Some thoughts about Mediation from Northern Ireland, Europe and the Commonwealth
The Commonwealth Lawyers Association held its biennial Conference in Livingstone, Zambia in April. Among the varied subjects under discussion was Mediation across the Commonwealth. At this Conference I was appointed as President of the Commonwealth Lawyers Association. I wish during my term to contribute to the development of mediation in commonwealth and other jurisdictions.
It is noteworthy how many colleagues are now familiar with mediation. That situation has changed over the past few years. There is an opportunity to build on this increased activity. Many cases which would otherwise be litigated and then settled in the course of litigation can be resolved through early mediation. Often it is not the legal issues which are the problem – but the interpersonal relationships and the history.
As a designated UK expert, I contributed to the publication of the combined bars of Europe (the CCBE) entitled Guide to Mediation for Lawyers. More recently the CCBE has worked up a guide to training of lawyers in mediation and about the mediation process. These documents should be absorbed by the legal professions in Europe the commonwealth and wherever there are lawyers seeking to use the best options for their clients in advising and guiding them about their cases.
A significant recent development concerning mediation in Northern Ireland is the judgement of McCloskey J in a Judicial Review case: Edmunds v Legal Services Commission 2019 022063/01. In this case the Judge decided that the LSC (which administers the provision of legal aid in Northern Ireland) erred in law. He found the LSC had failed to recognise and or exercise in a lawful manner the discretion conferred on it by the legislation to authorise public funding for intra-litigation ADR in civil cases other than family cases.
In the course of his Judgement Mr Justice McCloskey reviewed Practice Directions, the Rules of Court and the Civil Justice Review in Northern Ireland completed by Sir John Gillen. He noted that mediation “has for some time been a settled feature of the civil litigation landscape in Northern Ireland”. It was not something “unusual” that fell outside the scope of civil legal aid.
Practitioners in Northern Ireland will now review cases where they have obtained and are acting under a civil legal aid certificate for extant civil proceedings. They should consider, in the light of the Edmunds decision, if it is in the interests of their client to use mediation in their cases and request legal aid to cover the related costs – which of course must be proportionate and reasonable. This is a very significant development and should result in an increase in the use of mediation for legally aided parties where it is in their interests to explore resolution.
In the course of my involvement with the Commonwealth Lawyers Association I was sent an interesting judgement of the High Court in Trinidad and Tobago. Mr Justice Vasheist Kokaram in this case (Moraldo) had to consider whether or not a binding agreement had in fact been made during a mediation. He reviewed many of the key decisions in England and Wales about mediation and made some observations about mediation. They are worth sharing:
“An attractive feature of mediation is its informality, its fluid shape, its control by consensus of the parties and the guiding but not determining hand of the mediator. The informality of mediations should not be underestimated by litigants nor their attorney at law. Parties and their attorneys must be properly prepared for their mediation. They must prepare in advance for all possible options to resolve a claim, be prepared to negotiate in good faith and to share all necessary information to obtain what they will consider the best possible result in the circumstances of the uncertainty, high stakes and risks of litigation. It is not often that a Court will set aside an agreement which was obtained in a mediation. These mediation agreements must be treated with the respect it deserves as an expression of the free will of the parties.”
He continued “The key difference in this consensual problem-solving model from adversarialism in litigation is the focus on underlying interests of disputants and not on positions based on rights. As in some cases mediation is seen as a superior form of dispute resolution to litigation, no effort must be spared by all practitioners in the profession to ensure the quality of the process.”
The quality of the process of mediation must include adherence to internationally accepted process norms. The mediator should prepare carefully. She or he should engage with the parties in advance and explain the process. The date for the mediation should not contain distractions for the parties or solicitors or Counsel. The mediator must be focussed and committed to the cause of seeking a solution which works for the parties. Agreements made should be respected and upheld by the courts.
On 20th December 2018 the UN Convention on International Settlement Agreements resulting from Mediation was adopted. It is known as the Singapore Declaration on Mediation and will be signed at a ceremony in August in Singapore. My position as President of the Commonwealth Lawyers Association has resulted in an invitation to the signing ceremony.
Mediation is here to stay and as McCloskey J noted in the Edmunds case quoting from the well-known judgement of Woolf CJ in Cowl v Plymouth City Council  EWCA Civ 1935; “insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible”.
Brian Speers Solicitor, Mediator
President, Commonwealth Lawyers Association