lawyers’ decision to go on strike against the Technical Government has emerged at the conclusion of the OAU (Advocacy Unit Body). “The decision to abstain from all judicial activity – the Assembly stressed – is the result of the Government attitude, which is not shared by lawyers.”

In addition to the total blockade, the protest will also flow toRomewith a sit-in in front of “Palazzo Chigi”, and a symbolic occupation of the courts.

This is not the first time Italian lawyers protest against the Government proposals, as we can remember the one week strike on March 2011 against the creation of a mandatory mediation proceeding for most of civil cases.

As the reform established a simple procedure by which disputants can try to settle without the use of lawyers, the response ofItalynational lawyers union was to call for a national strike, in order to avoid the drop in revenue.

Italian lawyers pointed they were not calling for the law to be overturned, but for changes that would substantially cripple it, such as making mediation optional for litigants rather than obligatory, and requiring “technical” (read that “lawyer”) assistance at the mediations.

On the other hand, there were also Italian lawyers supporting the change, thinking Mediation is a positive way of avoiding waiting many years for a Court judgment.

“Many lawyers fear they will be losing business, thinking that you are paid for litigation if you go to court” said Mr. Buizza, a Milan-based lawyer for Withers LLP, “but this is a short-sighted view, because lawyers also get paid for mediation work!”

Sonia Gabbiano, is a legal intern at CPD Seminars in Dublin specialising in alternative dispute resolution and mediation practice.

Collaborative Law is an advisory Alternative Dispute Resolution (ADR) Process. The Law Reform Commission describes collaborative law as “an emerging method of dispute resolution for separating or divorcing couples, where the parties and their lawyers agree to resolve the issues without litigation.”

[1] There are many reasons for the growth in this particular type of law in various jurisdictions, these include procedural advantages, cost benefits, it’s an alternative to the current adversarial system and from traditional litigation and  furthermore collaborative law can prevent the carnage, which usually ensues from family law litigation on the family as a whole. Hitchens J, the residing family law judge of the San Francisco Superior, describes collaborative law as ‘(empowering)….people to resolve their own disputes, and to do so in a more creative and more lasting manner than has ever been achieved by a court order.’[2]This new form of lawyering may also be applied to other areas of law. Although this has not fully developed yet, the success that collaborative law has had with family law disputes demonstrates that this is a possibility. That is not to say that there are instances where collaborative law is not advised and traditional litigation may be the only option. However, despite this collaborative law is clearly the way forward.

                                            The inception of collaborative law began in 1990 in the United States with Stuart Webb, a family law practitioner, who saw the effect that costs and the impact litigation was having on the family. [3] Webb’s aim was to help his clients under this ‘new paradigm’ in a more civilised manner and in the past two decades the process has expanded considerably. [4]The Collaborative Law Process  shares many of the principles of  mediation, in that it utilizes the assistance of skilled resolution professionals and so is inter-disciplinary in nature and allows the parties to gain greater control over the decision making process.[5] The lawyer’s role is simply to guide the parties towards a resolution, not to make decisions, with the aim of avoiding the use of the court. [6] That isn’t to say that this alters their duties or ethical obligations to the client. In other words, collaborative law can be deemed to be an ‘advocacy without litigation.’[7]

                                       Although collaborative law developed to aid family law disputes it can be seen that its process and the advantages which arise from availing of this alternative dispute resolution is the way forward in other areas of law such as commercial law, business dispute resolution, contract law and the law of torts. Although the use of collaborative law as it stands is mostly in relation to family disputes, I believe that in time this will change once it has established a firm footing in jurisdictions and the advantages of it are realised. For example, in Massachusetts it is used in resolving commercial disputes and Texas are considering extending the practice into some areas of civil law.[8]

                                    The collaborative process comprises of a series of four-way settlement meetings as outline in the Law Reform Consultation Paper on alternative dispute resolution. [9] As part of the procedural arrangement of choosing this avenue, the clients are bound by a ‘participation agreement’. This is the most essential part of the process and is the key to its success, especially in the family law area. It lays down a number of guiding principles and a basis for the conducting of the procedure. The elements of the agreement are as follows;

• Litigation prohibited. At the beginning of the process the lawyers contractually agree that if the process breaks down, they are disqualified from representing those clients.[10] Furthermore, at the heart of collaborative law is the agreement to settle the dispute outside of the courtroom, indeed, even the threat of litigation may not be used.[11]
• Transparency. This involves an honest and timely exchange of information.[12] This prevents a drawn out process and is time efficient. A great advantage and appealing aspect to the process compared to the timely wait and the back and forth element which is involved in litigation.
• Interest Based Negotiation. This form of resolution is used in the collaborative process as opposed to traditional positional bargaining. This is of massive importance in the family law area as the clients legitimate needs and objectives are the focus of the meetings and more than likely a “win-win” situation is achieved which is not only beneficial to the clients but any children which also may be involved if it is a family dispute.[13]
• Participation and control by clients. Clients have an active role in the collaborative process as both the solicitors and the clients are required to be present during negotiating sessions. [14] They take responsibility for the outcome and as such, resolutions are generally satisfactory for both parties.
• Experts jointly retained. Similar to that of mediation and litigation, experts in certain fields may be brought in for advice on particular issues. This is especially the case with family law disputes as it can often consist of a variety of issues. However, what distinguishes collaborative law is the fact that experts are retained jointly by the parties which significantly reduces costs.[15] The professional hired is an independent third party which results in any decisions made being for the best interests of all involved.

                   These various elements of the procedure process are innovative and alternative to the courtroom and demonstrate that collaborative law is not merely a waste of time but a structured way forward. The fact that litigation is prohibited is especially important in family disputes when there are high emotions involved or there may be children. The dispute is settled in confidence and without the risk of innocent children seeing their family being torn apart in such formal and intimidating surroundings such as a courtroom.  As a California Appellate Judge states; ‘Family law is where they shoot the survivors.’ [16]The confidentially aspect may also be appealing to those involved in business or commercial disputes as the media attention of court proceedings may be damaging to company profits and their good name. 

                                            Furthermore, as all parties have agreed to disclose all relevant information and are present during the negotiation sessions, the time taken to reach a resolution is greatly shorter than that in litigation. It has been shown that a result in collaborative law is reached after four to six meetings while a case in litigation may stretch for a number of years.[17] This is very important in family disputes as a lengthy court case is likely to damage family relationships. This benefit may also appeal to those involved in commercial dispute as it would be for the benefit of the company to resolve any issue as swiftly as possible as to do otherwise would be damaging to their reputation and company profits. A timely resolution may further attract those engaging in a contract law dispute if the conflict relates to a particular clause with a time limit attached.

                                        The fact that negotiation is interest based is another factor which contributes to collaborative law’s success. Both parties emerge from the process feeling that what was achieved was in their best interests and in the case of family law, also in the interests of any children involved. The opportunity to settle dispute on an interest bases idea and with the opposing party, while focusing on the parties “best-outcomes” would no doubt be also appealing to those involved in a Tort claim.   [18]

                                         Another advantage of collaborative law in both family disputes and other areas is the cost benefits arising from it. As already stated the process itself is cost efficient. The litigation process often takes a considerably longer period of time to resolve so lawyers costs and the cost of any professional experts needed will be significantly higher. Collaborative law may very well be the way forward in these difficult economic times today facing many families and companies.            It has been suggested by the Law Reform Commission in their consultation paper that the average cost for parties partaking in the collaborative law process is on average €6000 plus VAT, whereas in contrast, the average case taken to the Circuit Court costs each party approximately €12,000.[19]  However, parties must consider the fact that where an agreement is not reached, litigation may have to be initiated and this would incur an additional set of legal costs.[20]

                                    There has been a paradigm shift associated with collaborative law from an adversarial model to a problem-solving model in that the focus changes from looking to the future as opposed to the past, from facts to relationships, from faultfinding to reconstructing relationships and from positions to interests.[21] In my opinion this has been essential to the success of the process, especially in family law disputes. Collaborative law looks to terms that will suit all parties involved. There is not just one winner and one loser. The court system does not meet the conflict resolution needed and foster the good will which is essential in family law disputes and even in commercial disputes. [22] The Law Reform Commission point out in their report that ‘the adversarial nature of the proceedings does little to resolve the conflict in families lives but rather compounds and increases that conflict.’[23]

                                      Having looked at the advantages of the collaborative law alternative, we must also consider the times where it is deemed not to work and therefore essentially a waste of time. First, collaborative law will only work as an alternative way forward to litigation in this sense if solicitors are trained in the necessary communication and conflict resolution skills required.[24] Ethical considerations must further be taken into account as ethical rules, such as zealous advocacy, are ill-suited to this paradigm shift and clearer standards are needed to provide guidance in the area, otherwise collaborative law will be a waste of time.[25] There has been much debate about this issue. Lawrence contends that the collaborative lawyer falls in a “unique ethical position” while Beckwith and Slovin disagree, stating that ‘the collaborative lawyer has not taken off his advocacy hat or covered it with another.’[26]

                                    Furthermore, there are occasions where collaborative law should not be used and to do so would only be a waste of time as litigation will more than likely be the only option even after going down the alternative dispute resolution route. In family law, the collaborative process  is not suggested in cases were there has been domestic violence as one party might feel pressured into settling and not disclose information truthfully and in good faith. [27] It further depends on the honesty of participants and trusting them to put their emotional struggles behind them.

                                    The success of collaborative law in other jurisdictions, such as the United States and Australia demonstrates that it certainly isn’t a waste of time but very much the way forward in certain areas of law, namely the ones outlined above. In the US the practice of collaborative law is now widespread with the National Conference of Commissioners on Uniform State Laws (NCCUSL) developing a Uniform Collaborative Law Act, modelled on the Uniform Mediation Act, with the first draft being released in 2007.[28] The stated goal is ‘to encourage the continued development and growth of collaborative law as a voluntary dispute resolution option.’[29] The fact that there has been a suggesting of structured ethical guidelines on the process proves that collaborative law has established a firm footing in alternative dispute resolution in a short amount of time and intends to stay there. [30]Also in Australia, the Family Law Council recommended in a report to the Attorney General that a working group be established to develop national guidelines for collaborative law in family law practice.[31]

                                    Furthermore, there is an international body named the International Academy of Collaborative Professionals (ICAP) who promote the practice of collaborative law internationally. [32]With global developments such as these, it is clear that collaborative law is moving forward in a legal sense and will not disappear anytime soon. In fact, in our own jurisdiction an Association of Collaborative Practitioners (ACP) has been established with the aim of promoting collaborative law, supporting practitioners by providing ethical guidelines and training and one of the first cases on the matter was heard in the High Court in 2008. [33]

                                    And so, there is no mistake that collaborative law is not a waste of time but a revolutionary way forward. It has proved to be an effective dispute resolution approach in family law practice in other jurisdictions due to cost and time efficiency and leaving the emotional stress of the court room and the adversarial model aside. In fact, in Canada, it has virtually eliminated family law litigation. [34]These benefits also expand into other forms of legal disputes and it is only a matter of time due to changing economic and cultural factors that the collaborative approach in these areas will too take off.[35] Internationally and in our own jurisdiction the building blocks have been laid with the establishment of the various associations and uniform regulations. In Ireland, the Law Reform Commission firmly believe that collaborative law is the future and another viable option for the public in various areas of law and have even suggested that the collaborative process be defined in legislation. [36]

The collaborative law model originated and was developed in the US in the early 1990’s by a lawyer called Stuart Webb.[1] This alternative method of dispute resolution is practiced predominantly in the area of family law and was generated as a result of the profound dissatisfaction experienced by many lawyers and their clients with the traditional adversarial model.[2]

Healy expresses that this newly established model provides for “a structured framework for the resolution of family law matters where the threat of going to court is removed from the equation. The separating couple themselves, with the assistance and guidance of their lawyers, negotiate settlement of the issues between them by means of scheduled, face-to-face, four way meetings.”[3] Healy describes the traditional nature of family law proceedings as being “acrimonious” in nature, highlighting the bitterness or resentment many who are involved in legal proceedings, particularly with regard to family law disputes, may feel towards the legal system.[4]

