“Is this the End of Lawyers?”

Date: June 28th, 2011 | Filed under: Mediation Scholarship Articles

“The New Order 56A, S.I. 502 Rules of the Superior Courts (Mediation and Conciliation) 2010, Is this the End of Lawyers?”

Mary Elizabeth Curtis Winning Participant

Lawyers must refocus on what they were retained to do: serve their clients’ interests. Clients come to lawyers to resolve their problems as rapidly, inexpensively, and reasonably as possible.
Introduction

Ireland, and its legal profession, would appear to be perfectly ripe for the shake-up of its systems. With the International Monetary Fund and the European Union placing enormous pressure on the country to effect a variety of institutional reforms (in particular to the legal system ), with the public distrustful of governing bodies, and with the communal and individual coffers practically empty,

Ireland can no longer afford to rely solely on the complex and inefficient court system that exists at present, and must invest in a mechanism for resolving disputes in a way that bestows more autonomy on the parties involved and one that does not merely depend on finance-driven solutions. This will require creativity; and the world of mediation and conciliation may be the most appropriate medium through which such creativity can flourish. Essentially mediation offers an alternative to the lengthy and costly adversarial methods of dispute resolution used in the court system, and could attempt to cure what ails where litigation has failed by offering a “facilitative and confidential 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” .

Alternative Dispute Resolution in Ireland

In 2010, the European Union (“EU”) commissioned a survey on the cost of not using Alternative Dispute Resolution (“ADR”) methods and published the results in a Survey Data Report which confirmed that litigation used in intra-community commercial disputes was the main form of dispute resolution despite the fact that “[m]ediation, quite simply, saves money and ought to be utilized.” The Data Report continued to note that “[i]n addition to the advantages of ADR at the individual level, the weight of opinion is that broad usage of ADR has a positive impact on the public as a whole. It follows that adoption of ADR should be considered good “public interest” policy at a macro level, in the same way as improvements to public health, transportation, etc. ”

Having regard for its recognised advantages, it is surprising that alternative dispute resolution methods such as mediation and conciliation have taken so long to become integral in the Irish legal system. The introduction of Order 56A is certainly an appropriate inclusion in the Rules of the Superior Court at a time when Ireland is in metamorphosis, but in reality this Order is the result of a culmination of previously introduced provisions which have already tested the inclusion of ADR in the courts and which have produced notable positive outcomes, and an international debate on the benefits of such processes within the legal system and within society as a whole.

As far back as 2004, ADR provisions have been in situ in Irish Law. The Commercial Court Rules were introduced in January 2004 to permit a judge of the Commercial Court to adjourn proceedings for 28 days to allow the parties to engage in mediation, conciliation or arbitration. In the same year, the Civil Liability and Courts Act were introduced to allow a judge in the High Court direct the parties in personal injury actions to attend mediation. Some years later, in 2009, ADR would be formally recommended again – in the form of a Report by An Board Snip Nua which recommended the use of mediation by State bodies pursuing cases against one another in order to pursue a more cost-effective way of saving tax-payers’ money, and which would also work as a “lead by example” recommendation. The years following this Report have seen a more regular flow of legislation published which include provisions to refer disputes to an alternative dispute resolution method, but the legislation which is likely to encourage the most change to the legal system in Ireland is the new Order 56A of the Rules of the Superior Courts (Mediation & Conciliation) 2010. Essentially the new Order provides that the Court can refer a dispute to mediation and any refusal or failure to participate in the ADR process shall be taken into consideration when awarding costs.

Why include a cooperative process in an adversarial system?

In March of this year, Chief Justice John Murray spoke about the benefits of mediation at the Dublin Solicitors’ Bar Association, during which he opined that mediation ‘is in a sense an antidote to a too casual recourse to litigation not only as a first but as the only option’ . There are a number of features particular to the mediation process which set it apart from litigation, and which could be of great benefit to conflict resolution in Ireland, such as the cost and time efficiency benefits, the confidentially benefits as well as the self-determination and flexibility benefits of mediation – all of which will starkly cast a fresh perspective on the cumbersome nature of litigation.

Cost and Time Efficiency

A regular complaint worldwide regarding the court system is that it is overwhelmed by its caseload , which means that access to justice costs parties a lot of time and money, especially when considering discovery, witness statements, appeals, etc. The potential of mediation offering a solution to this problem could be very persuasive to parties wishing to resolve their disputes without spending innumerable years and exorbitant amounts of money doing so. An example of where mediation can be more efficient than litigation is the case involving the Dubliners v EMI where a long-running dispute was resolved in just three days of mediation.

Confidentiality

The confidential nature of mediation is also beneficial because “[n]ot only do participants require protection against personal embarrassment from potential disclosure to third parties or the public; they also require assurances that mediation communications will not disadvantage them in future court proceedings .” Since “justice is done” in the public arena (except where proceedings are in camera), the media and public will be present to witness the trial. This means that the privacy of the parties is defenceless against national, or even international, exposure. On the other hand, because mediation upholds the privilege of confidentiality, the parties and the mediator can sign a confidentiality agreement declaring that all disclosures made and concessions given during the mediation process are kept completely confidential to those involved. Such procedure allows the resolution process to progress without the added stress of the public eye so that upon conclusion of the mediation, the parties can leave with their privacy and dignity intact.

Flexibility and Self-Determination

The flexibility of mediation is essential to the self-determination of the dispute which empowers parties to negotiate a solution that meets everyone’s needs. Essentially mediation is an interest-based approach which encourages the parties to articulate directly, or through the mediator, their grievances and demands, while at the same time being exposed to the situation of the other party. Aside from the financial and time costs incurred, the antagonistic nature of litigation means that the prospect of good relations with the other party at the conclusion of proceedings is negligible. Flexibility within mediation means that parties can look beyond purely monetary gain to solutions more focused on individual interests, such as the satisfaction of a contractual obligation, the continuation of a contract, or perhaps an explanation for a wrong done, or an apology, for instance.

