Not every dispute fits into a mediation framework

The Mediation Act 2017 was commenced on 1 January 2018 to a certain amount of fanfare followed by a certain dignified silence from practitioners, writes solicitor Micheál O’Dowd.

This stillness has been punctuated recently by the decision of Byrne v Arnold and that of V Media Doo & Anor v Techads Media Limited.

Both decisions caution that section 14 of the Mediation Act has serious consequences for solicitors, but the similarities seem to end there.

Both decisions caution that section 14 of the Mediation Act has serious consequences for solicitors, but the similarities seem to end there.

V Media in particular underscores the pro-mediation language used in the act.

Must a solicitor recommend their client mediate at all costs?

Differing interpretations

Section 14 is a curious provision.

Its overriding hallmark must be the liberal use by the Oireachtas of that well-known imperative “shall”.

When it comes to mediation both practitioners and the courts are treated in an almost equally servient manner.  

They must, and they shall, encourage mediation.

In Byrne v Arnold, Kennedy J noted that the Oireachtas has taken the ‘extraordinary’ step of interfering in the lawyer/client relationship by dictating the very nature of the advice which must be given to a client.

Kennedy J’s comments are worth reproducing here:

“Section 14 does not oblige plaintiffs to mediate. Nor does it oblige their lawyers to tell them to do so. In some cases, litigation may be deemed necessary to protect the client’s position.

“Section 14 does not prevent solicitors from warning the client if they consider that mediation may be inappropriate, premature or unlikely to succeed in the particular circumstances.

“However, a plaintiff’s solicitor must advise the client to consider mediation. The statutory duty is to explain the option, facilitating an informed decision by the client, allowing them to consider alternatives to litigation (since ultimately it is the client who must decide how to proceed).

“While the solicitor must inform the client of the possibility of mediation and its benefits as mandated by section 14, the solicitor is entitled (and, in my view, obliged) to supplement that advice where appropriate with any countervailing views as to the feasibility of mediation in the circumstances.

“Risks or downsides must also be considered. The client’s strategy should assess the potential advantages and disadvantages of its options, including negotiating or mediating (and the timing of any initiative). Clients may conclude that mediation is not appropriate in particular circumstances or at particular points. Section 14 facilitates an informed choice.

Literal interpretation

Twomey J in V Media took a more literal interpretation of the legislation and noted that it is not enough for a solicitor to advise on the fact that mediation exists as an option (and perhaps even an option worth considering), but it requires the solicitor to:

… advise the client on the ‘advantages of resolving the dispute otherwise than by way of the proposed proceedings’ (emphasis added) and on the ‘benefits’ of mediation. Solicitors are being asked to act in a way, which it could be argued, is contrary to the solicitor’s financial interest. 

"This is because the Oireachtas has set solicitors the onerous task of advising plaintiffs on the benefits of mediation, which must include the very considerable financial benefits of mediating, rather than litigating. Thus, a solicitor would, it seems, be required to explain to the client that the legal fees for a successful mediation (say over a month or two) are likely to be a fraction of the legal fees generated over say four years of litigation (i.e. issuing various proceedings, making/defending pre-trial applications, discovery, undergoing a trial and then an appeal.)

"This is particularly so since High Court legal costs have been described as ‘‘prohibitive’ and so a considerable financial negative for the client, albeit that prohibitive fees might be regarded as a financial positive for recipient of those fees – the lawyers.

Measured

While the court’s conclusion in Byrne v Arnold seems sensible and measured, that in V Media seems closer to the wording of the Mediation Act 2017, and the intention of the Oireachtas.

It also seems to be in lockstep with the actions of the Oireachtas in recent years – to fit every conceivable dispute into a mediation framework like the demented Procrustes.

Whether it is the PIRB, WRC, and the PRTB or another acronym, a colourful invitation to mediate will be found.  

Obligations on solicitors

While the court in V Media may well have captured the zeitgeist of the Oireachtas, to suggest that a solicitor will always, or even occasionally, be guided by what is in the practitioner’s own financial interest rather than their client’s is, with respect to the judge, a slight on the profession.

Taken at its height it seems a practitioner must advise a client of:

• The ‘advantages’ of resolving the dispute, otherwise than by litigating,
• The ‘benefits of mediation’,
• The confidentiality of mediation agreements,
• The enforceability of mediation agreements,
• The fact that a Mediation Declaration must accompany the proceedings, and
• The fact a court must adjourn the hearing, if a Mediation Declaration does not accompany the proceedings.

Whether the court’s comments in V Media expand on the statutory requirement and oblige a solicitor to explain that litigation is more “cost effective” will be left to the reader to determine.

Finally, section 14(d) is worthy of an (dis)honourable mention.

This takes the concept of the Oireachtas directing how clients should be advised by solicitors a step further into the twilight zone and propose a practitioner to advise their client that mediation “may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk” … this is surely a candidate for one of the more obtuse utterances on the Statute Book!