“The objective of collaborative lawyering is to change the context for negotiation itself, and to provide a strong incentive for early collaborative, negotiated settlement without resorting to litigation.”[5] The use of collaborative lawyering endeavours to provide people with an improved alternative solution to the court system, providing support and assistance to families during a particularly stressful and tedious time in their lives. Macfarlane expresses the empowering potential that collaborative lawyering may have on future family law disputes, and that the process is likely to be an ample move forward in this particular area; “Presently limited almost entirely to the family law field, the Collaborative model suggests intriguing possibilities for the future delivery of legal services.”[6]

Collaborative practice in Ireland was relatively recently established in 2003, however at present there are more than 16 IACP members and 7 practice groups throughout the country.[7] Macfarlane indicates that “the phenomenal recent growth of interest in collaborative family lawyering epitomizes the deep discomfort with the traditional adversarial model experienced by many lawyers and clients”.[8] The increasing levels in divorce have opened the door to this new method of lawyering, whilst coupled with the discomfort associated with the traditional model, has led to an increased enthusiasm towards the collaborative process, which offers constructive support at a time when families need it most. The Law Reform Commission’s Consultation Paper on Alternative Dispute Resolution recognises the fundamental difference between settlement negotiations and collaborative practices, arguing that “instead of being a lawyer-centred negotiation, the negotiation becomes client-centred. The aim is to reach higher, deeper resolution and not just reach a settlement where the parties are worn out” [9]Macfarlane makes reference to this deviation from the traditional legal process, emphasizing the new role of the client as a crucial member of the process itself; “The insight of clients allows for an appraisal of the relative convergence or divergence between the clients’ goals and those of their lawyers in the collaborative process.”[10] Collaborative lawyering is conducive to the exchange of views within parties, as opposed to confrontation between their lawyers. Issues are dealt with directly amongst the parties and direct disclosure of information between lawyers permits a more honest appraisal on a no- contest basis. This also avoids the inclusion of third hand information which contributes to the accuracy of the facts in the case, as all proceedings take place in an open, non-confrontational setting, with both parties being present at the Four-way meetings.[11] Piomelli, challenges whether the decision making of lawyers in the traditional model was effectively a violation of the core obligation for allowing clients to decide the outcomes of their cases?[12]

The Law Reform Commission continues the Report, adding that “The creation of a safe environment is a huge benefit, and certainly promotes the type of environment which allows a concentration of intellectual energy solely on problem solving.” [13]Collaborative lawyering helps to distil problems and conflicts in a less confrontational manner. For many, the prospect of a court hearing can be daunting and therefore negotiating a mutually acceptable settlement is more easily obtainable when parties are in a more relaxed and less pressurised setting. This sense of security encourages parties to vent their feelings and wishes more openly, which would not necessarily be possible in a court room setting, thus emphasizing the important role honesty plays in the collaborative process. The fact that collaborative lawyering takes places entirely outside the court system is unique in its own right.[14] This approach to the legal process is also critically important with regard to maintaining a relationship between spouses and in the interest of any children who may be involved in such family law disputes. Lade asserts this importance, highlighting that “Collaborative law encourages spouses to honour the positive connections between them so that they can divorce respectfully and maintain good relationships with each other and other relatives.”[15] Lawyers are obliged to control the process, maintaining the honesty, respect and productivity on both sides.[16] In order for collaborative lawyering to be successful, it is essential that both parties enter the process with a uniform ambition to reach an appropriate settlement. Lade continues in this respect mentioning that the parties must “strive hard to resolve the case through good faith, reason, common sense and creative negotiations to reach a mutually acceptable settlement.”[17] This illustrates the level of commitment expected on behalf of both parties, and suggests that a level of respect is demanded of one another. Collaborative lawyers advocate the dignity which results from settling a divorce respectfully, without the hostility and acrimony which usually follows the traditional model.[18] This too has been acknowledged by ‘The Guardian’ in their article “How to get the perfect divorce”, recommending the use of collaborative law as a plausible step in the move towards attaining a more beneficial and practical divorce settlement, for both clients and their lawyers; “a technique that requires both parties to work together in a constructive manner- it is also particularly popular with many lawyers.”[19]

The Disqualification Agreement is imperative to the collaborative process and both parties are required to sign it before commencing negotiations.[20] The agreement asserts that all issues are dealt with expeditiously, contrasting the lengthy and exhaustive traditional legal route to settlement. The agreement disqualifies both lawyers, and all associated professionals, from the case and from further representation of their clients in the event that one or both of the parties choose to resort to litigation. [21]Lande refers to Lawrence, upholding that “this increased incentive to achieve settlement is what sets collaborative lawyering apart from mediation.”[22] Hence, the agreement attaches a strong level of responsibility and motivation to the counsel, encouraging them to settle entirely through peaceful and productive negotiations. However, Lande draws attention to the fact that “The Disqualification Agreement, even though helpful in many cases, it can also invite abuse by inappropriately or excessively pressuring some parties to settle when it would be in their best interest to litigate.” [23]This issue has been raised by the Law Reform Commission in their Report, underlining the ethical and professional problems arising from the Disqualification Agreement, quoting Davy; “With collaborative process practice there is a built in vested interest for solicitors to settle because if a case does not settle and one or both parties want to litigate, both solicitors have to withdraw from the case and have to instruct two new solicitors. This may put undue pressure on one side to settle on a case on unreasonable terms.” [24]This is particularly applicable to family law disputes, as it is justifiable that most lawyers and their clients will have the desire to conclude proceedings, and seek swift closure on a case without the use of litigation. The Commission invited submissions as to whether a statutory Code of Practice or Guidelines for Collaborative Practice should be implemented, however, the Commission currently considers that this is not necessary and recommends a Voluntary Code of Practice for Collaborative Practitioners.[25] In accordance with Section 14 of the 2009 Uniform Act, the best interest of the client is sought, outlining “the appropriateness of Collaborative Practice for the clients is of extreme importance as it ensures that the fundamental principles of self- determination and voluntariness are protected.” [26]The Commission stresses the gravity of this, and recommends that such provisions ought to be included in any Code of Ethics for Collaborative Practitioners.[27] This is of integral importance if the growth of Collaborative Lawyering is to continue in Ireland. All communication must adhere to strict client-confidentiality rules if the process is to succeed.

 However, under Rule 510(a) of the Uniform Rules of Evidence, “a person waives a privilege if he/she voluntarily discloses or consents to disclosure of any significant part of the privileged matter.” [28]This ultimately means that any conversations over- heard in the Four-way meetings could later be used as evidence and be admissible in court. The agreements for information sharing do not infringe on the Ethics Rules in relation to Client Confidences and thus accentuates the importance of lawyers to fully brief and inform their clients from the outset of negotiations on the collaborative process and what it entails.[29] I find it perplexing that if honesty and confidentiality are of utmost importance in collaborative lawyering, then why is there a risk that such information sharing could be used against a client if the parties decided to later litigate the case?

 However, a major advantage of collaborative lawyering is that it is less time consuming than the traditional legal process; lawyers require significantly less time to prepare formal papers and do not need to attend court hearings.[30] As a result, it is also considerably more cost-efficient in comparison.[31] Spain denotes that “It is natural for clients to be attracted to an alternative model of practice that values collaboration and holds some promise of reducing costs.”[32] This makes it particularly attractive to people in the current economic climate, and is a leading advantage in the area. According to Lande, “Too often our justice system results in divorces that are far too expensive and stressful, leaving both parties unsatisfied with unmet needs.”[33] In addition, collaborative lawyering permits parties to take control of their own resolution, which is a valuable incentive towards the process for both parties.[34] If parties are prepared to negotiate efficiently and timely in order to reach a mutually acceptable and fair agreement, then collaborative practice is certainly a progressive move forward in the area of family law disputes.

I regard one of the most influential advantages of collaborative lawyering to be the fact that the voice of the child may be incorporated into the actual divorce proceedings, and is taken into account.[35] In the traditional legal model, the best interest of the child is often presumed and advocated by the parents, or the associated counsel for that matter. However, a commendable shift in the role of the child in divorce proceedings occurs in the new collaborative model. There is an available opportunity to instruct a child specialist to engage with the children involved in the divorce proceedings, and to address any issues they wish to be raised to their parents and their lawyers in turn.[36] “The input from the child specialist is short-term and focused with a view to assisting the child through the separation/divorce process. This avoids a situation where children feel that they have to choose or take sides and empowers them, should they wish to avail of the process, by making them feel that they are working with their parents towards a solution rather than them perceiving, through lack of information and consultation, that they are part of the problem”. [37]The concept of “empowering” children so as to feel they are helping the situation rather than causing it, which is often a contentious issue in divorce proceedings, casts an exemplary light on the positive effects of honest negotiation in collaborative law. Macfarlane also questions whether the use of the collaborative model in a divorce settlement could have a better outcome for the whole family?[38] Indeed, Spain is of the opinion that the traditional process was in fact counter- productive. “Many lawyers see traditional divorce litigation as the most destructive method for resolving marital disputes for the families involved.”[39]

Despite this, some may argue that there is a potential collision between autonomy and paternalistic approaches to advocacy.[40] And that perhaps this is an ideological approach to collaborative law, taking into account that it is only a newly established legal practice in Ireland?[41] Healy proposes that Ireland may have a cynical view on collaborative lawyering as it is an American idea and “culturally, Irish people, are known better for keeping their cards close to their chests?”[42] Is it possible that the Irish people would prefer to remain with the traditional legal process of litigation due to a fear that there is no set precedent or personal experiences with regard to “ethical” behaviour of lawyers in collaborative lawyering?[43] I would contend that the most perceptible obstacles facing the growth of collaborative lawyering in Ireland are certain ethical issues surrounding the practice of personal privacy concerns and client safety.[44] Macfarlane asserts that the “central ethical issue for practice of collaborative lawyering is the quality and depth of informed consent to the procedural and perhaps substantive values of collaborative lawyering.” [45]It is evident that there is a level of uncertainty in this area and that such ambiguity in the practice could lead to its downfall. There is definitely a need for greater clarity of what clients should anticipate in the proceedings. There are three main areas which should be addressed to elucidate the problem:[46]

• Disclosure requirements- how much information can voluntarily be disclosed?
• Extent of private lawyer consultation- since collaborative lawyering is based on the idea of open negotiations between parties, should there be secrecy amongst clients and their lawyers?
• The acceptance of full implications and the Disqualification Agreement- clients must be fully briefed and have total awareness of what they should expect and understand the rules they must abide by before negotiations commence.

Glesner investigates whether there is a necessity for “zealous advocacy” in legal proceedings and whether this is lost in collaborative lawyering?[47] If the objective of collaborative lawyering is to reduce conflict, then has the traditional role of the lawyer as a “fighter” been extinguished?[48]

There are clearly ethical and important issues which are yet to be addressed and must be clarified, if the practice of collaborative law is to expand in Ireland.

However, my conclusive interpretation of the practice is that the positives outweigh the negatives on the larger scale. Collaborative lawyering has developed out of necessity and paves the way for expansion in negotiating acceptable settlements amongst parties, in a respectful and non- confrontational manner. It caters for the protection of the family, with particular regard to the children involved, and helps to maintain a relationship between spouses which is often destructed by court proceedings. It is a harmonious solution to a problem which is often convoluted by stress and conflict. In the present economic climate, it provides a cost- effective and efficient answer to divorce. If parties are willing to work simultaneously towards an authentic, acceptable solution, and adhere to the rules of the agreement, collaborative lawyering is absolutely the way forward in family law disputes and beyond.

 To conclude, Lade postulates that “if collaborative practice becomes firmly institutionalized, it could influence traditional legal practice, which might be its most significant impact.”[49]

The LRC defines collaborative lawyering as ‘a problem-solving method of dispute resolution, used primarily for the resolution of family disputes, where the parties and their lawyers agree, through a contractual commitment, to resolve the issues without litigation.’[1] According to Horgan, it ‘is a new dispute resolution model in which each spouse retains a solicitor to help them to negotiate an outcome that they consider, following independent advice, to be fair and acceptable.’[2]

Wade emphasises the disqualification requirement, describing the ‘necessary requirement’ that ‘the lawyers and other helping experts contract never to act as litigators if the diplomacy is unsuccessful.’[3] The collaborative divorce model was launched in 1990, when Webb sought to replace the adversarial process with one leaving families feeling less bruised and has evolved to encompass much broader genres of law than that of family law alone. The growth of collaborative law since its inception would appear to indicate that it is to form an integral part of the future legal landscape. In May 2008, President Mary McAleese opened the Second European Collaborative Law Conference by stating that Ireland has endorsed Collaborative Law as its first choice for dispute resolution[4], the conference was told it is likely to overtake the adversarial system as the principal method of resolving many types of legal disputes here within ten years[5]. There are however a number of concerns surrounding Collaborative law and it is important to note, as the LRC do, that, ‘ADR is not a panacea for all disputes, it has its limitations and is not always appropriate[6].’

