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Judges and mediation

13 Jul 2022 / Mediation Print

Embracing mediation

In recent years, there has been significant interest in mediation, and it has become a much more common approach to dispute resolution. Judge Keenan Johnson and Dr Bernadette Ní Áingléis say that this has motivated judges to familiarise themselves with the concept.

The EU’s Mediation Directive, together with the Law Reform Commission’s consultation paper and report on alternative dispute resolution and alongside the enactment of the Mediation Act 2017, have all contributed to the growth in mediation.

GEMME – Groupement Européen des Magistrats pour la Médiation/European Association of Judges for Mediation – is an organisation that seeks to assist judges in familiarising themselves with mediation.

The establishment of GEMME Europe and the Irish branch (in 2016) reflects this growth in mediation practice, which has been driven by both legislative changes and a growing realisation by litigants and practitioners that mediation has much to recommend it over the traditional adversarial form of dispute resolution.

The Mediation Directive (enacted on 21 May 2008) was given effect in Ireland under the European Communities Mediation Regulations 2011.

It applies to cross-border disputes only, and it obliges each member state to encourage the professional training of mediators and to ensure a high standard of mediation. Interestingly, the directive notes that mediation can be conducted by a judge provided she/he is not responsible for any judicial proceedings concerning the dispute.

The Mediation Act 2017 allows judges to direct parties to consider mediation. For judges to make such a direction, they must be familiar with mediation and the processes involved. Towards this end, the establishment of GEMME Ireland has provided judges with a pathway to understanding the dynamics of mediation and how the process works.

Having an in-depth knowledge of mediation (which GEMME membership provides) enables a judge to make a more informed and potentially more successful direction to the parties to engage in mediation.

Furthermore, it enables a judge to determine what disputes are best suited to resolution through mediation, how best to introduce the concept to the parties, and when best to make such an introduction. This knowledge is critical to ensuring that mediation has the best prospects of success.

It is hoped that the establishment of GEMME Ireland and the growth in its membership will ensure that mediation becomes embedded in the Irish legal system. It will also position Ireland strongly to take advantage of the opportunities to host the mediation of international disputes following Brexit.

Ireland is now the main common-law English-speaking jurisdiction in the EU and is in pole position to host dispute resolution between EU countries and other common-law jurisdictions, such as the US, Canada, and Australia.

Flexible process

Mediation offers a flexible, non-adversarial resolution process underpinned by the voluntary engagement of the parties. The primary focus of mediation is on the interests of the parties as opposed to their respective rights. It is a process that requires a fundamental belief in the potential of the parties to resolve their differences.

When resolving disputes through litigation, a judge is generally required to determine matters on the basis of legal rights. This process frequently does not allow for the emotional backdrop and feelings of the parties, which regularly play a significant role in the resolution of the dispute.

A strong feature of mediation is that the process is not constrained by pleadings. It provides a forum whereby issues outside of the pleadings, but which are playing a strong role in the intensity of the dispute, can be ventilated respectfully and reflected upon by the parties.

Accordingly, mediation has the potential to remove the obstacles that are preventing the resolution of the dispute, while at the same time preserving the relationship between the parties.

The preservation of the relationship is particularly important in family-law disputes, and mediation has a key role to play in the resolution of these highly emotionally charged disputes.

In mediation, the resolution of the dispute at all stages remains within the ownership of the parties. It therefore gives the process a greater prospect of being successful, in contrast to a litigated solution that involves a judge-imposed solution.

Turlough O’Donnell SC, in a joint seminar with Mr Justice Michael Peart (hosted by GEMME Ireland in 2019 and moderated by Emer Woodfull), drew attention to the importance of learning core mediation skills that will ‘hold the space’ – the non-physical space where people come to reconcile. GEMME Ireland seeks to assist judges to understand mediation and how and where it works best.

GEMME Ireland

GEMME is an association of judges of the EU member states and member states of the European Free Exchange Group, including Switzerland, Liechtenstein, Norway, and Iceland.