Mandatory Mediation

Order 56A provides that the Court, on the application of any of the parties or of its own motion, may, when it considers it appropriate and having regard to all the circumstances of the case, order that proceedings be adjourned to allow the dispute be referred to an ADR process, namely mediation or conciliation (but coincidentally, not arbitration). It follows that should a party to the dispute refuse or fail to participate in the ADR process, such refusal or failure shall be taken into consideration when awarding costs . This is a significant provision as it means that all case-types are eligible for referral to mediation, and it is the first provision to indicate that mediation will be mandated in this country.

The debate surrounding the use of cost sanctions to promote/mandate mediation has been in existence internationally for some time, and much discussion has been conducted in the American and British courts on this matter. In the US case In re Atlantic Pipe (2001) the First Circuit Court of Appeals concluded that “the district court had inherent power to mandate mediation” . It was in 2002 when a precedent was established in Britain in Dunnett v Railtrack . In this case Justice Lightman set an authority for courts to penalise parties who refused to mediate, even where the party was successful in the litigation. Such decision generated much debate in subsequent cases. Two years later, the issue arose once more in Halsey v Milton Keynes General NHS. This case actually referred to Dunnett in deciding the issue. The issue predominantly was – can the court compel unwilling parties to mediate? The judgment established two important principles: (1) compulsion to use ADR would be an unacceptable constraint on the right of access to the court and a violation of Article 6 of the European Convention on Human Rights; and (2) cost penalties can be imposed by courts on parties that have unreasonably refused to consider some form of ADR. In that vein, since the general rule that the losing party should pay the winning party’s costs, it is up to the losing party to show that the winning party was unreasonable in refusing to mediate . This argument in Halsey that mandating mediation is an “unacceptable obstruction of [the parties’] right of access to the courts” has been criticised by many as being wrong, and such opinion was not followed by Lord Justice Rix in a recent British case, Rolf v de Guerin . It is generally now accepted that referral to mediation does not prevent access to the courts or to justice, as “they can leave voluntarily without adverse consequence and revert to their litigated case at any time.”

Is this the end of lawyers?

Order 56A has been in existence only since 16th November 2010, so it has yet to be tested, and therefore it is yet to be discovered whether this will spell the end for lawyers. It would be safe to say, however, that change is afoot, but in order to see where such change is taking us, we must consider the issues that mandatory mediation will bring. The aim of the Order is to increase the likelihood of the mediation process being used as a primary method of dispute resolution in Ireland, to relieve the burden of the courts and so that there is a genuine alternative to litigation. Due to its benefits, the existence of mediation in the mainstream legal system is encouraging, but it must be acknowledged that there are side-issues to be considered. Firstly, enforcing parties to mediate may be said to be at odds with the voluntary nature of mediation, and as such, some critics believe that using the stick rather than the carrot will be detrimental to the success of mediation , but one could also argue that a potential penalty will provide an incentive to an “unreasonable” party and will perhaps give the court more control on the amount of cases with which it is required to deal.
While there may be a fear abounding in the legal world that if mediation is successful, parties will realise that they can resolve the dispute themselves without expensive lawyers fees, which may eventually mean the end of never-ending lucrative court cases, or alternatively there may be dread amongst the mediation world that the mediation process will merely be used as an evidence-fishing expedition, with no real intent on purposeful engagement. In reality, however, whether the success of Order 56A will cause the downfall of lawyers will largely depend on judicial support, since the discretion lies with the judge to invite the parties to mediate or to accept one party’s application to refer the case to mediation. If the judge refuses to refer the dispute, or if it is not perceived that mediation would have a reasonable chance of success, then the dispute remains within the jurisdiction of the court.
Ultimately, however, the demise of lawyers is dependent on the lawyers themselves. The lawyers will be aware of the current and prospective legislation in the area, and what it might bring. The transposition into domestic law of the Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters was due to occur by May 2011, and the industry eagerly awaits the publication of such legislation, however, until then Order 56A has firmly placed alternative dispute resolution into the court process. Although the title of this piece suggests that the mediators will pilfer all the work from the lawyers and leave them hungry, there is a good argument to suggest that the appropriate professionals to conduct the mediations are the lawyers – those that have expertise in certain areas of industry, who thoroughly know the laws in such areas. In fact, the Law Reform Commission, in their recent Report on ADR, suggested that the lawyers be retrained in mediation so they can provide the service to their clients . The Commission also recommend that lawyers advise their clients to mediate before initiating litigation proceedings, and that there should be sanctions for solicitors who do not provide such advice . Such obligations would imply substantial adjustment for lawyers, however, it must be remembered that in most litigations, a settlement is negotiated outside the courtroom before judgment occurs, and so mediation would offer the same possibility of settlement but at an earlier stage in the process, saving all involved much less expenditure in more ways than one.
Conclusion

The legal profession in Ireland is certain for reform, through its organisation, its services and its methods. With financial and societal circumstances changing in Ireland, we must be prepared to bend with the winds of change. Contemporary Ireland requires a re-focus on the real needs of Irish society. With debt rife, people and businesses are increasingly finding themselves embroiled in disputes relating to commercial matters, civil matters and family matters, and the courts are strained to resolve all such disputes. It is for this reason that the introduction of Order 56A has never been so appropriate. This does beg the question, however – does the existence Order 56A mean the end of lawyers? This writer suspects that, no, this is only the beginning of a new chapter in the history of dispute resolution in Ireland. If the lawyers can embrace it, they could be instrumental in the establishment of a more efficient and, ultimately, a more prosperous Ireland.