This article will describe Commercial Mediation practice in Northern Ireland with particular emphasis on the Dispute Resolution Service organised by the Law Society of Northern Ireland. It will consider the nature of the Dispute Resolution Service Mediation Scheme, the training provided to Mediators, the typical format of a commercial mediation and the response from the profession and the courts.
1 Nature of the Dispute Resolution Service Scheme
Where parties to a dispute have agreed to attempt to resolve their differences by mediation (whether by their own initiative or as a result of ‘encouragement by the court’ – see below) contact can be made with a dedicated officer of the Law Society responsible for the Dispute Resolution Service. The Society will request that a simple form be completed detailing the parties to the dispute, their representatives and a brief summary of the nature of the dispute – whether contract law, clinical negligence, right of way or construction. The Society will then contact one of the Mediators on the Dispute Resolution Service panel and enquire whether that Mediator has any conflicts of interest with either of the parties and whether he or she would be free to promptly conduct the mediation. Assuming the Mediator has no conflicts and is available then the Society will contact the parties to confirm that they have no objection to the proposed Mediator and if that is the case then the Society will formally nominate the Mediator. From that point on the Mediator will be responsible for making the arrangements for the mediation and for having the parties enter into the formal Mediation Agreement.
Typically the Mediator will write to the parties explaining the mediation process, summarising the main elements of the Mediation Agreement and requesting the parties to provide the Mediator with a short summary of the dispute as the parties see it. This is designed to assist the Mediator in understanding the essence of the dispute. The Mediator will also contact the parties or their representatives by telephone to check what dates might be available and what location might be most convenient.
The Mediation Agreement provides that the parties will accept that the Mediator is manager of the process and will co-operate with the Mediator. It emphasises that the mediation process is confidential and that any disclosures or concessions made during the mediation process are without prejudice. In addition it emphasises that the Mediator is not liable to the parties and is not compellable to attend as a witness to the proceedings should the mediation not result in a settlement.
2 Training Provided
The Law Society Dispute Resolution Service maintains a panel of persons who have received what the Society calls approved training. Only persons on that panel are eligible for nomination as mediators. In addition to having received approved training the Society understandably favours those who have experience in acting as mediators. To gain experience, the Society encourages the nominated mediator to be willing to be accompanied by a less experienced panel member, thereby enabling experience to be gained by observation and secondary level participation in a real mediation. The shadowing experience can be difficult to arrange involving additional administrative arrangements and more importantly consent of the parties and their representatives. While the Society may recognise training provided by organisations such as CEDR, the ADR Group in England or Core Mediation in Scotland, most of the panel members will have undertaken training locally in Belfast organised on behalf of the Law Society by SLS at Queen’s University.
The training comprises 20 hours training over an 8 week programme and in addition an all day Saturday event which provides extended time to carry out role play mediations. Throughout the course all those attending will have had the opportunity at least once to act as mediator in a role play scenario.
The course comprises lectures on the various stages during mediation from the Mediator’s opening address to the initial joint session, individual private meetings with the parties and the framing of the agreement. In addition the course spends time dealing with some of the ethical issues involved in the mediation process and places mediation in the current legal context by considering some cases and judicial comment.
The role plays are specifically written for the course and are observed by the principal trainers delivering the mediation training who provide feedback to the Mediator undertaking the role play mediation. After individual feedback during the role play there is then an opportunity for discussion in the group where the experiences of both parties and mediators in the role play can be compared and lessons learned and shared.
3 Format of a Commercial Mediation
It is, of course, the case that each mediation will have its own pace and rhythm and each mediator will have his or her own style, however the typical commercial mediation model adopted in the Law Society mediation training course envisages some pre-mediation work; an initial joint session during which the Mediator makes some opening remarks; a period when the parties may remain together and in supervised dialogue by the Mediator; a period where the Mediator meets with the parties on their own in a private session; and then a period where the mediator may ‘shuttle’ between the parties with a view to establishing where an overlap of areas agreed can be established and a better understanding achieved of which issues are important to the parties and on which some compromise or flexibility may be achieved.
During the mediation, the Mediator will form an impression of whether an agreement is possible. If the conclusion is that an agreement is not possible the Mediator will wind up the mediation by inviting the parties back together summarising any progress that has been achieved and then reminding the parties that all of their options remain open - to continue court proceedings or to negotiate directly should that prove useful. If however the Mediator concludes that an agreement is possible then with perseverance the point might arise where all issues are agreed and the Mediator can then assist the parties in writing up the essential terms which are agreed, supervise the execution of the settlement agreement and will then invite the parties back to a closing joint meeting when the terms of settlement will be read over to the parties. The Mediator will require to be satisfied that those terms are understood.
4 Response of the Profession and the Courts
In England and Wales there has been significant judicial observation regarding the important part mediation has to play in modern civil process. This however is against the background of Civil Justice reforms in England and Wales implemented following the Woolf report on Civil Justice. These reforms place an emphasis on pre-action steps which must be taken and include when lodging papers in court the consideration by the parties of whether a mediation process would assist.
In Northern Ireland although Lord Justice Campbell undertook a review of Civil Justice, not all of his recommendations have come to be implemented, however in many important respects mediation now does play a part in court process. In the High Court for example there are Practice Directions issued by the Judiciary regarding the conduct of proceedings before those particular courts. For example the Queens Bench (Commercial List), Practice Direction no. 1 of 2000 amended 7th October 2002 states:
“the court is anxious to encourage serious attempts by the parties to enter into productive negotiations with a view to achieving a mutually satisfactory resolution of the litigation…“
“the Commercial List Judge may draw the attention of the parties to commercial litigation to the existence of alternative means by which a case ….may be resolved including, in particular, a suitable form of Alternative Dispute Resolution.”
In addition on the Court Service website dealing with commercial disputes a link is placed directing users to the Law Society Dispute Resolution Service and the Commercial Court judge at callover can enquire whether the parties have considered mediation and if not why not.
In Clinical Negligence cases, a pre action Protocol dated 27th February 2009 operational from 20th April 2009 suggests that parties
“should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation……a mediation service is provided by the Law Society of Northern Ireland. Generally the courts take the view that litigation should be a last resort”
These Practice Directions by the High Court in Northern Ireland are reflective of decided case law from the Court of Appeal in England and Wales and in particular reflect observations made in the leading case of Halsey –v- Milton Keynes National Health Trust 2004 WECA (Civ) 576. The Halsey case enumerated a number of factors which should be taken into account by a court in deciding whether a party has unreasonably refused to participate in mediation and thereby potentially exposing themselves to an adverse costs order even if they win the case which they insist should proceed in court.
The legal profession in Northern Ireland has benefited now from the existence over a number of years of the Dispute Resolution Service and has benefited from a number of solicitors and barristers having undertaken mediation training. In addition the Judiciary has been provided with some basic awareness training and therefore advisors and the Judiciary are better placed than ever to be able to advise their clients as to what to expect if mediation is undertaken, what cases might be best suited for mediation and to have confidence in the mediation process. Despite this increase in awareness and training and knowledge the number of cases referred for mediation remains relatively speaking low, while the number of cases which settle often very close to the day of trial remains high.
There is a challenge for the profession as to whether the ability to achieve resolution and settlement could not be better managed and in the words of Lord Woolf in the case of Cowl –v- Plymouth District Council 2001 EWCA (Civ) 1935 parties should be aware of the contribution mediation could make to resolving disputes
“in a manner which both meets the needs of the parties and the public and saves time expense and stress”
Brian H Speers, Solicitor and Mediator
CMG Solicitors
Belfast
