Solicitor and commercial mediator Paul Kirkwood asks whether Scotland should follow Ireland in introducing mediation legislation.
I had the pleasure of attending an address by the President of The Mediation Institute of Ireland, Sabine Walsh on 4 December 2017 at the Scottish Mediation Network headquarters in Edinburgh. The subject was the Republic of Ireland’s passing into law on 2 October 2017 of its own Mediation Act 2017.
This was the culmination of more than 10 years effort by the MII, and came into force during its 25th anniversary! Sabine kindly directed us to some of the Act’s headlines. These are as follows.
For the purposes of the Act, ‘‘mediation’ means a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute’; and a ‘‘mediator’ means a person appointed under an agreement to mediate to assist the parties to the agreement to reach a mutually acceptable agreement to resolve the dispute the subject of the agreement’ (section 2 (1) (o)).
The Act doesn’t define directly what it applies to, but rather provides what the Act will not apply to per section 3; including the following exclusions:
2) a dispute under the Workplace Relations Commission/Workplace Relations Act 2015-this has its own mediation provisions already
3) tax appeals
4) proceedings in court relating to judicial review
5) proceedings in court relating to alleged infringements of the fundamental rights and freedoms of a person
6) proceedings relating to the Domestic Violence Acts 1996-2011
7) proceedings under the Childcare Acts 1991-2011
aside from these exclusions, mediation applies to basically everything that can be legally disputed.
Section 6 provides that mediation is voluntary (but see anon); the fact proceedings have already been issued doesn’t debar (further) mediation; parties can withdraw from mediation at any time; parties may be accompanied into mediation and assisted there by a person (including a legal adviser) who is not a party and obtain legal advice any time during mediation.
Section 6 also provides that a mediator may withdraw from mediation at any time but must give notice in writing to parties stating their general reasons for withdrawal. It also provides that it is for parties to determine the outcome of the mediation (but see anon).
Agreement to Mediate
Section 7 provides that there will be one, signed by all parties and the mediator which must specify amongst others:
1) how the mediation is to be conducted
3) that the mediation will be conducted in a confidential manner
4) that parties may seek legal advice
5) the manner in which the agreement may be terminated
6) any other terms agreed between the parties and mediator.
Role of Mediator
Section 8 requires mediators to make enquiries as to whether they have an actual or potential conflict of interest, and not to act if they do. It also requires mediators to provide information about their training, qualifications and details confirming which Code of Practice they act under. It requires mediators to act impartially and to treat the parties fairly. This section provides scope for potentially significant difficulties-where one party is at a disadvantage, perhaps lacking legal support, it is possible that a mediator, in seeking to treat a party ‘fairly’ (this is not defined and neither is impartiality) may breach his obligation to act impartially.
Section 8 (3) provides that the outcome of mediation is to be determined by the parties and that a mediator won’t make proposals to the parties to assist in resolving the dispute. However, section 8 (4) then provides that mediators may (at their discretion), if all parties so request, make proposals to parties to resolve the dispute-but that it will still be up to parties to decide whether to accept such mediator proposals.
The Act therefore provides a hybrid model of mediation (at the parties’ and mediator’s discretion). The primary model of mediation provided is Facilitative Mediation-but if both parties ask, and if the mediator wishes to, the mediator may provide non-binding proposals (without breaching his impartiality or fairness obligations) based upon his own assessment of the dispute- a type of Evaluative or Strategic (Directive) Mediation. This approach is not entirely dissimilar to that in the Employment Relations Act of New Zealand where mediators, at their discretion, may provide proposals and practice either Facilitative or Evaluative Mediation. The Mediation Act nevertheless seeks to protect mediation’s fundamental principle-parties’ right to self-determination-by leaving it open to parties to accept or reject the mediator’s proposals.
Code of Practice
Section 9 provides that the Minister may prepare and publish such a code- there isn’t one yet-but it is envisaged that one will be forthcoming.
Section 10 (1) provides (subject to section 10 (2) and section 17 anon) that all communications (including oral statements), and all records and notes (handwritten, typed or dictated) relating to the mediation shall be confidential and shall not be disclosed in any proceedings before a court or otherwise.
But section 10 (2) provides that section 10 (1) will not apply to such communications where disclosure:
1) is necessary in order to implement or enforce a mediation agreement
2) is necessary to prevent physical or psychological injury to a party (for example the mediator discovers that behaviour (e.g. bullying) by one party, say a manager/spouse to another, say an employee/ spouse was likely to cause either physical or psychological injury)
3) is required by law
4) is necessary to prevent or reveal
a) commission of a crime
b) concealment of a crime
c) a threat to party
5) is sought to prove/disprove a claim of professional negligence against the mediator.
