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<xTITLE>Mediation in Ireland: Current Trends, Future Opportunities: Part 2</xTITLE>

Mediation in Ireland: Current Trends, Future Opportunities: Part 2

by Caitriona Heffernan
January 2012 Caitriona Heffernan

(Read the first article here.)

Training and Accreditation

There is currently no statutory basis for the training of those involved in mediation. There are a variety of bodies with different standards. The LRC added that formal training may not be required as mediators are “born not made” . However in my own opinion this is not a satisfactory conclusion as the need for appropriate training is an essential foundation. Training is vital to improve consumer confidence in the mediation process. As our Judiciary are more frequently recommending parties mediate, they must have confidence in the quality of those who undertake the task, in order for the process to integrate into our Civil Justice system. Lawyers in particular could allow the infiltration of mediation when discussing resolutions with their client at preliminary stages and they are in a strong position to actively encourage it.

 The Law Society and Bar Counsel of Ireland have established arbitration and mediation committees. The Bar Counsel have also included a “Search for a Mediator” tab as a new section on its website, allowing parties to combine their search for barrister and accredited mediator at the same.

What we can learn from other jurisdictions?

Evidence of this relatively new concept of mediation to the Irish Courts has long been in practise in other jurisdictions for centuries, where it is a natural process for disputes to be resolved informally and in a non-adversarial manner. A number of underdeveloped countries in Africa consider mediation as a preference to a corrupt weak based court system especially for countries that operate under a Rule of Law system. Alternative methods include tribal elders, community leaders or local codes of ethics providing satisfactory means of solving disputes where “demand of access to justice far exceeds capacity of the court services” Mediation provides extremely practical solutions to weak judicial systems. Such traditional methods prove effective in a manner in which we could learn from their example.

What lies in the future?

Lord Woolf’s suggested solution to resolving disputes effectively was “simplification of regulations and promotion of a co-operative approach to dispute resolution” In recent years the Irish Judicial system has conveyed significant developments in the area of mediation and has began to heavily promote it as an alternative to the adversarial nature of litigation. Its success will lie at the heart of a case managed Court System where judges will need to make every effort to refer disputes to mediation and ADR as cost effective and efficient means of unclogging our congested courts. It does not constitute the end of lawyers for the future but seeks to exist a alongside the litigious actions of our courts.

In conclusion this paper aimed to emphasise the importance of a greater need to mediate in our jurisdiction. It offered an over view of ADR in general and focused in particular on the strength of the process of mediation. It investigated its key principles, main advantages and areas of society in which mediation is most effective namely property, construction and healthcare. Finally it looked at how other jurisdictions incorporated mediation into their Civil Justice systems. Mediation can be vital for the survival of long term business relations, as well as keeping cost of disputes to a minimum and in the overall liberation and improvement of the courts resources where a higher standard of dispute resolution is achieved that complements both the existing legal system and society as a whole. Kelly J, stated that to avail of ADR as a means of settling disputes in Ireland is still regarded as: “something of a novelty and looked upon with suspicion” Perhaps this is remains to be the reality of the perception in our courts system, however, we can only remain hopeful that as a greater understanding of mediation expands, clients, their advisors and the judges of our courts system will become more receptive to mediation as a real means of effective settlement. We may have marginally progressed to Murray J’s timely ambitions of providing an “anecdote” for our “too casual recourse to litigation.” From Ireland’s perspective it is imperative, especially in these recessionary times, that an effective mediation system is soon incorporated as a “first and only option” . It is a more realistic attitude adopted by the Honourable Warren K Winkler, Chief Justice of Ontario to consider that “If litigants of modest means cannot afford to seek remedies in the traditional court system, they will be forced to find other means to obtain relief…” Perhaps it is necessary for us to incur these economically trying times in order for our judicial system and its people of somewhat less extortionate means to render themselves “forced” to resort to the alternative measures of mediation, which may only be in a short matter of time.   

Law Reform Commission Alternative Dispute Resolution consultation paper Chapter 6, Medical Issues and ADR 306

Woolf Access to Justice Final Report 1996 www.dca.gov.uk/civil/final/index.htm

www.lawreform.ie/.../consultation-paper-on-alternative-dispute-resolution.186.html

Ibid 7

Winkler (2007) )Op.cit.14

Biography


Caitriona Heffernan is an accredited mediator with Mediation Forum Ireland. She has been awarded a scholarship in accredited mediation training. She is included on the MFI panel of mediators and is currently working with Mason Hayes and Curran solicitors in Dublin.



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