Mediation has its uses

There is no doubt but that there are some situations where mediation offers an elegant and cost-effective means to resolve certain disputes. There are many commercial disputes and familial disputes that can benefit from a facilitated settlement.

Many cases get lost in the weeds where common sense meditation would crystallise the issues.

In a family law context, there is much to recommend mediation in settling aspects of any dispute concerning minor children.

However, mediation is only one tool in the dispute-resolution toolbox, and if it is, it’s more akin to a can of WD40 than a precision instrument.

What is fairness – is mediation fair?

Laura Nader, one of the more celebrated anthropologists of our time, writing in the Yale Law Journal noted that: “the fundamental problem that constrains the performance of alternative complaints mechanisms today derives from their inability to compensate adequate for the ineffective bargaining position of the individual who confronts large corporations and government bureaucracies. […] Disputes between people of unequal power are unlikely to be settled fairly by mediation or arbitration unless the force of law is available as a last resort.”

Comparable status

Again, Richard Delgado, one of the more highly regarded legal academics of our time, argued that forms of alternative dispute resolution (ADR) such as mediation should be reserved for disputes in which parties of comparable status and power confront each other.

His view was that when confronting opponents of higher status or power, minorities would be well advised to opt for formal adjudication and should not be forced by the courts into informal proceedings.

Thus, while mediation is in most circumstances likely to be procedurally fair, there is little guarantee ever that a solicitor can assure a client of outcome fairness; or ‘justice’ as it is more commonly known.

Some authors have argued that the fairness of mediated agreements is an issue for the parties to decide, that it is “justice from below” rather than “justice from above” as one might get from the courts.

For others, any mediated outcome agreed upon by the parties may be considered a just outcome.

Again (and a more compelling proposal) is that “[t]he benchmark for evaluating fairness is whether the agreement approximates or improves upon the probable adjudicated outcome”.

Mediation in personal injuries

One of the more recent dalliances with mediation by the Oireachtas is Chapter 1A of the Personal Injuries Assessment Board Act 2003 which was introduced by the Personal Injuries Resolution Board Act 2022.

It introduces “a confidential, facilitative, and voluntary process in which parties to a relevant claim, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the relevant claim”.

The role of the mediator here is instructive, and the legislation states he or she shall inquire fully into each relevant aspect of the relevant claim concerned, provide to, and receive from, each party such information as is appropriate, and generally make such suggestions to each party and take such other actions as he or she considers appropriate.

Considering the comments of Nader above, how does an injured person with no legal or actuarial knowledge, no representation, and no expert input, mediate with a multinational insurance company with a veritable war chest of resources? The facile and correct answer is obviously “with great difficulty”.

Dark side of mediation

When one considers Chapter 1A, and Judge Twomey’s interpretation of the Mediation Act other less desirable aspects of mediation also need to be considered, such as:

• While meditation may be superior in saving “legal costs” for the entire dispute for someone, the duty of the practitioner is to advise one’s own client; not to worry about the costs of litigation on third parties. Costs follow the event for the most part in this jurisdiction, and successful litigation where most one’s costs are indemnified may be a better result for the client. Should a solicitor representing a medical negligence patient worry unduly about the costs that the State will incur in its inevitable full-throated defence?,

• While the Supreme Court in Kirwan v Connors did note that mediation could be considered a “step” in the proceedings to avoid any accusation of delay, mediation does not stop the clock for the purposes of the statute. In practice, we see plenty of anecdotal evidence of defendants slow walking a mediative process to run down the clock,

• In family law proceedings it is hard to contemplate advising a client to attempt to resolve anything only the lowest value of cases without there being full financial disclosure that only a robust case-progression or discovery process can bring,

• The value of “the force of law is available as a last resort” can never be undervalued. For lay people settling “on the steps of the court” implies a procedural inefficiency, while for lawyers the fact the case was falling to be decided one way or the other by a judge is what focused the minds of the parties. The appointment of more judges and the implementation of more thorough case management rules have made justice quicker, and by definition cheaper.

One tool of many (not even best one)

Mediation facilitates the resolution of disputes above all else.

The modern concept appears to forsake many of the concerns of the early jurists in the interests of getting an agreement.

For instance, there is little in the Personal Injuries Resolution Board Act 2022 to suggest the mediator must concern himself with getting a just or fair result.

The stated objective is “to have the claim resolved by agreement reached by the parties”.

Equal bargaining power

Where both parties are equal in terms of resources and bargaining power, mediation can be as resolutive a tool as penetrating oil on a rusty bolt.

Life being what it is, the reality is that it is rare as solicitors that we encounter such disputes.

Whether it is an insurance company, an emanation of the State, a multinational employer or even a domineering spouse, most disputes have a stronger and a weaker party.

Duty to advise client

As lawyers our duty is to advise our client what is best for them and their interests and to do this a whole box of legal tools is needed, the oldest, the best and most reliable being litigating through the courts.

In my opinion, mediation needs should not be elevated above its competency but used in a measured and sensible way.

It behoves solicitors along every organ of the state to ensure the weaker and more vulnerable are protected from its misuse.