Strickland comments that, ‘there is no strict consensus as to how the process should work’, it is flexible by nature, allowing parties to shape the negotiations as they see fit[7]. There are however, a number of general aspects to the collaborative law process. Parties are initially screened for suitability and must be willing to fully participate in the process in an open and honest manner, and there cannot be any instances or issues regarding abuse or safety of any party to the process. At the outset, parties agree upon and sign a participation agreement detailing how they will proceed. The ‘unique’[8] disqualification agreement is referred to by Strickland as ‘the only absolutely essential element of collaborative law’[9]. It requires that in the event settlement cannot be reached and the parties proceed to court, any lawyers and experts involved in the collaborative law process must withdraw and are disqualified from representing the clients in any future proceedings arising from the situation. Webb believes it is the disqualification clause that makes the process work, providing a ‘safe and effective environment for settlement’, removing the fear that information disclosed may be used in future litigation.[10]   Healy adds that the inconvenience this provides results in the added advantage of ‘discouraging parties from exiting the settlement process prematurely’, however it also comes with the inherent danger that it may force parties to unwillingly settle. The process is centred around four way meetings of clients and lawyers, based on a premise of full and open disclosure, in a confidential setting, with both parties working together toward a solution. The final product, upon success, is generally a collaborative law settlement agreement that becomes a court order.

Horgan differentiates collaborative law from the traditional adversarial system as a system where ‘each party works toward solving their legitimate needs rather than taking up positions that cannot be reconciled.’[11] As Strickland states, it ‘is not subject to the demands and limitations of the court and other jurisdictional rules’, it is a more casual and amenable to parties’ interests.[12] Walls places particular emphasis on the interest style of bargaining attributed to collaborative law within which ‘the legitimate needs of both sides are acknowledged and everyone works to try to achieve those needs.’[13]Collaborative law comes under the umbrella of Alternative Dispute Resolution, and forms part of what many refer to as the ‘toolbox of ADR’, it is however its own separate discipline within ADR. It differs from mediation in that a neutral is not present during negotiation sessions, unless agreed to by third parties. Parties may participate in Mediation without counsel present; however this is not generally the case in collaborative law. Lawrence distinguishes collaborative law from mediation by ‘the increased commitment to and incentive for settlement’[14]. Strickland highlight an important advantage of collaborative law, in that, unlike in mediation, a collaborative lawyer may remove a difficult client from the negotiation table and work with that client on getting back into the process.[15] Collaborative Law encourages client participation as opposed to traditional settlement negotiations, the pace and subject of which are largely controlled by lawyers. Macfarlane refers to the ‘game-like nature’ of traditional settlement negotiations being greatly reduced during the process of collaborative law[16].

There are numerous advantages to collaborative lawyering as an alternative method of dispute resolution, many of which crossover from other forms of ADR. There is less escalation of conflict, with the possibility of the preservation of long-term relationships far more likely, along with, in general, considerable cost and time benefits. A sense of client empowerment, a sense of being listened to and more informed decision making often results in more amicable and suitable settlements with a higher compliance rate. The LRC refers to as an ‘undoubted advantage’, ‘the ability to get speedy access to a process that may produce a satisfactory outcome for the parties in a short space of time’, referring to long delays in the court process as ‘clear barriers to justice’[17]. However, there exists, the possibility that the collaborative law process may breakdown and parties return to court, resulting in possibly an even longer process. The same risk is inherent in relation to costs, however, according to Simon, collaborative law typically costs clients one-tenth to one-twentieth of what a normal in court case costs’[18] Given that collaborative law takes place outside the court settings, it also has a strong potential to alleviate some of the strain on judicial resources. The Commission concludes that ‘careful and appropriate use of ADR processes is likely to reduce the overall financial costs of resolving disputes.’[19] The importance of this is underlined by the European Commission in its statement that ‘Access to justice is an obligation which is met by the Member States through the provision of swift and inexpensive legal proceedings.’[20]

Collaborative law is, as the Law Reform Commission point out is ‘not a panacea for all disputes’[21]. Firstly the suitability of Collaborative law must be established for the situation at hand, as Rack points out, ‘Even those promoting collaborative law recognise its limitations and conclude that it may not be the best choice for every lawyer, client or dispute.’[22] Where illegality is alleged or where a significant point of law is involved, the traditional channels will be the only avenue of solving the dispute. Collaborative Law is wholly unsuitable in cases where there are issues relating to domestic violence or the safety of a party or a child in the matter. There exists in Collaborative Law the risk that proceedings will be dominated by a dominant party, however, arguably, there exists some protection the screening process and in the presence of counsel, albeit in an advisory position. The flexible nature of the process brings with it the intrinsic risk that lawyers ‘conduct the process as they see fit and stray from the benefits collaborative lawyering supposedly provides.’[23] Wade appears to contest the apparent success rates of Collaborative law, ‘It is arguably only suitable for a very small client group, and therefore self-selects those conflicts which are ‘easier’ to settle, and leaves more difficult or escalated conflicts to other service providers.’[24] Nonetheless, even if one accepts Wade’s point, it may be argued that collaborative law still remains successful in those cases so-called ‘easier’ cases, keeping them out of the traditional adversarial system. Wade raises an interesting possibility that, ‘collaborative lawyering is a skilfully marketing dispute resolution services to a new group, who formerly exited the pyramid of conflict without professional services.’[25] This situation however would appear far more vulnerable to abuse by a dominant party than even the most forthright critic of collaborative law could argue.

Walls states, ‘The adversarial system is not best suited to the complex dynamics of family law work’[26]. As Matthews states, it has long been recognised that ‘family law litigants face a particularly hard road through the legal system,’ and ‘it does little to resolve conflict in families’ lives but rather compounds and increases that conflict in many cases.’[27]The adversarial system is based on a lawyer striving to highlight the differences between parties, promoting the position of their own client while attacking that of their adversary, resulting in an increasingly polarised position. As Walls states, ‘It is becoming increasingly clear that the courthouse is not the place to resolve family disputes and restructure family relationships.’ [28]The LRC refer to the ever rising and increasingly diverse number of cases arising in the area of family law. The LRC recommend that attendance at an information session on family dispute resolution processes, including collaborative practice, should, in general, be a statutory mandatory requirement in family law cases, with participation remaining voluntary. The rationale behind this is that very often, the lack of participation in ADR is a lack of awareness of the existence or availability of any alternatives or understanding of how these alternative options work. Importantly, the LRC allow for exceptions to arise in instances where there are issues of domestic violence or safety regarding a party or a child in the matter, ensuring the welfare of parties remains paramount. Collaborative law is however, by no means suitable in all family law cases, as Walls points out, family law clients are often coping with waves of strong emotions, and collaborative law is a process ‘based on reasoned judgment and realistic aspirations’, looking to the future rather than the past, and dependent on ‘honesty, cooperation and integrity of all the participants’ for its success[29].

Healy proposes that collaborative law may be a settlement process within which children are given a ‘mechanism to be heard’.[30] The issue is raised in the context of the proposed constitutional amendment on children’s rights and Ireland’s obligations under Article 12 of the United Nations Convention on Children’s Rights. As Shannon states, the ‘absence of a facility for children in Ireland to articulate their views, particularly where a case is settled in advance of the hearing, is a serious problem’.[31] Healy is of the opinion that collaborative law could serve to fill this void, as the ‘first settlement process with a specific regard for hearing the voice of the child in family law matters in a non-adversarial, non-judgemental way.’[32] The Collaborative law process provides the opportunity to work alongside a child specialist who may help the child through the separation process. This includes children in the process, making them part of the solution, avoiding the potential scenario outlined by Healy, where a child may feel, through a lack of information and consultation, that they ‘are part of the problem’.[33] 

Collaborative law however is not confined to the remit of family law, and is increasingly being used in other areas of dispute resolution, in particularly on the international front.[34] The IACP was originally founded in the mid 1990s as an organisation of family lawyers and professionals. As the practice of collaborative law continues to expand beyond the family arena, the IACP has expanded its scope by establishing a civil collaborative committee.

If collaborative law is to form a central part of the future legal landscape, it is essential for its maximum productivity that lawyers and other professionals engaged in the process are suitably trained. Wade describes collaborative lawyers as ‘skilled diplomats’ that, ‘cannot switch hats to another role as advocates or warriors.’[35] Strickland raises the concern that ‘the model is not clearly defined and may not have in place inherent safeguards for both clients and attorneys’.[36] However, proponents of Collaborative Lawyering strongly disagree, arguing that although the style is different, the primary and fundamental fiduciary duty to a client still remains. A lawyer working in the realm of collaborative law is performing in a much different professional role than when acting in the traditional role of representing a client. Indeed, Menkel-Meadow argues for separate ethical values for Alternative Dispute Resolution practitioners since their underlying values differ significantly from those premised on an adversary culture.[37] Tesler emphasises that lawyers may be unprepared through law school education and practice to meet the demand of collaborative law practice. [38]There has been significant progress in the training provided for those working in the collaborative law spectrum in Ireland. The Association of Collaborative Practitioners is the main organisation for collaborative practitioners in Ireland, and has been involved in the collaborative legal training of professionals in Ireland. According to Smyth, ‘Approximately six hundred lawyers have been trained in Ireland in the collaborative model by Tesler[39], who was at the forefront of the movement, along with Webb. It is important for the effectiveness of collaborative law that professionals involved be trained in both the model itself and the skills required for working within such as system, a step back from what Walls refers to as ‘the gladiatorial role’ traditionally played by lawyers[40]. Wade highlights the benefit of collaborative lawyering for the wider legal profession as a whole, ‘collaborative lawyering will have a spill-over effect into other areas of legal practice. Lawyers will incorporate some of the diplomacy skills back into their traditional practices.’[41]

Conclusion

Former US Chief Justice Warren Burger has stated, ‘The obligation of the legal profession is to serve as the healers of human conflicts. To fulfil this traditional obligation means that we should provide the mechanisms that can produce an acceptable result in the shortest possible time with the least possible expense and a minimum of stress on the participants.’[42] Collaborative law is clearly forming part of the way forward, both domestically and internationally; it has grown significantly since the early nineties, and has been predicted to overtake the traditional adversarial system within a decade. With such exponential growth however, it is important to bear in mind that collaborative law, and indeed all forms of ADR, do not represent a panacea for all forms of dispute resolution. There are instances in which collaborative law is unsuited to the case at hand and it must always remain of paramount importance that justice be done. On balance however, the disadvantages certainly appear to be outweighed by the potential benefits, and none appear so detrimental that they could not be worked through over time, leaving the process certainly preferable to the traditional adversarial route, in particular in family law disputes. In order to maximise the potential of collaborative law, it is fundamental that professionals receive proper training, both in the model itself, and methods of practicing. Strickland is of the opinion that the popularity of such training sessions is in itself indicative of the ‘vitality of the movement’.[43] Tesler concludes, ‘no other dispute resolution model matches collaborative law in its ability to manage conflict, elicit creative ‘out of the box’ solutions and support parties in realising their highest intentions for their lives after the legal process is over.’[44]

Bibliography

• Law Reform Commission Report on ADR: Mediation and Conciliation (2010)
• Law Reform Commission Consultation Paper on Alternative Dispute Resolution. (2008)
• Horgan, ‘Let‘s Work Together’ (June 2005) Law Society Gazette.
• Walls, ‘Collaborative law a new and better way’, Sunday Business Post (25 March

2007)

• Abney, Sherrie R., “An Entire Nation Endorses Collaborative Law As Its First Option, Continuing A Trend Toward Acceptance Around The Globe,” Vol. 17, No. 3  Alternative Resolutions 18
• Wade, ‘Thoughts and Themes, Collaborative Lawyering – Some Preliminary Thoughts For Australia’, (January 2000) Bond Dispute Resolution News, Vol. 16.
• Macfarlane, Julie “The Evolution of the New Lawyer: How Lawyers are Reshaping the Practice of Law” (2008) J. Disp. Resol. 61
• Green Paper on alternative dispute resolution in civil and commercial matters. COM/2002/0196.
• Tesler, ‘Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation.’ (Section of Family Law, American Bar Association 2001)
• Healy, Connie. “ The Collaborative Process: A “Mechanism” to Hear the Voice of the Child”  (2010) 4  Irish Journal of Family Law 102
• K. Strickland, Putting “Counselor” Back in the Lawyer’s Job Description: Why More States Should Adopt Collaborative Law Statutes, (2006) 84 N.C. L. REV. 979, 986
• Barbara Smyth, ‘Collaborative Law’, (15 July 2009), <http://www.acp.ie/images/stories/pdf/collaborative_law.pdf>
  • S.G Webb and R Ousky, ‘The Collaborative Way to Divorce: The Revolutionary Method that Results in Less Stress, Lower Costs and Happier Kids – Without Going to Court.’ (New York: Penguin, 2007)
  • http://eurlex.europa.eu
    • www.collaborativepractice.com
    • http://www.rte.ie/news/law
    • www.irishtimes.com
    • www.acp.ie

 ‘The exponential growth of collaborative family lawyering is one of the most significant developments in the provision of family legal services in the last twenty five years’[1].Collaborative law (CL) is a method of alternative dispute resolution used primarily in family law cases in order to solve any issues without using litigation. These solutions are found by the clients while working in a safe clean environment where the main focus is on problem-solving. The collaborative process was first developed in 1990 by Stuart Webb,

 a family lawyer from Minnesota, who became increasingly frustrated with the way family law cases were being dealt with by the litigation system and the adverse consequences and unhappy clients resulting from this[2].

