Michael Williams is a retired solicitor; he practiced as a lawyer for 30 years. He left the firm at which he was a partner to become a Professional Mediator. He has served on the Board of Academy of Family Mediators, and chaired its Ethics Committee. He is also the author of Serving the People?: The Need for Reform in the Irish Legal System (Liffey Press; 2013), which argues for major reform in the Irish legal system, and he has contributed to many other media outlets on Court reform.
Most people who have tried mediation and found it worked for them particularly liked two aspects of the process. They were free to say whatever they wanted to, knowing that what was said in the mediation room stayed there, and they knew that if they found it uncomfortable they could leave. That is why conscientious mediators, who aspire to serve their clients well, lay down those two ground rules at the beginning of the process: that nobody is obliged to stay in mediation if they don’t want to, and that the mediator will keep secret anything said to him during the process. That is to say, it is voluntary and that it is confidential. The Law Reform Commission stressed these two characteristics in the Report on Mediation it published in 2010.
So it is disconcerting to read how the Multi-Unit Developments Act 2011 addresses disputes within apartment blocks. Such a dispute may be litigated in the Circuit Court and Section 27 provides that a Judge may direct the parties to go to mediation – or, rather, to what the Act calls mediation. If they cannot agree on a mediator, the judge will appoint one, who may (at least, in theory – see below) be a genuine mediator, or may be a barrister or a solicitor with no mediation training or experience. If they fail to agree a time and place to meet their “mediator”, the judge will decide that, too. The Act contemplates a single make-or-break mediation session, though most mediators have learned that clients who have been at each other’s throats for months often need time to make peace, and spreading the process over a few sessions may be the best way to serve them.
Worse follows. The “mediator” (the inverted commas are justified, as we shall see) is required to report to the judge. If the parties (who are the mediator’s clients’) fail to agree during their single session, the “mediator” must report accordingly to the judge. He is also required to say which of his clients he blames for their failure to agree. The judge made then penalise that client.
This resembles the approach of lawyers to settling litigation: “bring the clients to the door of the Court and knock their heads together to make them agree”. It does not seem the ideal way to bring about a lasting peace between warring neighbours.
Though it is labelled “mediation”, it is obviously not confidential. Nor is it voluntary. It lacks the two characteristics that make mediation such a constructive way of resolving conflict, that users of mediation have singled out for special praise, and that conscientious mediators have adopted as a core ethical obligation. Indeed, I question whether any ethically-grounded mediator would accept an appointment under the Act. When I worked as a mediator, I would not have, because it would have required me to pretend to be a mediator, while acting in a way that was inconsistent with the ethical rules of my calling. And yet, the Government has insisted on labelling this process “mediation”, and the Dáil and Seanad have acquiesced.
The present Minister for Justice did not introduce the MUD Act, but she has said she stands over its provisions, and does not propose to amend them. She has also said that she intends to introduce a comprehensive Mediation Bill in 2015, to promote mediation…The heads of that Bill are available, and they provide that a “mediation” performed under the MUD Act need not conform to the provisions the Minister wants to introduce governing mediation generally. That is, it will continue to be neither confidential nor voluntary, but will still be called “mediation”. As someone who is idealistic – perhaps too much so – about what mediation can do both for its clients and its practitioners, I am discouraged by how it is treated in this legislation.
I also view the heads of the Mediation Bill with more alarm than joy. But that is another and longer story.