And Section 10 (3) provides that evidence introduced or used in a mediation that is otherwise admissible or subject to discovery in legal proceedings shall not be or become inadmissible or protected by privilege in those proceedings just because it was introduced on used in the mediation!
There are therefore many reasonable instances where confidentiality will not apply. It is also the case that the Act does not provide mediator privilege- it is not open to the mediator to refuse to give evidence.
Enforceability of Mediation Settlements
Sections 11 (a) and (b) provides parties decide if/when a settlement has been reached between them and whether such a settlement is to be enforceable. But section 11 (2) provides an agreement between parties will have the effect of a binding legal contract, unless parties state in that settlement that it is to have no legal force until incorporated into a formal legal agreement/contract signed by the parties.
However, the court on the application of one or more party, may refuse to enforce a mediation contract if, per section 11 (3) (a) the mediation settlement-
1) doesn’t adequately protect the rights/entitlements of parties/their dependents
2) was not based on full/mutual disclosure of assets, or
3) is contrary to public policy
(b) one party has been overborne or unduly influenced by any other party in reaching the mediation settlement
Solicitors and Mediation
In terms of section 14 (1) a practising solicitor, before raising a case in court on behalf of a client must
a) advise the client to consider mediation as a means of dispute resolution
b) give the client information about mediation, including the details of people who provide mediation
c) provides the client with information about:
the advantages of resolving the dispute otherwise than by going to court, and
the benefits of mediation.
d) advise mediation is voluntary
e) tell the client about the enforceability of mediation agreement provisions and about mediation confidentiality.
Section 14 (2) provides that the solicitor raising proceedings in court must sign a Statutory Declaration and lodge it at the same time. The Statutory Declaration must evidence that the solicitor has performed the statutory obligations upon him.
The Court and Mediation
Even where proceedings have been raised in court and the solicitor has provided a Statutory Declaration per section 16 (1), the court on its own discretion may invite parties to consider mediation as a means of dispute resolution.
In terms of section 17, following an invitation by the court, where parties engage in mediation and subsequently seek to re-enter the court process, the mediator must prepare and submit a report to the court setting out:
1) if mediation didn’t take place, why it didn’t
2) where it did take place, a statement as to whether agreement was reached not;
3) where agreement was reached in whole or part, a statement of the terms of the agreement.
Sabine indicated that solicitors in the Republic of Ireland were largely proceeding- in conjunction with their clients- on the basis that whilst strictly mediation wasn’t mandatory, in reality it was, and were therefore seeking to embrace mediation as part of the dispute resolution process.
Factors to be considered by Court in awarding costs
Per section 21, the court, with regard to court action raised under section 16, where the court subsequently invited parties to consider mediation, can have regard to:
a) an unreasonable refusal/failure by party to consider using mediation
b) an unreasonable refusal/failure by party to attend mediation.
It seems odd to me to put the onus on a solicitor to explain the benefits of mediation as a form of dispute resolution to a client, as in my own experience most solicitors don’t know much about it or its benefits, such as much faster resolution, with less risk and stress.
The implication of section 21 however seems to be that the court will encourage parties to mediate and where they fail to do so, parties will run the risk of an adverse award of costs.
It is the case that one of the guiding principles of mediation-it is voluntary-has been hedged about in terms of the Act. However, if parties do engage in mediation and are unable to reach agreement, then it seems unlikely they would subsequently attract such an adverse award of costs.
What we know from practice in England, for example in Special Education Needs cases, is that where people access mediation information sessions, as they must as a prerequisite for subsequently going to tribunal (they need a certificate from a mediator saying that they have), the majority then opt for the full mediation, and the majority of those then settle without further tribunal action. This obviates the need for expensive (for the State, individuals and companies) court procedure and hearings, providing much faster, less financially risky, resolution of disputes, with much more effective access to justice, as mediation maintains the link between clients and their solicitors.
Should we have a Mediation Act in Scotland?
As a mediator and solicitor, I have to declare an interest. My view is that we should. Mediation maximises in particular individual’s self-determination and control in a way that their peripheral engagement in litigation does not. They have direct input and call the shots; but they still benefit from having good legal advice from their solicitors who are present. It also makes t much faster, less financially risky, and far less stressful resolution.
I can’t do better in expounding mediation’s virtues than by quoting Sabine Walsh – ‘Mediation is a fantastic method of resolving disputes. Mediation is fast, cost-effective, confidential and involves direct input from the parties themselves. In my experience mediation is an incredibly effective tool for resolving even the most bitter disputes’.
- Paul Kirkwood is director of MNCRS – Mediation, Negotiation and Conflict Resolution Services.