The primary aim of GEMME is to promote national associations of judges who are committed to mediation and other alternative forms of dispute-resolution processes that are legally permitted.

Participation in GEMME conferences and related activities enables the sharing of information and best practice in mediation across Europe. It also affords opportunities for the professional training and upskilling of judges in effective mediation and ADR approaches.

The first chair/president of GEMME Ireland was Mr Justice Paul Gilligan (retired judge of the Court of Appeal). The current chair/president is Ms Justice Mary Rose Gearty (High Court), inaugural director of Judicial Studies in Ireland and head of European affairs for GEMME.

The other executive officer members are Judge Rosemary Horgan (secretary), Keenan Johnson (PRO), and Judge David McHugh (treasurer).

Membership of GEMME Ireland includes many members of the Irish judiciary and associate members who are accredited mediators.

The branch regularly hosts presentations and seminars on mediation and ADR topics, including mediation in commercial matters, family-law matters, civil matters, and in the area of restorative justice. The events are live-streamed to maximise engagement.

Last November, Sir Geoffrey Vos (Master of the Rolls and head of civil justice in England and Wales) was the keynote speaker at the GEMME Ireland event on mediated interventions within the court dispute- resolution process.

Sir Geoffrey spoke of how dispute resolution outside or alongside the court process should be the default position, as it is usually quicker, cheaper, and more satisfactory to the parties. He referred to the use of artificial intelligence in the settlement of minor commercial disputes.

Sir Geoffrey confirmed that digital technologies have been used successfully in resolving a range of civil cases, freeing up court time, costing significantly less, and reducing psychological and economic harm for parties involved – and for society more broadly. He concluded that “technology now allows us to rethink justice” and that “mediation should be in the vanguard for online dispute-resolution approaches”.

He further suggested that mediation should no longer be considered as ‘alternative’, but rather be seamlessly interwoven into the lexicon, principles, and practices of dispute resolution in the legal justice system.

Throughout his presentation, Sir Geoffrey emphasised that the spotlight should always be on the resolution of matters through mediation at the earliest opportunity, as this enables people to get on with their lives.

He believes that mediation should be suggested at every stage of the dispute-resolution process, from prior to the institution of proceedings, through the course of the proceedings, and continuing even when the matter has commenced in court.

He reminded the audience that the role of the judge is to serve the people, and that there would always be a need for court processes. He proposed a recalibration of the judicial role – from focusing on dispute, to focusing on resolution.

Unquestionably, the enactment of the Mediation Act 2017 gives Ireland, and individual members of the judiciary, plenty of scope to consider embedding the key tenets of Sir Geoffrey’s presentation into legal practice and legal thinking.

Mediation is used most frequently in the areas of family law and commercial disputes.

Family mediation seminar

The Family Mediation Service in Ireland has pioneered hugely successful approaches to mediation. Earlier this year, GEMME Ireland and the Family Mediation Service hosted an innovative mediation seminar.

The event was a ‘fish-bowl’ demonstration by experienced practising mediators in the Family Mediation Service on how mediation works in high-conflict cases. Attendees had opportunities to discuss ways of de-escalating conflict, and various contexts in which mediation would not be an appropriate dispute-resolution approach.

Commercial mediation seminar

Increasingly, mediation is being used to resolve commercial disputes. GEMME Ireland recently hosted a very successful live-streamed commercial mediation event: ‘Settling commercial disputes: the role of the judge and the role of the mediator’.

Keynote speakers included Mr Justice David Barniville (Court of Appeal) and Mr Paul Gilligan (retired judge of the Court of Appeal). The event was moderated by Helen Kilroy (partner in the litigation and dispute-resolution department of McCann FitzGerald LLP).

Mr Justice Barniville outlined that judges of the Commercial Court had the benefit of being able to read case papers in advance of the hearing, thereby allowing them to consider if mediation would be an appropriate course of action in the particular case.

Interestingly, a little at variance with what Sir Vos had outlined, Mr Justice Barnville believed that timing was particularly important in determining the success or otherwise of a mediation intervention. He emphasised the importance of discerning when it would be appropriate and beneficial to parties to introduce mediation.