This paper seeks to explore the concept of CL and the growing need for it in primarily family law but also in other areas of civil law later in the paper. This paper will examine the core elements of the process that make it so structurally unique to other forms of resolution, the advantages of the process that will see it’s continued development into the future, its disadvantages that may support the idea that it is simply a waste of time and its comparison with other forms of resolution used in family law.

Advocates of CL consider it ‘a movement which contains the seeds for the revitalisation and transformation of the legal profession’[3] and, although that position may seem a little far-fetched, it will be critically discussed so as to conclude that it should be seen as the way forward and as a welcome addition to the regeneration of family legal services and beyond. 

CL: ‘The way forward’ from litigation?

As the growing scope and diversity of divorces present clients who want specialised, unique resolutions to suit their specific needs, it seems the court system is becoming less and less appropriate for resolving family law issues. Therefore, what is so wrong with litigation that we are in need of this new process of alternative dispute resolution?

Firstly, the court system is becoming increasingly adversarial and ‘uncivil’ in relation to family law, cases in which adversary hardly needs to be heightened further and only serves to pit the two parties further against each other[4]. This conflict increases from the abuse of discovery practices by both parties and their lawyers, making cooperation an even more alien concept[5]. Furthermore, there is a huge pressure on clients to compete against one another instead of cooperating, particularly when uncertain of the other party’s next move (this is known is the ‘prisoner’s dilemma)[6]. Also, lawyers have reduced the amount of counselling and ‘deliberate wisdom’ in favour of more special technical advice, especially in large private companies, making the process increasingly emotionally difficult for clients[7]. Finally, there is an absence of established discourse and a set of cultural behaviours to enable lawyers to discuss the possibility of cooperation[8].

CL attempts to address these problems with litigation and bring the area of family law, and perhaps even beyond to other areas, into a whole new era.

CL: ‘The way forward’ from mediation?

Mediation is another alternative dispute resolution process. Tesler describes it as ‘close cousin’ to CL. The major difference, however, is that in mediation the trained mediator is very often not a legal professional and is not allowed to advise either of the parties. A client’s lawyer is not allowed to engage in the mediation process and the parties and their lawyers are usually not permitted to negotiate with the other party. This can lead to misunderstanding and miscommunication being heightened as much is lost in translation.

In CL, because the lawyer accompanies their client through the entire process, this ‘may appeal to clients who may hesitate to commit to a dispute resolution process facilitated solely by a neutral mediator’[9], especially for the less knowledgeable and perhaps more vulnerable party[10]. Face to face meetings between the parties also allows negotiation directly with the decision makers instead of through an intermediary with limited understanding of the dispute.

However, it has been argued that CL aims only to infringe upon the work of mediators. Zaidel remarks that she ‘was left wondering if the new collaborative lawyer was merely a disguise for the traditional, competitive, adversarial lawyer- a new tactic to lure the public away from mediation and back into the lawyer’s den, only this time a den with chairs for mental health professionals’[11]. Mediation is certainly a viable option in dispute resolution but the security attached to having a lawyer present at all times in the collaborative process does make it seem more appealing to clients during conflict.

The Hallmarks of CL

 ‘The cornerstone of collaborative lawyering is the participation agreement’[12]. This agreement establishes certain fundamental provisions which guide both the clients and lawyers in the collaborative process. It is signed by all parties and includes a commitment not to go to court to resolve their issues, or even threaten to do so when they are in the collaborative process[13]. The participation agreement outlines each party’s goals, aims and values for the process. A full and honest disclosure of all relevant information concerning financial, child-related etc. (even if not expressly asked for by the other spouse) must be given and thus, flexible options are discussed, resulting in the specific needs of each individual client being met. The participation agreement also provides that any communications during the process are confidential, which promotes productive negotiations participation. The foundation of the participation agreement is that all parties are likely to be on the same page and thus, there are no surprises during the process, focusing parties solely on finding a suitable settlement.

The collaborative process often leads to a better quality deal for the parties[14]. Interest based negotiations are the focus and thus, the best solutions for the particular case will be tailored to the parties established needs, goals and concerns. By focusing on the parties differing needs and interests, a ‘win-win’ solution can be more easily determined than by focusing on what a court or jury will or will not do with a certain set of facts[15].

The multi-disciplinary team approach is where both parties mutually agree upon the use of mental health, financial and child professionals to help them explore workable ideas for resolution. Neutral mental health professionals improve communication and listening skills, and clarify and reinforce client’s needs and values. Neutral financial professionals help the clients assess their financial situation and explore optimal financial solutions to their problems. Neutral child experts address the issues of any children from the marriage and the effect the dissolution of the marriage will have on them. Although most lawyers do acknowledge the need for neutral experts in the process as they themselves may not have the necessary skills to work with certain conflicts which arise, they also note the difficulty in persuading clients of the need for more than one professional at the beginning of the case[16].

Legal costs are more efficiently used in the collaborative process. Money is spent directly towards actions concerning the settlement unlike litigation, where fees are charged for interviewing witnesses, preparing direct/cross examinations and opening/closing statements that never get used[17]. Overall, the cost of the collaborative process works out significantly less expensive than litigation, provided that settlement is reached. Where it is not, and the parties must go through litigation afterwards, the total legal costs of both processes are beyond what the majority of parties can afford. This, unfortunately, can result in clients feeling trapped in the collaborative process and settling on a solution that they do not fully want. This idea of entrapment will be discussed in more detail below when exploring the disqualification agreement.

Perhaps one of the greatest values of the collaborative process is its focus on the future and on the development of long-term solutions to the parties’ issues. CL regards the legal divorce process as only one of the steps along the way and ‘focuses the clients on their transition to a new world order; restructuring rather than just destruction’[18]. 

Challenges to CL

The disqualification agreement (DA) is considered the most fundamental, and often most controversial, element of the entire collaborative process. It provides that if the collaborative process breaks down and is terminated, the parties’ lawyers may not represent them in any future litigation or court proceedings arising out of the separation or act as a witness to such litigation[19].

 It encourages a settlement-only frame of mind by enormously diffusing the emotional and sometimes egotistical tension within the process. Webb[20] believes that it provides a ‘safe and effective environment for settlement’ as clients do not need to worry that anything said during the process will be used against them in any future proceedings. Also, it motivates all the parties involved to continue negotiations in meetings where impasse arises as all parties are aware of the adverse consequences of not doing so. The investment for the lawyer in the DA is also significant. Without it, if conflict does arise, the rate at which lawyers will bolt from the negotiation process towards the courtroom potentially increases[21].

However, this fear of termination can also lead to the collaborative process becoming extreme and inappropriate. Clients may feel trapped as, after the time and cost invested, they may find it difficult to terminate the process and begin litigation[22]. Webb regards this refusal to give up on the process in cases where it clearly is not working to be one of the major concerns he has with CL[23].

There are some lawyers who say that they simply could not abandon their clients if the process broke down. In response to this, Webb[24] commented that there are some lawyers that the collaborative process simply does not suit but suggests that there is an egotistical element implicit in this defiance, those lawyers believing that they are the only person who could represent their client effectively.

Webb considered the DA the element that would truly drive the idea of CL forward into the future as it allows the parties to concentrate on problem-solving in a safe, clean environment ‘where the success is measured in terms of finding the solution’[25].

The collaborative process is a new and diverse one for many lawyers today. They are “thrust into circumstances that motivate and support change in how they understand their job and how they perform it”[26]. This is known as the paradigm shift, whereby lawyers must shift there mindset, skills, negotiating techniques and behaviours from the traditional adversarial gladiator to the collaborative problem-solver. This is not an easy task and thus, training in the collaborative process is fundamental[27]. Lawyers must be trained to move away from their rights-based bargaining model towards more interest-based negotiations where client’s values and goals are the focus as opposed to the legalities of the case. Secret strategising must be replaced with transparency to ensure a win-win, not a win-lose solution. The interests and goals of the clients replace their legal positions and the whole process is centred around problem solving, and not blame on the other party. The lawyer’s role shifts from ‘zealous advocacy’ to an advisory capacity, merely guiding the clients through the various options for resolution that fit their specific needs and concerns.

 If education about the collaborative process is the essential key, surely this education should begin in law school. Law students, by being educated within a strong adversarial frame, are not developing the appropriate skills needed for alternative approaches to problem-solving and thus, they are unprepared for the realities of legal practice where most cases are ultimately settled by negotiation[28]. A full range of conflict management approaches should be taught to equip law students to perform effectively in the range of dispute resolution processes available, including collaborative law[29].  Henry[30] remarks that law schools must ‘significantly alter their traditional curriculum built on the adversarial process to produce problem solvers rather than litigators’. Thus, the growth of collaborative law begins through the education of law students so that they bring with them into their future legal practice the process of CL. 

This re-education and understanding of the paradigm shift also comes about from the existence of local practice groups where lawyers develop their professional relationships, improve their training and encourage new and existing practitioners in their use of collaborative law. This highlights the change that is underway in professional relationships from ‘one of professional combativeness and personal distance to one where high personal integrity is both professionally and personally reciprocated’[31]. Lawyers are engaging in much more personal relations with their clients and this is in line with the essence of CL as this is essential to the workings of the team model, where cooperation and interaction between all parties involved is essential.

Under divorce law in Ireland, there is no specific provision for a child’s voice to be heard during the divorce process[32] and this is a problem the CL seeks to rectify. Children’s rights are taking a step in the right direction with the proposed amendment to Art.42 of the Constitution which recognises children as individuals with natural and imprescriptible rights[33] and with Ireland’s ratification of the UN Convention on the Rights of the Child in 1992[34]. CL furthers the attempts made to given children the forum they need to express their views on the issues that affect them.

Firstly, because both parties in the collaborative process lay down their interests, goals and values in the participation agreement, the concern about their children’s futures can be made a priority from the outset.

Secondly, with the joint retention of neutral experts, a child specialist can be hired to act as the voice of the child in the whole process. Their role is to ascertain from the child what their concerns and wishes for the future are and to make these known to the parties of the collaborative process. The child specialist also helps in the preparation of a workable parenting plan for the future, having the interests of the child at the forefront at all times. Thus, the collaborative process seeks to listen to the voice of the child and ensure some role for children within the settlement process[35]. 

Ethical Issues and CL

The development of CL has resulted in certain ethical issues coming under scrutiny and the responsiveness of the CL movement to such issues will be vital in establishing its legitimacy and credibility[36].

