Law Reform Commission Marks Seismic Shift On Resolution
Lawyers involved may be enjoying greater job satisfaction, if reduced income expectations, writes Fergus Armstrong

Mediation/conciliation could cease to be the poor relation and become the alternative medicine for healing division. The busy lawyer reading the report may skip to the end, where the commission has presented the legislature with a draft statute to implement its recommendations.

Before I refer to this, let us just remind ourselves there is nothing exotic about mediation or conciliation. This kind of activity arises all the time in various walks of life, in communities and in families, such as where a parent tries to bring warring siblings together.

In societies other than our own, there are long standing traditions that allow for the intervention of a friendly third party or community elder.

So a question first arises: why is the law poking its nose into what looks like a natural and healthy aspect of human affairs, with the risk of unnecessary regulation that inhibits such activity? If we review the proposals with this question in mind, an interesting revelation emerges.

First, note that the proposed law does not refer to all mediation/conciliation, but only to cases of disputes that “could give rise to civil liability”.

Aside from specific provisions (dealing with family issues, personal injuries and cross-Border disputes) I read the proposals as having three main planks:

You cannot go to law unless you have signed a certificate stating that mediation/conciliation has been considered, and your solicitor must sign the certificate stating that he has advised you to consider mediation. This means you don’t find yourself in litigation without having been obliged to stop and think;

A court may in the course of legal proceedings invite the parties to consider using mediation/conciliation, and – a more dramatic innovation – may take into account what it considers an unreasonable refusal to consider that option when awarding costs;

Mediation processes are given a specific confidentiality privilege, against disclosure in court of what went on or was said in the mediation.

Notice a common feature of these three provisions – in each case the legal system is legislating against its own processes. The law is turning upon itself.

There are analogies that might be drawn from other fields of activity where heavy professional specialisation has taken place. There was a time when a lawyer was expected to handle a great variety of problems that arose for clients. Now the specialisations are narrowly defined. One such specialisation is that of “the litigator” and recent years have seen enormous growth in litigation activity, where the imperative is to fight and win.

But as has happened in other fields, intensive methods produce their own problems. We have, perhaps, a legal equivalent in the courts of MRSA in the hospitals. The fighting, adversarial model is bringing its own problems (unacceptable cost, entrenched hostilities, etc). The antibiotic inhibits natural healing, and the adversarial model inhibits resolution of the conflict. So the Law Reform Commission advocates a return to more holistic methods.

Lawyers who are prepared to undergo a personal makeover (and it is not simply about attending a training course in mediation; a new mindset is needed) may look forward perhaps to greater job satisfaction as compensation for reduced income expectations.

The seismic shift that could happen in the wake of the commission’s recommendations would have profound implications for the legal profession, its organisation and methods. In part, this development is being influenced by a convergence with other human sciences apart from the legal one. We know much more than formerly about human psychology and the kinds of approaches that are useful to facilitate people caught in conflict.

One key aspect of that is recognition of personal autonomy, encouraging people in dispute to believe they can solve their own problems and in a manner that suits their interests, as opposed to handing the issue over to professionals. And it must in principle be right that justice that is handed down can never match the potential that the parties themselves have for fashioning solutions that pertain to their particular circumstances.

Staying with the issue of party autonomy, the commission has sought to preserve a distinction between conciliation, where the third party “actively assists” the parties in reaching for settlement, and may make a recommendation to them for that purpose (which they may accept or reject), and what may be thought of as plain vanilla mediation, as to which there is a rather scary prohibition: It is provided that “a mediator may not, at any stage in the mediation process, make a proposal to the parties to resolve the dispute” (although they are allowed to turn a mediation into a conciliation).

I suggest the distinction cannot be expected to work as a strict legal matter. In practice, most mediators will toss an idea or two into the mix even if they will resist a request to offer a recommendation on the dispute overall.

Mediators and conciliators are to be subject to a statutory code of practice, and here the commission seems to have got the balance right, even if light touch regulation is not in fashion.

Fergus Armstrong is a lawyer turned mediator