By Mary Hallissey
Law Society Gazette, Ireland
High-conflict or ‘absolutist’ personalities are completely unsuited to the process of mediation, and should be steered away from it, a seminar on the mediation process in Ireland at the King’s Inns in Dublin heard in mid-January.
And some clients will not wish to take ownership of finding mediated solutions and will always prefer for a judge to make a ruling, the seminar heard.
But this decision to participate or not can’t be made by external entities, because that would be disempowering, the seminar heard.
Mediation in its pure form sounds like a good concept, but some speakers from the floor felt that certain people simply may not have it in them to be part of a mediated settlement.
Strength to make decisions
At an initial session, decision-making ability must be assessed – and whether the party has the strength to make those decisions. This is part of the skill of being a mediator.
Judge Rosemary Horgan said that, in her view as a member of the GEMME (the European association for judges interested in mediation), it remains a very flexible part of the legal toolkit.
Horgan added that tools to aid mediation are widely available online, with comparative analysis of varying national legislation.
Maladaptive patterns
She said that maladaptive patterns of response to conflict could be re-learned, which was all part of the move away from adversarial court battles towards more productive patterns of dispute resolution.
She commented that access to justice was a key theme of the European Commission, and that mediation promoted this.
Parallel mediation
Legal academic Dr Róisín O’Shea agreed that mediation was flexible, describing what she called ‘parallel mediation,’ whereby the parties are dealt with separately, on different days.
She pointed out that even serious criminal charges did not mean that an accused ceased to be a parent.
“Parenting still has to happen,” she said.
However, mediation is currently used in fewer than 1% of cases, the seminar heard.
Washtenaw County Circuit Court Judge Tim Connors, who works in civil and domestic divisions in Michigan, gave his opinion that the justice system needed to be taken in a different direction.
He commented that, over the course of a long career, as a lawyer and as a judge, he had begun to think deeply about the adversarial system of justice, and had cast around for other potential solutions.
Indigenous tribes
Indigenous tribes in the U.S. were less focused on power and property, or the protection of these under the law, or with punishing those who damaged them, he said.
Connors believed that the power-based approach did harm, and that we needed to go back to traditional values, based on relationships.
Peace-making
He described the peace-making process, as practiced by Native Americans, which he said had reduced the number of children in foster care in his Michigan area by 35%.
He added that Native Americans believed that everyone was related, in the sense that we share the same planet, live in the same time and space for a limited period, and that the decisions made today would affect a total of seven generations.
The second inter-connected and fundamental tribal value was ‘responsibility.’ The individual always had a responsibility to the community, he explained. The third tribal value was ‘respect.’
Conflict
“No matter what the conflict, we must always deal respectfully with each other,” he said.
The fourth tribal value was ‘resilience’ – to let go of whatever harm had caused hurt in a situation.
“I’m all in on this mediation thing!” he concluded.
Dr Róisín O’Shea said that parties must be helped understand the mediation process and assisted throughout the process. The mediator was the key resource in ensuring that this happened.
Balancing interests
“You must be all things to all parties,” she said, balancing the interests of all parties to the mediation.
But lawyers were also an essential element of the toolkit, she said, and the lawyer’s job was to scrutinise any mediated agreement.
Mediation is still not mainstream, though under the law, the option to mediate must be explained to all parties in a dispute.
Add-on
The seminar heard that teaching mediation should be more central to legal education, rather than regarded as an add-on.
O’Shea, and her fellow academic Dr Sinéad Conneely, discussed their research into what was then the Mediation Bill.
Introduced to the Dáil in 2017, it was intended to apply to most civil disputes.
Justice minister Charlie Flanagan identified its objective as a “viable, effective and efficient alternative to court proceedings”, which would integrate a statutory framework for mediation into the civil justice system.
The act provides that concerned parties have the right to decide whether a mediated settlement has been reached, and if it is to be enforceable between them.
Competently drafted
“This places an obligation on the mediator to ensure that any mediated settlement is competently drafted and capable of enforcement,” the academics say.
Sufficient legal knowledge is, therefore, a fundamental requirement to family mediators to ensure that any such agreement does no fall foul of section 11(3) of the act, to adequately protect the rights and entitlements of the parties, and that any agreement is based on full disclosure of assets.
However, the researchers have warned that the manner in which mediation is developing in Ireland is not in-keeping with international standards.
They say that regulation and oversight of mediation needs to be prioritised to ensure clarity around training standards, codes of practice, and professional accountability.
Opt-outs
O’Shea and Conneely have both written to the Department of Justice, objecting to opt-outs from the act where proceedings are under way, either under the Domestic Violence Acts or under the Child Care Acts.
Citing section 22 of the Child Family and Community Service Act (BC Canada), and prescribed methods in Ontario, they said: “It is recognised internationally that mediation can and should take place in child protection cases.
“Equally, seeking to prevent victims of domestic violence from accessing mediation if they wish to do so is disempowering and limits their choices, particularly where there are children, and parenting issues or maintenance arrangements must still be resolved.”
Market distortions
The academics also told the seminar that “universally free” mediation services could have the effect of diminishing their value, and introduce “market distortions by discouraging the professionalisation of mediation”.
John McDaid of the Legal Aid Board commented: “The solicitor or the lawyer is still the gateway to resolving a lot of dispute-resolution problems – and the solicitor’s mindset is absolutely critical.”
He added that building trust was essential for successful mediation.
Academic path
The seminar heard that an agreed academic path to becoming a mediator would be a good step forward, but that there was some discussion as to whether mediation should be regarded as an additional skillset or a professional qualification.
Dr Róisín O’Shea commented that certificate-level training was necessary, and should include legal, family law, and contract law modules – though should not necessarily include law degrees.
She warned that mediated separation agreements have a binding legal outcome.
Sufficient legal action
If that’s what a separating couple chose, then the wise course of action was to obtain sound legal advice. In this situation, the mediator had to have sufficient legal knowledge to properly guide them.
She described a mediator who had experienced a problem with a mediated separation agreement, which had been properly drawn up, was legally binding, and had been entitled a ‘separation agreement.’
The wife returned to the mediator some months later, asking about pensions.
The mediator, however, hadn’t raised the issue of pensions with either party, or hadn’t understood that pension-adjustment orders should be made, despite the separating couple both nearing retirement age during the time of mediation.
The husband had retired shortly after the separation, and had taken a huge chunk of retirement annuity.
The seminar discussed what should be done if the mediating parties did not wish to receive legal advice.
Mr. Justice Henry Abbot said that, as part of an ‘evolutionary process,’ judges were picking up provisions of the Mediation Act and intervening at
case-management stage to seek adjournment for a mediation session – if it were the sensible thing to do.
Vital role of solicitors
The seminar heard repeatedly that solicitors play a vital role in what is, essentially, a collaborative process, to enable clients to exercise their right to have a legally enforceable mediation settlement.
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Reproduced with the permission of the Law Society Gazette, Ireland (www.gazette.ie)
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