Mr Justice Paul Gilligan reminded the audience of a favourable success rate when mediation is skilfully introduced.

The benefits of mediation were explored by both speakers, drawing from their professional experience and legal expertise. The autonomy of the parties to choose their mediator and the venue for mediation was seen as a ‘strong positive’, as opposed to court proceedings, where parties do not have a choice of judge or venue.

The move towards mandatory mediation in some jurisdictions was viewed as problematic, particularly in the context of imposing additional costs on parties and where the voluntary nature of mediation was no longer a reality. However, mandatory information meetings in relation to mediation were considered by both speakers to be useful and beneficial.

Restorative justice seminar

GEMME Ireland has highlighted the use of mediation in the criminal-law contexts through the restorative justice (RJ) process. The branch hosted an online discussion on the use of RJ in Spain and Ireland.

The theme – ‘Bringing restorative justice home’ – was explored by Judge Patricia McNamara (District Court), Dr Ian Marder (assistant professor in criminology, Maynooth University) and Prof Helena Soleto Muñoz (Criminal and Procedural Law Department, University Carlos 111 Madrid, and a Council of Europe expert on restorative justice and ADR).

Judge McNamara outlined the orientation of restorative justice approaches in Ireland as one that emphasises efforts to repair the harm caused by the offender and to encourage desistance from future offending through the voluntary meeting of the victim/community and the offender.

She spoke of the range of RJ services and programmes provided in Ireland through a collaboration of stakeholders in the criminal justice system, for example, the Probation Service and the Garda Síochána.

Prof Soleto Muñoz indicated that RJ approaches are more successful in Spain with first offenders who have good networks of support around them. On the question of sentencing and the role of RJ, it would seem also that both jurisdictions – Spain and Ireland – have similar viewpoints: the matter depends on the offender, the offence, and on the voice of the victim.

Dr Marder suggested that virtually all cases could be assessed for suitability for RJ approaches. He proposed that RJ should be available at all stages of the criminal-justice process, but that the suitability of cases for RJ ought to be decided on a case-by-case basis. He also advocated for increasing the levels of awareness of mediation and, in the process, would assist the successful rollout of RJ.

GEMME Ireland hopes that, by increasing awareness of mediation through its events and activities, it can assist in this objective.

Absolute GEMME

It seems clear that lawyers should embrace mediation, as it considerably reduces the stress associated with litigation – not only for themselves, but also their clients. Furthermore, the sense of satisfaction that comes from contributing to a successful mediated outcome far outweighs the trials and tribulations associated with having ‘lost’ the case in litigation, or having only achieved partial success.

It is important to remember that good mediated outcomes are usually achieved with the advice and input from the lawyers of the respective parties. It is also important to remember that the primary role of the mediator is to act as a facilitator, not as an advisor. Accordingly, while many mediators may have legal qualifications, this is not a requirement to be a good mediator.

Nevertheless, a mediation without the benefit of good legal advice is unlikely to succeed, because the parties will not have the requisite knowledge to make an informed decision in respect of the final mediated agreement.

Indeed, it is fair to say that judges are often assiduous when ruling on mediated agreements, to ensure that each of the parties have had independent advice and are fully cognisant of the agreement and its effects. This ensures an equality of bargaining power, which is essential to the preservation of the integrity of the mediation.

The growth of GEMME Ireland, therefore, marks an exciting time in the area of dispute resolution and, in particular, the development and rollout of mediation. Anyone who wishes to become an associate member of GEMME Ireland may apply for associate membership and enjoy benefits that include free access to seminar events hosted by the branch. Contact GEMME Ireland at info@gemmeireland.ie.

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Judge Keenan Johnson and Dr Bernadette Ní Áingléis
Judge Keenan Johnson is a judge of the Circuit Court and an executive committee member of GEMME Ireland. Dr Bernadette Ní Áingléis is an education advisor, an accredited mediator, and administrator of GEMME Ireland.