The first issue is whether, when a party consents to use the collaborative process, they are fully informed of the procedural and substantive principles of the process. Provisions such as full disclosure and the disqualification agreement may seem acceptable to clients in theory but they may not fully understand the consequences of such provisions. Lawyers need to create a real understanding for first-time clients of what they are signing up for. However, this begs the question; are even the lawyers aware of what they are getting themselves into? It may be only their first or second CL case. However, Macfarlane[37] stresses that lawyers must ensure that their clients understand the full benefits but also the ramifications of the collaborative process. This is especially true in countries likeIreland, where many clients will have no idea what collaborative law is.

Secondly, not every case will be suited to the collaborative process and lawyers need to be able to effectively screen clients to ascertain whether or not the process will be workable in practice. For example, cases involving issues of domestic violence or prolonged drug or alcohol addiction may not be suitable[38]. There may be a huge fear of intimidation for these vulnerable clients. A system of screening needs to be established as currently, it is just based on the lawyer’s instincts and some basic general questions. Also to be examined is to what extent a client may feel intimidated and unable to freely negotiate in the process. Can issues be overcome in order to go ahead with the use of the collaborative process or is this too risky for the vulnerable client[39]?

As previously discussed, there can exist certain pressures on clients to stay within the collaborative process. Does this time, effort and emotional energy trap clients and make them feel that they cannot terminate the process and begin litigation? This is connected to the disqualification agreement and the downfalls of this have been already explored.

The Law Reform Commission[40] have examined these ethical issues concerning CL, but feel that there is no current need for a statutory Code of Practice or Guidelines for practitioners in Ireland[41]. The Commission have noted that a voluntary Code of Practice and Ethics may be introduced and would indeed be welcomed in Ireland. As noted by Kovach ‘New approaches to representation need fresh and different ethical guidelines and rules’[42].

It is vital for lawyers to recognise and respond to these issues to ensure the legitimacy and credibility of collaborative law is firmly established in the future.

‘And Beyond’: Civil CL and the Future

Although CL originated as a resolution to the problems in family law, the future of the process may include its development into other areas of civil law disputes such as employment, wills and trusts, building disputes, torts and business law.

This kind of expansion has not been as welcomed because it must be remembered that Webb created the collaborative process so as to ‘fit’ perfectly with the issues arising from family law practice. Its unique elements may not always correlate with the elements that arise in non-family law cases. Its greatest obstacle is the understandable reluctance of lawyers to terminate their relationship with clients if collaborative negotiations break down[43]. High stake litigation is one of the most profitable areas of legal practice for lawyers and it is the large corporate entities that provide this[44].

While civil CL has so far failed to keep pace with the growth of collaborative family law, leading collaborative practitioners, Abney and Hoffman, remain optimistic about its future. They concluded that ‘the civil collaborative movement has already been successful in more ways that are already apparent and great success is likely to ensue’[45].

This paper has explored the benefits of CL which support the view that it should be considered the future of family law and perhaps even beyond to other civil law areas. It can most certainly be considered a way forward from the areas of litigation and mediation and the hallmarks of the collaborative process are seen as a ‘return of common sense and dignity to dispute resolution’[46]. Like any form of ADR, there also exist weaknesses which should be critically examined by the International Academy of Collaborative Professionals and suitably addressed in order for collaborative law to be accepted as marking the new era of family law disputes. Webb[47] does not like to discuss the future of CL, simply saying that “whatever it is, it is”. However, he does admit that it is still in the development stage and although it still has some way to go, it ‘will give the public a further option in the quest for deep and lasting resolution, which benefits not only the parties, but their families and arguably also provides a wider societal benefit’[48].

Bibliography

• Abney S.R, Avoiding Litigation: A Guide to Civil Collaborative Law, (Trafford Pub 2005)
• Axelrod R, The Evolution of Cooperation (New York: Basic Books,1984)
• Barkai J.L and Kassebaum G, (1989), ‘Using Court-Annexed Arbitration to Reduce Litigant Costs and to Increase the Pace of Litigation’, 16 Pepp. L. Rev. 45
• Hall D, ‘In Search of the Sacred’ (2005) The Collaborative Review.
• Henry J, ‘Lawyers as Agents of Change, Into the 21^st Century: Thought Pieces on Lawyering, Problem Solving and ADR Alternatives’ (1999) CPR Institute for Dispute Resolution 51
• Hoffman D.A, ‘Collaborative Law in the World of Business’ (2004) 6(3) Journal of the International Academy of Collaborative Professionals 6
• Horgan R, ‘Let’s work together’ (2005) 99(5) Law Society Gazette 25,25
• Korn M, Interview with Stuart Webb, Founder of Collaborative Law, The Collaborative PracticeToronto(Toronto, 4 April 2003)
• Kronman A, ‘The Lawyer Lost: Failing Ideals of the Legal Profession’, (Cambridge: Belknap Press 1993)
• Law Reform Commission, Consultation Paper on Alternative Dispute Resolution (LRC CP50-2008) 205
• Macfarlane J, ‘The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases’, [2005] (Departments of Justice Canada), http://canada.justice.gc/ca/eng/pi/pad-rpad/rep-rap/2005_1/2005_1.pdf. accessed 20 October 2011.
• Mallon P, ‘Collaborative Law: An Overview’ (2009) 9(1) JSIJournal, <http://www.jsijournal.ie/html/Volume_9_No._1/[2009]1_%20Collaborative_Law_Mallon.pdf>, accessed 27 October 2011.
• O’Callaghan E, ‘Collaborative Law as an Alternative Dispute Resolution Process: Unearthing Its Potential to Resolve Disputed Child Contact Cases’ (PhD research, University College Cork, 2006-2009)
• Rae M and Stewart J, ‘Conversation Peace’ (2008) 74 FLJ 21
• Scott M.A.K, ‘Collaborative Law: Dispute Resolution Competencies for the ‘New Advocacy’’ (2008) 8(1) QUTLJJ 224
• Solovay N, ‘The Future of Collaborative Law’New YorkDispute Resolution Lawyer (2008) 1(1) NYSBA at 62
• Stipanowich T.J, ‘Education and the Culture of Conflict Management into the 21^st Century: Thought Pieces on Lawyering, Problem Solving and ADR Alternatives’, (1999) CPR Institute for Dispute Resolution 32.
• Tesler P, ‘Collaborative Family Law’ (2003) 4 Pepp, Disp. Resol. L.J. p.317.
• Webb S.G and Ousky R.D, ‘The Collaborative Way to Divorce: The Revolutionary Method that Results in Less Stress, Lower Costs, and Happier Kids- Without Going to Court’  (New York; Penguin 2007)
• Wiggins J.L, ‘The Collaborative Law Process: Resolving Family Law Disputes With Dignity’ (2010) www.jenniferwiggins.com/…/Collaborative%20Law%20Process.pdf accessed 20 October 2011.

• Abney S.R, ‘The Evolution of Civil Collaborative Law’ (2009) 7(15)TexasWesleyan Law Review

• Harold G.T and Murch M, ‘Children of Separated and Divorced Parents: Theory, Research and Future Directions’, (2004) 7(3) I.J.F.L 16 at 18.
• Healy C, ‘The Collaborative Process: A “Mechanism” to Hear the Voice of the Child?’ (2010) 13(4) IJFL 102

• Heumann M & Hyman J.M, ‘Negotiation Methods and Litigation Settlement Methods inNew Jersey: ‘You Can’t Always Get What You Want’’(1997) 12 Ohio St.J. on Disp. Resol. 253.

• Kovach K.K, ‘Lawyer Ethics Must Keep Pace with Practice: Plurality in Lawyering Roles Demand Diverse and Innovative Ethical Standards’ (2003) 39IdahoL Rev 416.

• Law Reform Commission, Alternative Dispute Resolution: Mediation and Conciliation (LRC 98-2010)
• Macfarlane J, ‘Culture Change? A Tale ofTwoCitiesand Mandatory Court-Connected Mediation’ (2002) J. Disp. Resol. 241

• Slovin S.G & Triggiano Mary, “The Importance of Screening for Domestic Violence in the Collaborative Family Law Case” Legal Action of Wisconsin, Inc. Also, adapted from American Medical Association, ‘Diagnostic and Treatment Guidelines on Domestic Violence’ (1992).

• Tindall H.L, ‘Hiring Experts in a Collaborative Practice’ (2004) 6(3) Journal of TheInternationalAcademyof Collaborative Professionals

• Zaidel S, (2008), ‘How Collaborative is Collaborative Divorce?’, Family Mediation News 4.

In the introduction to the Law Reform Commission’s 2010 Report on Mediation and Conciliation, the Commission recommends that a “Mediation and Conciliation Act should be enacted to provide a clear framework for mediation and conciliation”[1] The Report itself makes over one hundred reform recommendations and includes a Draft ‘Mediation and Conciliation’ Bill[2]. To understand if this Draft Bill, if enacted, would lead to more questions than answers we will have to look at the current legislation governing Alternative Dispute Resolution in Ireland.

This involves firstly discussing the EC Directive on Mediation[3] and how the State has transposed the Directive through The Rules of the Superior Courts[4] and the EC Mediation Regulations 2011[5]. We will then go on to look at the LRC’s report and appending Bill and outline some of the basic problems, these include the ambiguity in defining what is meant by conciliation and the problems that could arise from such. In response to this, I will discuss how the Draft Bill is advantageous and how it does indeed give answers to questions that people may have in relation to ADR, here in particular I will use the example of the courts power to ‘stay’ proceedings. Finally, we will look at the EC Mediation Regulations in a little more detail and discuss how the implementation of the Draft Bill would further benefit parties looking to use ADR and supply possibly supply them with answers to questions they may currently have.

In 2002, the European Union proposed a directive dealing with alternative dispute resolution, in particular mediation.  This Directive, known as the EC Directive on Mediation[6], was adopted in 2008 and it gave each member state until May 21, 2011 to “transpose the measure into national law”[7]. The aim of this Directive is to “facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation”[8]  Order 56A of the Rules of the Superior Courts adopted in November 2010[9] meets the requirements of Article 5 of the Directive. This Order deals with the Recourse of Mediation, which allows the courts to refer parties to mediation and to require them to attend information sessions concerning mediation. The Order was the first legislative step the State made to promote alternative dispute resolution, however it is not mandatory and as Brian Hutchinson notes in his Article[10] “success rates of 60 percent and higher are routinely reported in jurisdictions overseas which have made it a requirement”. This raises the question of whether or not Ireland should, like Italy, make mediation a mandatory step in certain cases. There could however be pros and cons to making the process mandatory, at the moment Ireland is in the early stages of adopting the mediation process so maybe it would be too soon to follow in Italy’s footsteps by making it a requirement just yet.

Order 56A met the requirement of Article 5 of the EC Directive however, Ireland properly transposed the measure on May 18, 2011 when the European Communities (Mediation) Regulations, 2011[11] became operative, this hence gave effect to the Directive in Ireland. As Gearóid Carey explains in his article, these 2011 Regulations represent ‘another step towards the formalisation of mediation as a recognised dispute resolution method in Ireland’[12]. The EC Directive focuses on cross-border disputes of a civil or commercial nature[13] but also allows for Member States to apply the provisions to a country’s “internal Mediation processes”[14]. Ireland has so far not applied the provisions to domestic disputes but the2011 Regulations do support mediation by making provisions which allow the courts to assist parties in cross-border disputes to reach a resolution through mediation. In achieving such resolutions the provisions of the Regulations provide for confidentiality[15] , the enforcement of decisions[16] and limitation periods[17] on a statutory footing. Although these apply only to cross-border cases, recital 8 of the Regulations states that “nothing should prevent Member States from applying such provisions also to internal mediation processes”. Ireland has not yet applied such provisions but The Law Reform Commission Report on Alternative Dispute Resolution: Mediation and Conciliation(hereafter ‘The Report’), which includes a draft ‘Mediation and Conciliation’ Bill could be the way forward. We will now examine this Report and subsequent Bill and see if it leads to more questions than answers in the States attempt to promote alternative dispute resolution.

