Articles

Talk is Cheap – Commercial Mediation in Ireland Today

5 Dec 2011

On 29 November 2011, ICMA, the Irish Commercial Mediation Association launched a short film about mediation of commercial disputes in Ireland entitled ‘Talk is cheap: Commercial Mediation in Ireland’. It was presented by Austin Kenny, Chairman of ICMA at an event hosted by Helen Kilroy of McCann FitzGerald, Solicitors, at which short excerpts of the film were shown and speakers included the Hon. Ms. Justice Fidelma Macken and Patrick Manley, CEO Europe, Zurich General Insurance. DSBA President, Geraldine Kelly attended on behalf of the Association.

The film was made for ICMA by Animo and runs for about 20 minutes. It features a dramatisation of an Irish  commercial dispute mediation and includes extracts of interviews with or commentary by contributors, including the Hon. Mr Justice Peter Kelly of the High Court, John Madden, Commercial Mediator, Karen Erwin, President, Mediators’ Institute of Ireland and Austin Kenny. The film may be viewed or downloaded free of charge from www.icma.ie by subscribing your name and e-mail address.

As a principal sponsor of the production, DSBA is pleased to be associated with this important contribution to the development of commercial mediation in Ireland. We recommend that every solicitor practising in civil litigation or dispute resolution in Ireland should watch the film. We recommend that ideally, it should be viewed as the primary focus of a group CPD seminar of colleagues within your firm, local area or bar association. It may also be convenient to invite a member of the ICMA Council or other expert to view the film with you to give more formality to your seminar, to facilitate a discussion around issues and to answer questions that arise from the viewing.

Most solicitors in Ireland now have some knowledge of or familiarity with the mediation process in civil and commercial disputes, even if not all have yet been directly involved as a representative or adviser of one of the parties in the successful resolution of a commercial dispute through mediation. As suggested by Ms Justice Macken at the launch, any lingering reticence on the part of legal practitioners to the use of mediation for commercial disputes may be attributable to their unfamiliarity with the process or even to their perception that its traditional application is in matrimonial disputes but that in fact it is difficult to imagine any commercial dispute in which it could not be used, except perhaps in the limited number of cases in which a judicial declaration of the law is absolutely required by the parties. Mr Manley, while not speaking for the insurance industry, expressed his view that lack of understanding of the process may be the main reason why it has not been more widely used to date in disputes involving insurance companies here but that he is personally convinced of the value of the process for resolving commercial disputes and believes that his industry has nothing to lose and much to gain by using mediation more often.

For those who are familiar with mediation and have being using it for some time to good effect, you need no persuasion. Mediation for you is just another tool in the bag when it comes to assisting clients to achieve a successful resolution of commercial disputes, which before had always needed litigation or arbitration. If you ask a commercial litigator in a London City firm or indeed in a large Dublin firm whether they recommend litigation or mediation for commercial disputes, they will not understand the question for two reasons. One is because they do not distinguish between litigation and mediation as an end in itself and second, they have been practising in mediation for up to 8-10 years longer than most Irish solicitors. They will say that the priority for them is to provide the best possible service to their clients. If the clients demand early, efficient and cost-effective resolution of commercial disputes, then mediation will be on the agenda for discussion from the outset of the retainer. Whether mediation is ultimately used and the point in the dispute at which it is used will largely depend on the nature of the dispute and the client’s requirements and expectations. A client who does not however receive an early and comprehensive explanation from its legal advisers of the process and how it might be used to achieve resolution at the earliest possible opportunity, will be asking questions of them.

There are signs that the pace of development of commercial mediation in Ireland is increasing. Mediation has been and will continue to be an important part of practice in the Commercial List of the High Court, there is no doubt. The current Minister for Justice and Defence has told the Dáil in October 2011 that a Mediation Bill is at an advanced stage of preparation. It is expected to be published in 2012 and may be based on the draft Bill published by the Law Reform Commission in November 2010.  The recent trend has been for the introduction of more active judicial case management into the rules of court. This is expected to continue and new court rules are likely to continue to feature reference to the mediation process. The Courts Service is working on comprehensive courts consolidation legislation, again following upon the work done by the Law Reform Commission, concluding with its draft Bill published in November 2010, which when enacted is likely to consolidate to the role of ADR processes generally, including mediation, in the civil justice system.

Key questions for solicitors when considering mediation will continue to be 1) the timing of mediation and 2) the choice of mediator. It is never too early to propose mediation but it may be too early to mediate. An offer to mediate should be made at the earliest possible opportunity but the mediation meetings should not proceed until all parties are fully prepared. The mediator may be the best judge of whether a dispute is ready for mediation.

There is a common misconception that mediation only works at a late stage in litigation. It is a misconception because it denies the possibility that parties might wish to pursue mediation rather than litigation strategy from the outset. It is also misconceived because it denies parties two of the most significant advantages of mediation, namely the active leading role of the parties themselves in finding a resolution and of course, the significant saving or avoidance of litigation costs that is achieved through successful mediation.

A solicitor who is considering the appointment of a mediator should, at a minimum be satisfied as to the following:

  1. that the proposed mediator holds a current accreditation by a reputable mediation training body;
  2. that he has current professional indemnity insurance to practice as a mediator;
  3. that he practises in accordance with the EU Code of Ethics for Mediators;
  4. that he has a track-record as a successful mediator, demonstrated by an up-to-date mediation CV, regardless of his professional background and status;
  5. that he will administer the mediation including the completion and execution of a mediation agreement;
  6. that he will quote a fee;
  7. that once appointed, he will devote his complete attention to the mediation in accordance with the terms of the mediation agreement, including being prepared to continue the mediation meetings late into the evening on the mediation day, if so required by the parties.

The selection of a suitable mediator does not guarantee a successful outcome but the appointment of an unsuitable mediator will ensure that a successful outcome through mediation is unlikely, if not impossible.

William Aylmer is a partner at Compton Aylmer, Dublin. He is a DSBA Council member and Chairman of the Practice Management Committee. He was elected to the Council of the Law Society in November 2011.