The demand for mediation is on the rise, and is been driven by clients wishing to reduce costs and time. This is especially true in view of the fact that the Court can now instruct/recommend parties to mediate. This is a new area for legal practices, and can have a positive effect on your practice.
The principal queries that we receive at Mediate Ireland from practitioners wishing to find out more about Mediation, is how to act in Mediations – before, during and after:
- What is the role of the Solicitor?
- How and when should Mediation be suggested to a client?
- How should one respond to a suggestion of mediation made by one’s own client – or by the other side?
- At what stage of a dispute can/should mediation be considered?
- What does one do if a Court or County Registrar recommends mediation and asks the parties to report back in 28 days on their efforts in that regard?
- What cases are suitable (or not) for mediation?
- Can the Solicitor continue to act for the client if the mediation process is unsuccessful?
- Can absolute confidentiality be assured?
- What liability can attach to a Solicitor who signs up to an Agreement to Mediate, or recommends a client to do so, if the client ultimately takes proceedings by virtue of the outcome?
- Does the Solicitor adopt a “hands on” approach and effectively be the client’s spokesperson throughout the process? or, does he/she attend at all? or, does the solicitor attend merely to advise the client as the mediation develops?
- What is the mediation framework?
- Is the Mediated Agreement binding?
- Are there costs implications for refusal to participate if mediation has been suggested/ordered?
- What skills are needed to be effective in representing a client in Mediation?
- How can one sign up to a process in which one agrees to act in a context in which one is obliged to assist in trying to come to a settlement/mediated agreement (as are the legal representatives on the other side) as opposed to the obligation to fight for the best outcome possible for one’s client?
You will appreciate that these are only some of the questions being considered by practitioners in the context of the emergence of Mediation as an ADR process being actively promoted both by the Judiciary and by legislation passed and in the pipeline by virtue of the Government’s obligation under Article 5(1) of the 2008 EU Directive on Certain Aspects of Mediation in Civil and Commercial Matters to bring in a Mediation/ADR Act before 21st may 2011
The Role of Solicitors and Barristers in Mediation
Referral to mediation will alter the control configuration. It represents a reversal of a solicitor’s conventional role, in that it returns control to the client and involves the solicitor temporarily in an entirely different and less central role in favour of another professional. This does not mean that he ceases to have responsiblity for his client, or that his client cannot consult him, or that other legal options are ruled out. Often the agreement reached in mediation will have legal formalization aspects and other matters arising out of the mediated agreement to be dealt with thereafter by the practitioner. If mediation is unsuccessful and an agreement has not been reached, the solicitor reverts to his traditional role, and mediation is terminated. Since the proceedings of mediation are confidential, as far as is possible, further legal action proceeds as if mediation had not occurred.
The mediator leaves control over the outcome of the dispute in the hands of the parties He assists and facilitates them in coming to a fair agreement which reflects their subjective view of their differences by helping them to widen the perspective of their individual interests and to equalise the balance of power between them.
The solicitor/barrister will decide with his/her client on the role to be played by the lawyer in the mediation.
Essentially this role will fluctuate between “hands off” at one extreme – letting the client off on his own to pursue his own position in the process and come back thereafter; “hands on” at the other extreme in which the solicitor and/or barrister may effectively be the spokesperson for the client in plenary sessions of the mediation; or, more likely somewhere in between – there, but in a less central and more advisory role. Irrespective of which position is adopted by the lawyer(s) in the mediation they will have signed up to an agreement to mediate containing a provision that all parties, including representatives, have entered the process for the specific purpose of coming to an agreement and no party will act in any way that might frustrate that purpose. The object of the exercise is for the parties to reach their agreement and all professionals must actively assist this process. This will involve quite a change in mindset for professionals weaned on the adversarial process.
Traditionally, a solicitor with or without Counsel, will advise the client on the nature and protection of his/her rights, the possibility of legal action and the likely outcome of such action. Depending on his clients ability to perceive his/her interests, this advice may vary in emphasis. On the one hand he may consider that action designed to achieve straight satisfaction of his client’s demands by reference to legal principle or precedent is appropriate; on the other hand, where he feels that his client is uncertain or has no clear view, he may give advice according to his own judgment. The progress of the dispute may be altered by one side having the assistance of a more skilled lawyers than the other; the advice or expertise of third parties may inform the process to a greater or lesser extent; the negotiations may be completely taken over by partisan ‘champions’ acting for each side who then persuade the disputants to accept any outcome they have agreed; finally complete loss of control over decisions will follow if the dispute is made subject to court adjudication.
In Mediation it is vital that the solicitor be openly sympathetic to the achievement of a subjectively fair agreement. Mediators, Solicitors and Barristers will have a mutual concern for the problems of the parties and they will approach these problems from a different perspective, utilising their separate professional skills and expertise. Neither approach is invalid, one likely to be more appropriate than the other in individual cases. Mediation does not deprive parties of their right to pursue their interests, seek legal or other professional advice or take legal action if an agreement is not possible. Nevertheless, a solicitor will always be conscious of his duty to protect his client’s rights and privileges and he will correctly have this in mind when formalising any mediated agreement. However, he must be prepared to apply a different measure of fairness to an agreement than might apply if he negotiated it on his client’s behalf.
Mediation is an option which allows the parties to a dispute to make decisions according as they feel is appropriate for themselves and their circumstances. Where it is possible to achieve this, the increased self-respect it will bestow on them, together with the reduction in bitterness, will help them to develop continuing relationships and obligations, and to deal with any future problems.
Mediate Ireland are now providing Mediation Advocacy Training Programs which are constructed and devised to address these and other such practical issues.
It will be appreciated that many of the trainings currently on offer are both expensive and are aimed at people wishing to qualify as Mediators. The Training Programs that Mediate Ireland intend to provide are aimed at practitioners who will be involved with or on behalf of clients at and throughout Mediation processes; how to act in such a way as to assist in making the process work while continuing to act in the client’s best interests.
If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 087-2268394 to discuss your requirements or organize a mediation.
For more information on our mediation services CLICK HERE
Mediation Advocacy Training
Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.
For more information on our training programs CLICK HERE