The Law Reform Commission’s Report flowed from the Consultation Paper on Alternative Dispute Resolution published in 2008[18]. The Report recommends the integration of Alternative Dispute Resolution into litigation practice and the appending Bill contains a variety of provisions which are designed to protect the parties and the instances where Mediation or conciliation are used.  The Bill itself attempts to clear up any ambiguity in distinguishing Mediation from Conciliation. Section 4(1) of the Bill defines “Mediation” as:

…a facilitative and confidential structured process in which the parties attempt by themselves, on a voluntary basis, to reach a mutually acceptable agreement to resolve their dispute with the assistance of an independent third party, called a mediator.[19]

This is a more interest based dispute resolution process as it examines the rights and interests of the parties in its attempt to find a mutually acceptable solution. “Conciliation” on the other hand is defined in section 4(2) of the Bill as:

…a facilitative and confidential structured process in which an independent third party, called a conciliator, actively assists the parties in their attempt to reach, on a voluntary basis, a mutually acceptable agreement to resolve their dispute.[20]

This definition of “Conciliation” in my opinion does not clarify the role of the Conciliator. In the main body of the report there is a recommendation that when a provision for conciliation is made it should be defined as ‘an advisory and confidential structured process’[21] The Bill’s definition fails to highlight the all important “advisory” factor of conciliation. The LRC make it clear that the Conciliator is there to give recommendations and settlement proposals. In comparison to Mediation, Conciliation is more Rights orientated and doesn’t concentrate on finding a solution that’s fair to both parties but more one that is fair to the legally right party.

In the Report, great emphasis is put on the importance of having understandable and distinguishable definitions for the different types of ADR processes.  The Commission explains through a quote from the Australian National Alternative Dispute Resolution Advisory Council why this is so:

The inconsistent use of both ADR terminology and principles potentially affects consumers, referrers, evaluators, researchers, policy makers, courts and tribunals, all of whom need consistent and accurate information on ADR. As a result, it is likely that many disputes that could effectively be resolved through ADR are litigated in the courts and tribunals[22].

What is strange to see is that the report itself puts a lot of effort into explaining why it is of utter importance to have clear definitions of both ADR processes but the Draft Bill fails to articulate same. The lack of such clarity in the Bill could deter parties in a dispute from using ADR to find a solution. Arran Dowling-Hussey explains in his article on Conciliation, how he believes that if the definition of Conciliation becomes more settled than it is at present then ‘there will be further focus given to the area and the degree to which the process is an adjunct to litigation will increase’[23] Unfortunately though, if the present Draft Bill is enacted as is, it is questionable if the current definition of Conciliation is clear enough to bring it “out of the shadows”.

Their demand for clear definitions is further confused by section 8(2) of the Bill which allows for parties, at any time during the mediation process to change to conciliation if they so desire. This provision further narrows the blurred line between Conciliation and Mediation. If such broad provisions are adopted, they will create even more questions and give fewer answers for people who are considering using ADR.

In considering whether the Draft Bill raises anymore questions or in fact gives answers, we will look briefly at some of the other provisions and compare them to the situation as it is at present. In the main body of the report the Commission places a lot of emphasis on giving the courts the power to stop or “stay” court proceedings if the parties include a mediation or conciliation clause in a contract. Section 13(2) of the Draft Bill sets out the role of the courts in staying court proceedings:

If any party to a mediation or conciliation clause commences any proceedings in any court against any other party to such clause in respect of any matter agreed to be referred to mediation or conciliation, any party to the proceedings may at any time after proceedings have been commenced apply to the court to stay the proceedings.

This provision in the Draft Bill, in my opinion, answers questions rather than raising them. I agree with Brian Hutchinson when he notes how interesting it is that ‘much of what is proposed in the Bill is happening on the ground in any event’[24] What he is mainly referring to here is the High Court case of Health Service Executive v Keogh[25] Even though there is no legislation to allow for such a stay at present, the court felt it had the inherent power to adjourn the proceedings. In my opinion by creating the provisions regarding stays, the Commission are clarifying the rather conspicuous present position by explaining when and where a stay is allowed.

The situation regarding ADR at present in Ireland is, as shown earlier in this essay, mainly regulated by the EC Mediation Regulations and Court Rules. Together these provide in short and simple terms four clear and easy to understand provisions. To recap, these include, in both domestic and cross-border disputes, the courts power to adjourn proceedings and in cross- border disputes only they provide for confidentiality in the mediation process, the enforcement of any agreement reached in mediation and finally the suspension of limitation and prescription periods for mediation. It is wrong however to think that these are the only legislation governing ADR in Ireland, for example in domestic disputes the Children Act 1997 requires solicitors to discuss mediation in custody and access disputes[26] and outside of civil proceedings the Medical Practitioners Act 2007 allows for the resolution of certain complaints by mediation[27].

In general, it is the EC 2011 Regulations that are the main governing body with regard to mediation at present. The provisions of the Regulations are short, easy to understand and straightforward but there are disadvantages to this. Firstly, the regulations only apply to cross-border disputes. Mediation and Conciliation processes are becoming more popular as forms of dispute resolution in Ireland but without clear legislation for internal Mediation processes people can be shy about using such methods. The Draft Bill, if enacted not only makes provisions for cross-border disputes but also for domestic mediations, conciliations, medical and family law disputes. This would be a huge step forward for ADR in Ireland as it would incorporate many of the current “loose” mediation legislation, eg. the provision in the Medical Practitioners Act, into one tangible, easily accessible act.

A second disadvantage to the EC Regulations is that they do not acknowledge conciliation. In the current economic climate, parties are looking for alternative more pocket friendly ways of resolving disputes. Sarah Conway explains how there is now a “renewed interest in alternative methods of dispute resolution and in mediation in particular”. Mediation is a cost effective dispute resolution and usually both parties end up finding a solution that is agreeable to them both using this process. However, solutions like these can be hard to come by and in that way a more advisory, Rights orientated role is needed by the adjudicator of the process. The Draft Bill if enacted would be one of the first to acknowledge conciliation in as high a regard as mediation. I think this will be welcomed on the ADR front as it will provide parties with another clear and strong form of resolution. However, in saying that, as outlined earlier in this essay, the provision defining Conciliation is hazy at present and will need to be amended to give full and effective force to the true process of Conciliation.

In conclusion I have to say I disagree with the statement that “The Law Reform Commission’s Draft “Mediation and Conciliation Bill” will lead to more questions than answers. Brian Hutchinson asks in his article on the Mediation Directive if ‘the Bill could, or should, be adopted in its current form or would it receive substantial amendment?’[28] In my opinion the Draft Bill does need to be amended before it is enacted but not to a substantial degree. I feel the weakest, most query prone part of the Bill is the section dealing with the definition of Conciliation. It appears from the Report that the Commission itself seem to be headstrong in defining the process of conciliation as an advisory one however, they have somehow failed to get that point across in the Bill. I feel that if this was to be enacted without making that simple amendment it would in essence jeopardise the whole act as from the beginning courts and parties alike would not have a clear idea of what the distinguishing factor is between mediation and conciliation. Besides this hiccup however, I find the Draft Bill to promote and clarify mediation and conciliation rather than creating more questions about the two processes. The Draft Bill builds on the EC Mediation Regulations and establishes provisions for the use of mediation and conciliation for internal domestic disputes. It is for these reasons that I feel the Draft Bill will lead to some questions but will not lead to more questions than answers. In my opinion, with few amendments the Bill does reach the Commissions objectives by ‘providing a legislative framework for Mediation and Conciliation”.[29]

Bibliography:

Books:

-          Berger, K., Private Dispute Settlement: Negotiation, Mediation, Arbitration (Kluwer Law International, 2006)

-          Byrne, R. and McCutcheon, J., The Irish Legal System (5^th ed.) (Tottel Publishing, 2008)

Articles:

-          Aaron Dowling Hussey, ‘The Mediation Directive: Was the Wait Worth it?’ (2008) 26 ILT 235

-          Brian Hutchinson, ‘Transposition of the Mediation Directive by May 21, 2011’ (2011) 18(4) CLP 70

-          Gearóid Carey, ‘Mediation Sans Frontiers’ (2011) 18(7) CLP 157

-          Arran Dowling-Hussey, ‘Conciliation: Coming out of the shadows?’ (2009) 16(3) CLP 48

-          Brian Hutchinson, ‘Civil Procedure: Change is inevitable, and sometimes for the good’ (2010) 17(10) CLP 190

-          Barry Mansfield, ‘The cost implication for refusing to avail of ADR in civil litigation in the Superior Courts’ (2011) 18(1) CLP 8

-          Sarah Conway, ‘Recent Developments in Irish commercial Mediation – PartII’ (2009) 27 ILT 58

-          Brian Hutchinson, ‘No such thing as free conflict resolution’ (2008) 15(8) CLP 182

-          Ercus Stewart, ‘Resolution of Employment Disputes’ (2004) 1(5) IELJ 136

Legislation:

-          Directive 2008/52/EC of May 21, 2008,  on certain aspects of mediation in civil and commercial matters (OJ L136/3)

-          Rules of the Superior Courts(Mediation and Conciliation) 2010, SI 2010/502

-          European Communities (Mediation) Regulations,2011, S.I. 2011/209

-          Children Act 1997

-          Medical Practitioners Act 2007

-          Circuit Court Rules (Case Progression (General) 2009

Law Commission:

-          Law Reform Commission, ‘Alternative Dispute Resolution: Mediation and Conciliation’ (LRC 98-2010)

-          Law Reform Commission, Consultation Paper on Alternative Dispute Resolution (LRC CP50, 2008)

Cases:

-          Health Service Executive v Keogh, trading as Keogh software [2009] IEHC 419

The average time to complete a divorce through mediation is 110 days, compared with 435 days for court cases. Issues covered in divorce/separation mediation can include but are not limited to; distribution of property, child custody and parenting time, child support/maintenance, retirement, and taxes. The role of the mediator in this process mainly involves:

• Helping couples deal with difficult emotional issues that would otherwise prevent them from reaching an agreement
• Creating and maintaining an atmosphere of co-operation and responsibility
• Creating and maintaining an environment where neither party dominates but in which both parties attempt to come to an agreement willingly and in good faith
• Helping couples reach an agreement that each party believes to be fair, equitable and feasible

The mediation process should, as always, be confidential, private and flexible. The mediator must conduct themselves in a neutral manner throughout and relies on the presence of both parties in order to work towards a clear agreement.

Changes in legislature in the UK have been made in recent years with the aim of encouraging separating couples to settle their differences out of court and understand the impact of conflict on children. Separating couples receiving legal aid are now required to attend a ‘mediation information and assessment meeting’, costing between £40 and £70, before going to court and the average cost of a successful mediation is $535, compared with the average cost of a case in court which is £2,823. The change has led to 6 out of 10 legally aided divorce cases being settled by agreement. £10M has been provided to fund a network of independent mediators. The new law applies to couples whether they are married or unmarried, and whether disputes are over the division of assets or access to children. Only in certain circumstances, such as in cases involving domestic abuse, are exceptions made.

Justice Minister Jonathan Djanogly has insisted that mediation is a quicker, cheaper and more amicable alternative for separating couples.
“Our proposals aim to radically reform the system and encourage people to take advantage of the most appropriate sources of help, advice or routes to resolution – which will not always involve the expense of lawyers or courts,”
As well as due to its saving of millions in court costs in the UK, it has been argued by officials that mediation is a favourable alternative to litigation as it can protect children from resident parents eliminating relationships between children and non-resident parents. For the first time, courts were told that children have the right to a full and continuing relationship with both parents.

With the combined growth of the use of mediation overall and in the important area of divorce and separation, future developments and opportunities for mediators are imminent.

Fiona Feeney

Intern at CPD Seminars, Dublin

Dearbhaile Flynn

Ardbear

Clifden

Co. Galway

Introduction and Definition

Collaborative Lawyering (CL) is the term used to describe a revolutionary practice that has developed in the field of Alternative Dispute Resolution[1]. Providing an alternative to traditional litigation, it is premised on the concept of coupling the problem solving and interest- based negotiation principles of mediation with an additional element – a commitment by the parties and their attorneys to settlement[2]. 

It is the intention of this paper to provide a critical analysis of the emergence of CL as well as an examination of the individual elements that comprise its practice, so that its worth and potential might be established. That is, to justify that CL is indeed a “way forward” and not a “waste of time”. However, it is submitted that in order for CL to move forward it must overcome its ethical and procedural shortcomings and so these issues will also be examined and potential solutions proposed[3]. 

