Mark Small & Mary O’Dwyer from Mediate Ireland were invited to give an oral presentation to the Government Joint Committee on Justice, Defence and Equality on the 9th of May 2012, in relation to the proposed Mediation Bill 2012. This followed on from Mediate Ireland’s written submission to the committee. The main areas of concern that Mark raised at the meeting were, aspects surrounding Confidentiality and a National Register for “Certified / Registered Mediators”
Generally speaking litigation is held in an extremely adversarial environment and Arbitration which is currently the most widely used form of Alternative Dispute Resolution in Ireland also suffers from the same problem. Mediation, another form of ADR, is unique in that it helps to create a non adversarial environment, leading to more successful, and longer lasting resolution of disputes. International Research has shown that 8 out 10 mediation’s are successful, and we have found that to be the case in our mediation’s. A vast majority of Mediators, Internationally and in Ireland agree that the reason for the success of Mediation is largely due to the confidential nature of the process and that confidentiality increases the parties willingness to constructively engage in the mediation process.
There can be many people involved in a mediation, however they form 3 groups.
- The parties to a dispute
- The mediator or mediators
- And the non parties – including all advisors or support personal attending the mediation. These can include Solicitors, Barristers, Financial advisors, Family or friends
Head 10 provides that Confidentiality can be waived if “expressly waived by all the parties”.
This is ambiguous in that you would not be confident to whom this applies. Does it apply to the Mediator and non parties also? if not, this would severely limit the effectiveness of the mediation process, and may make it pointless, or purely a fishing exercise to aid further litigation. We recommended that the committee needs to relook at this section of the Draft General Scheme.
The Law Reform Commission published a draft Mediation Bill in November 2010. Section 7 of that draft relating to confidentially we believe was much clearer in saying that, “the mediator, parties, and non-parties may refuse to disclose, and may prevent any other person from disclosing, a mediation communication” it further went on to say that, “the mediator, parties, and non-parties” must all waive the confidentially.
As we believe that confidentiality is the Corner Stone of a Successful Mediation We strongly recommended that the committee take note of Section 7 of the LRC Draft Mediation Bill 2010
National Register of Mediators
This has not been covered in the Draft General Scheme and we feel that it is of vital importance to the general public.
Mediators can come from all types of backgrounds, and there is no one profession that makes better or worse Mediators, however initial formal training and more importantly ongoing training is essential for a successful Mediator.
Currently in Ireland there is no place where the general public can access a single list or register of Mediators. The result of this is that any person can put up a sign and call themselves a Mediator. There is no way for the general public to know if that person has any training what so ever or is following a particular code of conduct. A similar situation existed in relation to Architects until the enactment of the Building Control Act 2007, which provided for a national register. We recommended that the committee consider provisions to enable a national register similar to the way that the Architects Register was introduced.
There are currently a number of groups who maintain a list of Mediators, for example the Irish Commercial Mediators Association, Mediation Institute of Ireland, Friary Law and Mediate Ireland. In some cases these are public lists or in the list held by Mediate Ireland it is a private company list.
We are not suggesting that the word “Mediator” should be protected as we feel that there needs to be scope to allow development of mediation in other areas, such as community, social and sports mediation. However we feel that words such as “Registered or Certified Mediator” be used to identify a person who has achieved a specified level of training, adheres to a particular code of conduct and participates in ongoing education. This would go some way towards protecting the general public when engaging a professional to help resolve their dispute. It would then be up to a member of the public to decide for themselves what level of mediator they wished to use.