Irish Legal News reports:
Divorcing couples in England will be provided with £500 mediation vouchers to help them resolve disputes away from court.
The scheme was originally launched on a trial basis last March and has already seen 8,400 vouchers issued to divorcing couples. An additional £5.4 million in funding announced yesterday will provide around 10,200 additional vouchers.
Survey data of the first 2,800 completed cases using the vouchers revealed that 65 per cent reached either a whole or partial agreement away from court, while a further three percent only attended court to formalise their agreement. The research also showed 50 percent of participants would not have attempted mediation without the financial incentive offered by the scheme.
Dominic Raab, the Lord Chancellor and Secretary of State for Justice, said: “We are investing over £5 million this year alone to help more families to resolve their disputes without the stress and trauma of lengthy courtroom battles.
“Mediation protects children, by removing the bitterness of parental disputes from the amplifying effect of a courtroom – and allows the family courts to focus on adjudicating cases with serious safeguarding concerns, including domestic abuse.”
Mediation in Ireland, Dr Sinéad Conneely BL:
Following the enactment of the 2008 EU Mediation Directive, the Mediation Act 2017 took a long time to make its way into law; over 10 years in fact. That said, it is a very important piece of legislation for civil justice in Ireland. It applies to the majority of civil disputes with only a small number (set out in S.3 of the 2017 Act) being outside the remit of the legislation. Mediation offers disputants lower costs, a typically faster resolution process, and a less adversarial environment in which a positive outcome can be nurtured. Mediation is not just an alternative to litigation but qualitatively different for the service user. It does not supplant litigation where there are complex legal matters that need judicial examination, something which Irish courts have already ruled in Atlantic Shellfish [2015] IECA 283.
The 2017 Act provides support necessary for a reliable and healthy mediation sector and goes a long way towards establishing mediation as a distinct, stable and independent profession. It helps those who attend mediation to understand the intersections between litigation and mediation and allows them to keep their autonomy throughout the process. The Act aims to encourage parties to a dispute to self-determine an outcome, with the aid of a mediator, as opposed to seeking a solution from the courts which in turn frees up valuable court time for other legal issues to be addressed; a theme at the heart of the 2008 Directive.
The Act defines mediation as having three main elements; The process is voluntary, confidential and facilitative. Section 2(1)(o) of the 2017 Act provides definitions for mediation, a mediator, and defines the output of mediation as a ‘mediation settlement’. Section 7 describes the commencement of mediation as the point when the ‘Agreement to Mediate’ is signed. Section 8 sets out the role of the mediator and section 9 enables the Minister to approve code(s) of practice. Section 10 clearly sets out what mediation confidentiality is and when it can be lifted. Section 11 is noteworthy in that it codifies self-determination, empowering the parties to decide when they have reached an agreement and whether they wish that agreement to be legally enforceable between them. Section 14 requires that, prior to issuing court proceedings, practicing solicitors must advise clients to consider the benefits of mediation as a means of resolving the dispute and must also provide the names and addresses of mediation providers.
The fact that the Mediation Act empowers disputants to settle their issues and enter a (potentially) legally binding agreement themselves, and the fact that the majority of such disputes tend to be divorcing couples or otherwise family law matters, has led to a degree of tension between the solicitor and mediator professions. In May 2020 the Law Society of Ireland published an address to the profession which sought to distinguish family mediation from any other form of mediation; a distinction not contained in the 2017 Act. The publication stated: “…and practitioners will be aware that best practice for qualified mediators is that agreements to mediate separating couples’ disputes shall expressly provide that any agreement reached at mediation is not legally binding…and that mediation settlements of separating couples disputes are never intended to be binding…”.
The 2017 Act recognises that separating couples have always been able to negotiate the terms of a legally-binding separation agreement with the assistance of a mediator and section 11 affirms this right, placing the choice in the hands of the parties and not the mediators or the lawyers.
Following the Covid-19 pandemic of 2020, many aspects of the Courts system struggled to get up and running in an online environment. However, mediators were found to have been capable of making the transition almost instantly with some practitioners even creating break-out rooms called 'the hallway' or 'the hotel car-park'; locations often familiar to users of mediation services where private conversations can be had regarding the issues under mediation. Clients embraced this new way of meeting and negotiating, quickly realising that they could achieve legal certainty with legally binding agreements, in a timely and cost-effective manner.
Some of those left behind were mediation practitioners with the same struggles as service users and suspicions that this new way of working was “less than” their familiar practice. Yet the 2017 Act is agnostic about whether an in-person or online forum is used for mediation. Through economic necessity, Online Dispute Resolution has taken flight and this new opportunity brings with it challenges that the mediation profession must meet to ensure equality and quality of access for all.
The Act demands a new kind of justice system with mediation at its heart. However, this can only be achieved through dialogue between mediators and legal professionals, clarifying roles and respecting boundaries. The Act envisages that there will be collaboration between solicitors and mediators, that their roles will complement each other for the benefit of the users. The sympathetic and harmonious interworking of professionals with contrasting skills yields something greater than can be achieved apart; ideally an understanding that justice and fairness has been achieved by the parties themselves without the need for external adjudication. Mediators shoulder more of the disputants’ emotional burden and solicitors provide legal advice in respect of their clients’ rights, particularly important where the clients wish to have a legally binding outcome, whatever the subject matter of the dispute.
Mediation in Ireland is now firmly moving into the mainstream; however, there is a lot of work to be done to encourage greater uptake, and that will come when the public have a better understanding of what mediation is and what they can achieve in that forum. Regulation of Mediation must be driven by the best interests of the service user, promoting diverse and skilled professional practice that reduces conflict in our workplaces, communities and homes.