The CL Model 

The emotional and psychological trauma for litigants involved in family law disputes is well documented[4]. Daicoff states that the “traditional system of family law litigation is often disastrous emotionally and financially for families and divorcing couples.[5]” Strickland outlines that nowhere can the negative effects of litigation and the lack of confidence in legal representation be seen more clearly, than in the area of family disputes [6]. Tessler outlines that the court is an inappropriate place to resolve issues that arise from family dissolution as judges and lawyers on the whole, do not possess the requisite emotional objectivity and skills[7].

Legal practitioners are far from immune to the effects of the harrowing ordeal that is family law litigation[8]_. The stresses of traditional representation have been found to be “nearly catastrophic for the mental and physical health of lawyers[9].”

The dissatisfaction felt by both parties and practitioners involved in family law is evidenced by “changing dynamics in the litigation process[10]” – 90% of all lawsuits now settle without ever going to trial[11]. However, despite the obvious and substantial financial and emotional savings that can be made when a couple can resolve a divorce without resort to courtroom adjudication[12], most of these cases settle, after much expense and time “on the courthouse steps, between disillusioned, embittered opponents[13].” 

CL comes into the breach and takes the advantages of settlement “to the next level[14]”. Webb describes his vision as “removing the trial aspects and creating a coterie of lawyers who would agree to take cases only for settlement[15]”. Thus “interest based negotiation” is employed as the means for resolving family law disputes and focus is placed on the issues of both parties involved in order to produce solutions addressing the needs of all[16].

CL removes the “game playing” and posturing (of litigation) and encourages the parties to disclose their needs to each other in order to generate an honest, all encompassing settlement[17]. As per Vickers J, “In an adversarial system claims are dealt with to produce a win/lose result. Interest negotiations, designed to take opposing interests into account, have the potential to achieve a win/win result. [18]”

The client’s role in CL is fundamental to its success as it is the direct participation of the client and their autonomy in creating solutions and making decisions (with support from their legal counsel) that makes the process less traumatic and more productive than litigation[19]. Hilbert voices a concern that the client may not be in the right frame of mind emotionally nor possess sufficient experience and familiarity with the legal system to play such an integral role[20]. However, Lande outlines that having the support and guidance of legal counsel, as well as the ability and facility to generate solutions without adversarial pressure, allows clients to overcome their vulnerabilities and insecurities[21]

CL has been heralded by family lawyers, judges and clients as a “method of meeting the needs of those involved in the divorce process with the added benefit of being less destructive to parties than traditional divorce proceedings[22].” It is unclear whether the practice is in fact a faster or more cost effective alternative to traditional litigation[23]. However the merits of CL can be seen by the rapid and dramatic acceleration in its practice[24]. It is now routinely practiced throughout the United States[25] and is also practiced Australia, Canada, and throughout Europe[26].

Overview of the Individual Elements of the CL Process

Participation Agreement-

The Participation Agreement gives CL “its’ spine[27]”. It is the Participation Agreement that distinguishes CL from other forms of alternative dispute resolution by ensuring that the participants and their attorneys commit themselves fully to “good faith bargaining, voluntary full disclosures, interest-based bargaining (and the inclusion) of relational and long-term interests in the identification of clients’ goals and strategies[28]”.

Commitment to Disqualification-

One of the most important aspects of the Participation Agreement is a resolution that should the parties find themselves unable to reach a settlement, litigation proceedings can only be entered into with new legal representation[29]. That is to say that CL Lawyers are disqualified from representing their clients in litigation following failure of the CL process. Lawrence observes that by contracting away their right to continue the dispute into litigation, both attorneys and clients increase the stakes in the negation process and make a real commitment to settlement[30].

Four Way Meetings-

Once the Participation Agreement has been signed the parties and their attorneys proceed to “Four Way Meetings”. Four way meetings, in their open transparent and face to face manner, facilitate the parties’ commitment to being respectful, providing full disclosure of relevant information and addressing each other’s legitimate needs[31]. Tessler opines that the four way meetings give rise to an enhanced creative process that ultimately results in better settlement agreements[32].

 Macfarlane notes that the set-up of the four way meeting ensures that the client is always present to hear and directly respond to the advocacy put forward by their attorney on their behalf[33]. Thus the 4 way meeting perpetuates an interesting dynamic, with the counselling (that usually takes place in private between a client and his attorney) and advocacy (usually manifested publically but as a manifestation of decisions made in private) roles played by the lawyer now interwoven into one role with no physical distinction between the two[34].

The parties continue the four way meetings until a satisfactory settlement is reached[35] or return to litigation with new counsel.

Procedural and Ethical Concerns-

Central to the process of CL is a movement away from the traditional position of the lawyer as “a knight in shining armour whose courtroom lance strikes down all obstacles[36]” to one where the lawyer is part of a “pit crew[37]”.The win-lose dynamic of the traditional adversarial model is replaced by a team approach centred on problem solving[38]. Critics differ as to whether this difference in approach constitutes a complete paradigm change[39] in the profession or merely a natural evolution, the product of the convergence of litigation and consensus building cultures[40].

Whether in fact the new approach to lawyering has emerged as a result of a paradigm shift or natural evolution is beyond the scope of this paper. What is of paramount importance for the purpose of this paper, in assessing the overall value and worth of CL, is a discussion on the many ethical and procedural issues that have arisen as a result of this new approach.

Interest-based negotiation does not come naturally to lawyers[41]. Hilbert notes that engaging in problem solving approaches, whilst at the same time zealously representing a client is no mean feat[42] and lawyers have displayed a certain reluctance to adapt to the change in parameters fundamental to CL[43]. Menkel-Meadow outlines that the concept of focussing on underlying interests and “forging a joint agreement that would meet the needs of both parties was (and is) countercultural to the way most parties approach negotiations[44].” Indeed, it is the “attorney personality” itself that may pose the biggest obstacle to effective collaborative practice[45].

Essentially what must be ascertained is whether a lawyer is capable of acting as both a zealous advocate and as an interest based negotiator for his client. And if he is so capable, what are the ethical consequences of this dual role.  

Mnookin describes the benefits of the collaborative lawyering arrangement as creating “powerful incentives to search for a reasonable solution without litigation. Each lawyer knows that he cannot profit from the use of litigation[46].” However, as an advocate it is the duty of a lawyer to zealously represent the interests of his client, and so it is necessary to question whether such zealous advocacy is possible where the lawyer has locked themselves into a position as “settlement counsel[47]”.

It would appear that such a stance is indeed possible for two main reasons. Firstly the client, by signing the Participation Agreement, has consented to the “attorney’s singular pursuit of settlement without resort to litigation or the threat of litigation[48]”. Thus the client is aware of the limitations of the representation and so their lawyers’ actions are essentially advocating for them. Secondly, several proponents of CL suggest that “zealous advocacy” must be determined on a wider, more all encompassing scale. MacFarlane notes that “few lawyers would understand their advocacy responsibilities as narrowly” as what is contended in the traditional adversarial model[49]. Zealous advocacy could be fulfilled by the fact that the best interests of the client are served by a collaborative, as opposed to adversarial model – taking into account the overall interests of the client in the circumstances as opposed to litigating purely for financial or proprietary gain[50]. As Strickland notes, “zealous advocacy has never meant mindlessly pursuing every possible objective or trying to get the biggest piece of the pie every time[51].”

However, it is this “piece of the pie” that embodies one of the main criticisms of CL – it may not always be feasible for a CL lawyer to advocate zealously within the terms of the Participation Agreement as the CL lawyer must consider interests other than those of his client[52]. MacFarlane notes that the CL lawyer must consider the needs of the whole family in problem solving to reach a suitable settlement and that there is therefore a danger that the over eager (often inexperienced) CL Lawyer, may resign from the advocacy responsibilities they owe to their own client[53]. As Annable points out, “sooner or later the pie must be cut and the value claimed” and there is a danger that a client may have to forego a particularly viable “piece of the pie” in the hopes of reaching a settlement[54].

In such a situation, notwithstanding the client’s informed consent to the process, it cannot be considered just or ethical that a client feels compelled to take a bad settlement for fear of incurring more expense and time. However Schwab’s research, however, seemingly disproves the claim that the disqualification provision applies inappropriate pressure on clients to settle[55]. Similarly, Macfarlane’s research found that “positional bargaining” in CL “simply does not work”[56]. As a result, settlement figures may in fact be higher as the goal is to find an amicable settlement as quickly as possible and not to win at trial[57].

The disqualification commitment also raises several ethical and procedural issues. Firstly, a client and their lawyer could enter into the collaborative process with a “pre-design for failure[58]”solely to remove the attorney on the other side. However, it is necessary to note that no system is perfect and completely immune from abuse – there is no engagement in any type of legal process that is “risk free[59]”. Furthermore, such an ulterior motive for engagement in CL is unlikely as the both parties too would “bear the burden of losing counsel[60]”.

The disqualification commitment also raises questions regarding confidentiality. Fundamental to the CL process is a commitment to “provide good faith responses to any good faith questions and requests[61]”. However, the extent of the “duty of candour” is unspecified[62]. Lawrence states that it is unclear whether the parties have a duty to disclose information that has not been requested by the other side nor is it clear whether CL lawyers are obliged to disclose all relevant information independent of their obligations to their client[63]. It is submitted that in order for the process to be fully collaborative full disclosure is desirable (if not essential), yet there is an underlying danger that information disclosed during collaboration[64] could be obtained through formal discovery procedures should the process fail[65].

The duty to disclose may also have an effect on a lawyer’s ability to maintain client confidentiality[66]. Should the process fail, the withdrawing attorney has a duty to aid their client in finding new counsel and to inform the successor counsel of the facts and circumstances of the case[67]. In spite of this, the lawyer may be restricted by the confidentiality clause as to the information that they can provide to new counsel[68]. This gives rise to a significant dilemma as failure to provide information to subsequent counsel may significantly prejudice a client’s case[69]. However, Schwab’s research indicates that the majority of lawyers place their duties of zealous advocacy and client confidentiality in paramount position and allow the two duties to mutually inform each other, delineating from the CL principles where necessary in order to uphold such duties to their clients[70].

Application of CL

The application of CL in various circumstances is an issue worthy of discussion[71]. MacFarlane notes that her research found that only “A small number of CL lawyers express concerns about vulnerable clients who may not do well in the process because of fear or intimidation[72]”. Furthermore she highlights that there as yet no systematic screening for domestic violence[73].

Van Steegh[74] notes that the lack of screening for domestic violence is of particular concern given that “CL is a private process that functions almost entirely outside the purview of the court system, and the parties consequently have little or no contact with judges or court system personnel who might otherwise regulate the divorce process, screen for intimate partner violence, or make appropriate referrals”. Thus, it is imperative that CL Lawyers be equipped with skills to detect inter partner violence –as an unequal bargaining position renders the collaborative process inequitable and misrepresentative[75].  However, Van Steegh states that a history of intimate partner violence does not necessarily exclude CL entirely[76].

Whilst the majority of CL cases concern family law its use has been reported in other areas[77] due to its ability to solve disputes whilst maintaining an on-going and respectful relationship between the parties during and after the process, and to provide settlement arrangements unique to the needs of the parties[78].

One of the most interesting areas where CL has evolved beyond the realm of Family Law is its employment to achieve social change[79]. The concept refers to no longer viewing lawyering as a “unidirectional ‘professional service’ but rather to see it as a collaborative communicative practice[80]”. CL Lawyers can be collaborators in social justice projects, giving those in poorer socio economic groups the tools to reach their self-defined aspirations, whilst linking the groups with wider spheres of justice work[81]. Piomelli endorses the use of collaborative lawyering to “urge a radical reorientation of the work of lawyers and their lower-income clients” as its “client-centred” ethos compels lawyers to “involve clients directly in individual and collective efforts to speak out and act against their own oppression”[82]. Killelea proposes the application of CL to work in conjunction with the medical sphere, particularly in the area of HIV/Aids services, so that the medical and legal communities speak with, as opposed to for, the poorer groups in society in order to empower and effect real social change[83].

Future Application/Recommendations

Many of the criticisms CL pertain to a lack of uniformity of practice in the area[84] – although collaborative practices share common traits there are varying “models of practice[85]”. Hilbert outlines that CL, with interest best negotiation at its core, can “fulfil its promise” as best practice – but it needs a systematic structure in order to do so[86]. Strickland opines that “statutes would increase the legitimacy of the option (of CL) for divorcing couples and give parties and their attorney’s guidelines to follow[87]”.

