The Irish Commercial Mediation Association, formed in 2003, is an organisation that operates solely for the purpose of growing the awareness of and use of mediation. It is a voluntary, non-profit organisation and over the years we have worked closely with many other organisations in mediation, including some mentioned previously.
Two of the key pieces of work we believe we have done in the past ten years are, first, a survey in regard to the use of commercial mediation, on which my presentation is clearly focused, and, second, a short film we produced recently, which is very much an education tool. We believe anybody who has an interest in mediation, whether members of the committee, parties setting out into litigation or advisers, would benefit from watching this short film. It is easy to watch, is in a modern, drama-documentary style, and is there for all to see on our website.
We undertook a survey in 2009 from which we learned a great deal. The survey was of approximately 5,000 professional firms throughout the country, which we believed to be the best source on mediation. From that survey, we learned that almost 50% of participants saw mediation as the preferred route to dispute resolution. We realised the mediation that was taking place at that point in time was highly successful, with a success rate in excess of 70%, so it is a good space in which to be.
The reasons mediation is successful and is sought after can be synopsised into three points: first, it saves money for the parties; second, it saves the time and stress for the parties that comes with litigation; and third, it saves important business relationships. This is central to many of our discussions around the flexibility mediation as a process offers. We must get home this point that the flexibility offered by mediation is important.
Equipped with this information, we considered the key objective of the enactment of this Bill of creating a wider use of mediation across the community, whether it be family, business or other mediation. To achieve this, the Bill needs to be embraced, in the first instance, by what we consider the principle gatekeepers of mediation, namely, the legal community, so it is important that Bills and Acts are drafted in such a way. The second group is the users, which from our point of view is the business community, including the public sector and Government as well as private business and so forth.
The approach we take to this is very important. The sledgehammer approach through tough legislation will not work with mediation. We have heard it said throughout Europe that we should have statute-encouraged or court-encouraged mediation, and it is important to keep that philosophy in mind. If we do that, we have a better chance of protecting in legislation what we consider to be the core values of mediation. Those core values, some of which will be discussed today, include, first, the voluntary nature and, second, the confidentiality of mediation. We want to make a strong point on the need to protect confidentiality in order that the parties, whether family, community, workplace or commercial, when sitting in a room, know they are in a confidential place where the mediator can work with them to glean information in a confidential manner - confidential as between the parties as well as the fact it is a confidential process - in order to get traction to move them closer to resolving the dispute. That is very important.
The third value is self-determination. Anything contained in this legislation has to be about providing the parties with their own opportunity to resolve their dispute. The critical point, as we all know, is that the best people to resolve a dispute are the parties themselves, no matter what. If they cannot achieve that, the next step is for a mediator to facilitate or work with them to achieve it. The next steps are litigation or arbitration, which have their own difficulties, as we know.
The fourth core value is the capacity to allow flexible outcomes. We have heard from judges that courts can only rule on what they see before them. We want mediation in place to allow the flexibility for parties to create their own answers, which is particularly important in difficult economic times.
The last point concerns the profession of mediation and how the mediation resource can evolve in this country through firms and organisations that will deliver back and serve this legislation when it comes to pass. We need to have appropriately qualified and regulated mediators and we need a code of ethics and practice so everybody understands the work a mediator does. While we want professionalism from mediators, as has been alluded to, we would like to have walk-away status for the mediator. That is unusual when one is talking about a profession in that we expect a professional to stand up and be accountable for the advice he or she has given. A mediator does not give advice; it is not an advisory capacity. Therefore, we do not need to start applying restrictions on the mediator or to put the mediator in a position that does anything other than facilitate the work of the mediator between the parties. The objective of the exercise is to get the parties to come to their own solution.
We have proposed a number of changes to the legislation, although I do not propose to go through them all as I am sure we will have plenty of time for discussion. Within those, we would like to see mediation described as a structured process, which it is, although it sometimes does not have that name or tag. With regard to lawyers coming forward and presenting to courts, we would like to see this opened up more in order that it is not just at the outset of litigation but can be considered at all stages. With regard to confidentiality and the work of the mediator, we do not like the sense that the mediator would be seen to be giving legal advice or even assessing whether a party has a capacity to be in mediation. There are a number of other points but I will not go over my time. I thank members for their attention.