Strickland also notes that “statutes will hopefully further unify CL as a method of dispute resolution, creating the desire for more training and a broader knowledge base, hopefully remedying the uncertainty associated with the skills CL lawyers possess[88]”. Indeed, it is submitted that education and skills is also an area of the utmost importance if CL is to reach its potential and continue to evolve as a viable and advantageous alternative to litigation. Macfarlane highlights the need for the continuous development of the “new lawyer” (i.e. the CL lawyer) through the continuous advancement and improvement of negotiation skills, communication skills and the evolution of a new participatory approach to client relationships[89]. She outlines that legal educators and pr­acticing lawyers with a good will to reconceptualise and restructure the traditional litigious stand points have essential roles to play in this process[90].

Lawrence proposes that the CL lawyer falls in a “unique ethical position” somewhere between the ethical posture of a traditional advocate and a neutral[91]. Whether the position is entirely novel or is merely an extension of the role of advocate[92] it is submitted that ethical guidance is needed in order for the CL to evolve effectively. 

Conclusion

CL is a simple yet profound concept[93] that has shown great potential to alleviate the pressures and distress associated with traditional litigation. Yet CL is not without fault. The ethical and procedural concerns outlined in this paper with regard to its use must be addressed before it can move forward. However, that is exactly what ought to occur – CL must move forward, continue to evolve, grow and develop. It is in no way a “waste of time”, and those parties who consider it to be so are unsuited to its application. Whilst not suitable for everyone,[94] it is a feasible and potentially incredibly rewarding process that should be, more prevalently, available to all in the future[95].

Bibliography

• Annable Z, ‘Beyond the Thunderdome – The Search for a New Paradigm of Modern Dispute Resolution : The Advent of Collaborative Lawyering and Its Conformity with the Model Rules of Professional Conduct’ (2004-2005) 29 J Legal Prof 157.
• Barbara Smyth, ‘Collaborative Law’ (15 July, 2009 ) <http://www.acp.ie/index.php?option=com_content&view=article&id=131&Itemid=114> accessed 30 September 2011.
• Burger W, ‘Isn’t There A Better Way?’ (1982) 68 A B A J 274.
• Burrows G, How to Get the Most out of Your Divorce Financially (Dundorn Press 2002).
• Daicoff S, ‘Collaborative Law: A New Tool for the Lawyers Toolkit’ (2009) 10 U Fla J L & Pub Pol’y 113.
•  Mosten F and Lande J, ‘The Uniform Collaborative Law Act’s

Contribution To Informed Client Decision Making In Choosing A Dispute Resolution Process’ (2009) 38 Hofstra Law Review 611.

• Fairman C, ‘Ethics and Collaborative Lawyering: Why Put Old Hats on New Heads’ (2003) 18:2 Ohio State Journal on Dispute Resolution 505.
• Gutterman S, Collaborative Law : A New Model for Dispute Resolution (Bradford Publishing, 2004).
• H Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale L J 950.
• Hilbert J, ‘Collaborative Law: A Process for Interest Based Negotiation’ (2010) 38 Hofstra Law Rev 1083.
• Irish Law Reform Commission, Consultation Paper­ – Alternative Dispute Resolution (LRC CP50-2008)
• Killelea A, ‘Collaborative Lawyering Meets Collaborative Doctoring: How a Multidisciplinary Partnership for HIV/AIDS Services Can Improve Outcomes for the Marginalized Sick’(2009)16 Geo J on Poverty L & Pol’y 413.
• Kovach K, ‘New Wine Requires New Wineskins : Transforming Lawyer Ethics for Effective Representation in a Non-Adversarial Approach to Problem Solving, Mediation’(2001) 28 Fordham Urb L J 289.
• Lande J, ‘Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering’ (2003), 64 Ohio St L J 1362.
• Lawrence J, ‘Collaborative Lawyering: A New Development in Conflict Resolution’ (2001-2002) 17 Ohio St J Disp Resol, 431.
• Macfarlane J, ‘Experiences of Collaborative Law: Preliminary Results from the Collaborative Lawyering Research Project’ (2004) J Disp Resol 179.
• Macfarlane J, The New Lawyer: How Settlement is Transforming the Practice of Law (UBC Press, 2008)
• Menkel-Meadow C, ‘Why Hasn’t the World Gotten to Yes ? An Appreciation and Some Reflections’ (2006), 22 Negot J 485.
• Mnookin R, Beyond Winning (Harvard University Press, 2000)
• Murphy R, ‘Is the Turn Toward Family Law a Turn Away from Justice?’ (2004) 42 Fam Ct Rev 460.
• Pearlstein A, ‘Meet the New Lawyer : How Settlement is Transforming the Practice of Law’ (2008) 10:1 Cardozo J of Conflict Resolution 1.
• Piomelli A, ‘Appreciating Collaborative Lawyering’ (1999-200) 6 Clinical L Rev 427.
• Rack R, ‘Settle or Withdraw: Collaborative Lawyering Provides Incentive to Avoid Costly Litigation’ (1998) Disp Resl Mag 9.
• Schwab W, ‘Collaborative Law: A Closer Look at an Emerging Practice’ (2004) 4 Pepp Disp Resol L J 351.
• Shneyner T, ‘The Organised Bar And the Collaborative Law Movement: A Study in Professional Change’ (2008) 50 Arz L Rev 289. 
• Strickland E, ‘Putting ‘’Counsellor’’ Back in the Lawyer’s Job Description: Why More States Should Adopt Collaborative Law Statutes’ (2005-2006) 84 NCL Rev 979.
• Tessler P ‘Collaborative Law: What it is and Why Lawyers Need to know About It’ (1999) 13 Am  J of Fam L 215.
• Tessler P,  Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation (American Bar Association, 2001)
• Tessler P, ‘Collaborative Family Law’ (2004) 4 Pepp Disp Resol 317.
• Tsilhqot’in Nation v British Columbia [2008] 1 C.N.L.R.
• Van Steegh N, ‘The Uniform Collaborative Law Act and Intimate Partner Violence: A Road Map for Collaborative (and Non Collaborative) Lawyers’ (2009-2010) 38 Hofstra L Rev 699.
• Webb S, ‘Collaborative Law: A Practitioner’s Perspective on its History and Current Practice’ (2008) 21 J Am Acad Matrimonial Law 155.
• White L, ‘Collaborative Lawyering in the Field? On Mapping the Paths from Rhetoric to Practice’ [Spring 1994] Clinical Law Review 157.

The Bill also proposes removing the requirement for wearing wigs or gowns in court and allowing solicitors to become senior counsel for the first time. 

The Department of Justice says the Bill will give effect to key reforms included in the Programme for National Recovery and agreed with the EU, ECB and IMF.

 “The Legal Services Regulation Bill is intended to bring the legal profession out of the 19th century and into the 21st century and to provide essential information and protection for the consumers of legal services”.

 The most important changes:

 End of the Monopoly in the field of legal-professional education

The Law Society and Bar will have to allow the many other education providers to compete for students. 

• Unification of the two branches of the legal profession

Many people do not know the difference between Solicitors and Barristers. The Unification will simplify the situation for customers, and might serve to categorise lawyers by their area of expertise instead of their role in the legal process. 

• Possibility for solicitors to become Senior Counsel as well as barristers 
• Direct access to barristers for contentious business

Previously you had to incur both solicitors and barristers’ costs to get advice relating to a case. Many young Barristers would benefit from being allowed advice clients directly. 

• Possibility for solicitors and barristers to act jointly as advocates in court and other proceedings. 
• Possibility for clients to nominate who should lead their case in court when members of both legal professions are involved 
• Barrister partnerships, partnerships between barristers and solicitors and multi-disciplinary practices

A solicitor, accountant and a tax expert can join together to offer a one stop shop for small businesses. The danger is that this will restrict access to the best barristers. 

• A separate profession of “conveyancers” 
• Legal costs more transparent

Both solicitors and barristers will now have to provide proper costs information. A detailed Bill of Costs is required which contains specific information. Ongoing information will need to be provided and penalties will be imposed for lawyers who fail to do this. 

• An independent complaints structure 

to deal with complaints about professional misconduct.

Consumers will no longer have to complain directly to the law Society or to the Bar Council to obtain redress. It will be a three step process that involves alternative dispute resolution. 

• A New Legal Services Regulatory Authority

It would be independent body made up of 11 members: two members of the Law Society, two members of the Bar Council, one legal costs accountant, one ministerial appointee and five lay people.

It will report to the Minister for Justice and the relevant committees of the Oireachtas.
It will be empowered to set up sub-committees, including a complaints committee, to which clients may go in the first instance.

The matter can be referred for mediation or other informal resolution.

 If it goes to a hearing of the complaints committee, that can impose a series of minor sanctions.

If the matter is more serious, the regulatory authority will refer it to the Disciplinary Tribunal, which will also be appointed by the Minister for Justice and will have a lay majority. This will have the same power as the High Court to compel witnesses and the production of documents.

The disciplinary tribunal will have at its disposal a range of sanctions similar to those available at the moment to the Solicitors Disciplinary Tribunal, including the referral of the legal practitioner to the High Court for striking off.
The new regulatory authority will also be responsible for drawing up or approving codes of conduct for the two branches of the legal profession, deciding on levels of professional indemnity insurance and supervising entry into the professions.

It will review the provision of professional legal education and prepare a report for the Minister on how this is to be delivered in future, and by whom, ending the monopoly on legal education exercised by the Law Society and the King’s Inns. 

• An Office of the Legal Costs Adjudicator 

It will assume the role of the existing Office of the Taxing-Master which will be conferred with enhanced transparency in its functions. The legal costs regime will be brought out into the open with better public awareness and entitlement to legal costs information.

Welcoming the government’s approval for the Bill, Minister for Justice Alan Shatter said it was a big achievement for both the consumer and legal professions.

According to the Minister, the new Bill provides for greater transparency for legal costs and greater assistance and protection for consumers of legal services. It also provides an entirely independent dispute system to determine allegations of professional misconduct and a new system for legal costs adjudication where legal costs are in dispute.

Restrictive practices inhibiting the delivery of legal services are being removed and structures being put in place which provide for greater competition in providing legal training, as well as reduced costs for that training. 

Reaction 

The Bar Council has criticised the Bill, claiming it will reduce competition and increase legal costs. It said it went far beyond implementing the outstanding recommendations of the Competition Authority, contradicting a number of them and the EU/IMF Memorandum of Understanding with the Irish Government.

The chairman of the Bar Council, Paul O’Higgins SC, said: 

 “An independent legal profession is a cornerstone of democracy, and the Bar Council is determined to protect that principle.”

Expressing his concern about the independence of the regulatory body he also said:

“If the collective Government or an individual Minister has final say over all aspects of the regulatory function and code of conduct this could cause problems for barristers taking such a stance”

The Bar Council has also voiced its opposition to the proposal to introduce multidisciplinary partnerships and the abolition of the independent referral bar. 

“If partnerships are to be introduced, this will dramatically contract the available numbers of barristers and greatly restrict access to justice for those who cannot afford legal representation. At a time when the Legal Aid provisions are being curtailed and the Legal Aid system has a waiting list of up to nine months and 4,500 clients waiting for a first appointment, this will severely impede availability of quality representation for the general public and those who cannot afford representation.” 

John Costello, President of the Law Society, told Minister Shatter that it fully supports a move towards a “much more modern, transparent and predictable system for the assessment of costs in civil litigation”, but is wary of introducing changes to regulation which would result in increased costs for solicitors and fees for clients.” 

The Director General Ken Murphy said the legal profession is not opposed to change and had known an independent legal services authority was coming.

However, he said the Minister for Justice had, without consultation, chosen a model quite fundamentally different to that recommended by the Competition Authority in its 2006 report. 

He said the model, which is “unprecedented in the EU and North America,” raised a number of concerns, and had been rejected after consideration by the authorities in England and Wales due to worries about its impact on the independence of the profession and costs. 

 “The independent oversight model for the legal profession is a matter of concern”, he said. 

Minister Alan Shatter said criticism he would be influencing the regulatory body was “so far from reality to be completely absurd”.

 “It as a very substantial reform package” that would “blow the cobwebs” out of the legal profession.

 Sonia Gabbiano

Sonia Gabbiano is a legal intern with CPD Seminars majoring in mediation and alternate dispute resolution studies in Dublin, Ireland.