I thank the Chairman and members for inviting us here today. We are pleased to have an opportunity to discuss issues with members and answer their questions. As members will be aware, we have provided a 17-page submission which sets out our views on the generality of mediation, what it is, how it works and its fundamental principles. Later on in the submission we deal with the heads of the Bill and we would be happy to answer questions. I am accompanied by Mr. Gerry Rooney, the president elect, who will take over from me as president of the institute in November. We have no idea who will answer the questions. If they get too difficult I might pass them to my left.
The Mediators' Institute of Ireland is a unique body in mediation terms, not only in this country, but elsewhere. As an institute we welcome mediators from all backgrounds and, if I might say, none. Our mediators practise across the whole range of mediation. That is different from how mediation services operate in England and what is turning out to be the case in Northern Ireland. In those jurisdictions, for example, they tend to have a civil and commercial mediation group, and then they might have a separate group dealing with family issues and a separate group dealing with restorative justice and perhaps workplace issues. The Mediators' Institute of Ireland was founded about 20 years ago and at that time, it was founded to work with separating couples and family mediation, but as it grew during the past 12 years it opened up more to workplace issues and to commercial and civil cases, which in mediation terms is usually referred to as commercial.
I took over as president about seven years ago and at that time we decided to have a root and branch review of how we could assure the quality of mediation and mediators. Mr. Rooney was involved very closely with me on this work because he had particular experience of accreditation of mediators and mediation training courses abroad as well what was on offer in Ireland. At all times we have tried to assure quality - quality assurance of both the training of mediators and continuous professional development, as is common with most professional organisations, quality of the actual practice of mediation, quality in regard to ethics and ethical issues, practice issues and quality in regard to independent regulation.
The way we have tried to bring about independent regulation is by best practice. In our disciplinary, complaints and appeals procedures, we have a panel of three people, of whom the chairperson and one of the other two members must not be a mediator. The third person on the panel is a mediator who will come from the speciality of mediation which is the subject matter of the complaint or disciplinary action. The standard mediation principles would be put to the complaints, disciplinary or appeals panel but the people deciding on the issue would be entirely independent of both the Meditators' Institute of Ireland and of the mediators themselves.
We are a voluntary body under the charities legislation. None of the executive directors or council members is entitled directly or indirectly to any finances. We have a part-time administrator who works five days a week, mornings only, though as the authors of our own success, we find that is not sufficient and we are now looking to see if we can expand.
Our funding comes purely from our membership subscriptions, our annual conference which we hold in November each year and any education courses or assessments that we run. We are entirely self-funding. We have almost 600 members. I would imagine by the end of this year that will rise to 700. Although I did not have a chance to check the precise number, about 90% are qualified mediators and most of them have an annual practising certificate. They have passed our 60 hours of training courses, they have passed an assessment of skills and then each year they must apply for annual membership. To become a member, they must pay the renewal fee but in addition, they also have to show that they have participated in continuous professional development, CPD.
We are unique in professional organisations in that our CPD divides into three elements. The first is what one would expect, attendance at conferences or courses. The second element is the actual practise of mediation and I will make a note of that because there are not enough mediations to go around. Although some mediators have a number of mediations in train, many mediators have none. We are worried that a person might embark on mediation when he or she has not done so for perhaps two or three years. To get over the practice element, we run role plays as necessary.
The third element of CPD is that one must have reflective practice. It is not good enough simply to mediate; one must reflect on how it is one mediates, which includes sharing experiences with other practitioners and keeping up to date with best practice. We regularly conduct what we call sharing and learning groups comprising practitioners engaged in mediation work across the board, including commercial mediation, workplace mediation and mediation involving separating couples. There is no mediator from whom one cannot learn something. We are strongly of the view that mediators, in order to serve the parties for whom they are providing a mediation service, must not keep themselves in silos. The issues that evolve during a mediation may cross the boundaries of a particular type of mediation to encompass intergenerational mediation, workplace issues and commercial matters. The mediator must not only be properly trained and accredited but must also have awareness across a range of disciplines.
The Mediators' Institute of Ireland is different from other mediation bodies in that we serve as the professional association of mediators. I am a member of the council of the Irish Commercial Mediation Association which, like the MII, is voluntary, but its role is specifically to promote mediation in commercial disputes. Mediators must sign up to a code of ethics and practice on an annual basis in order to have their practising certificate renewed. In other words, practitioners must declare that they will be subject in their work to the code of ethics and practice. Equally, if there is a complaint or a disciplinary issue against a practitioner, he or she will be bound by that declaration. The final requirement for a practising certificate is that one has professional indemnity insurance.
One of the difficulties mediators face in the course of their work is that there is currently no regulation of mediation practice. As such, we are absolutely delighted at the prospect of this legislation. In the absence of regulation, any person, even without training, can set up as a mediator. Depending on the type of mediation involved, one often deals with vulnerable people who are under enormous stress. They require and are entitled to be dealt with by practitioners who are properly trained and abreast of the most up-to-date methods and practices. Moreover, where a mediator makes a mess of a case or behaves inappropriately, customers must have recourse to an independent body that will call the practitioner to account. The volume of complaints to the Mediators' Institute of Ireland is, unfortunately, rising. As such, there is a pressing necessity to have a process in place by which people can be called to account for inappropriate behaviour. Whether a complaint is justified is for the independent panel to decide.
Mediation is an incredibly difficult concept to explain. For instance, colleagues and I are frequently asked whether we meditate, to which one can only reply that some of us do and others do not. The other major difficulty is that mediation tends to get lumped into alternative dispute resolution. While the latter is indeed an alternative to litigation, some of the processes involved are almost identical to litigation. To clarify, litigation and arbitration are two sides of the same coin. Whereas one might describe arbitration as an alternative, it is basically the same as litigation, being highly process-driven, focused on looking at the past and seeking to persuade an independent third party to adjudicate as to which party to a dispute is right. The difference between litigation and arbitration is that in the case of the former, the adjudicator is a judge who may have no background in the subject matter of the dispute, whereas in arbitration, the arbitrator is generally called on the basis that he or she has knowledge of the subject matter. That is seen a good deal in construction cases, for example, where arbitration is quite prevalent and an arbitrator is chosen on the basis of his or her relevant expertise.
The focus in mediation is less on what happened in the past, and we are not concerned with issuing judgments. In short, it is not an adjudicative process and we do not pronounce who is right and who is wrong. That is not to say that the past is not important in mediating a dispute; in fact, it is vital in terms of building the context of the mediation. There is often a cathartic effect for those in mediation in being able to tell their story - what happened to them, when it happened, and the consequences for them of the other party's actions. In some commercial disputes, in particular, it could be the first time the two parties have spoken to each other in a very long time. For instance, I took part in a commercial mediation recently where the dispute arose five years ago, was handed off to the two sets of lawyers and the two parties had not spoken directly to each other, or listened to each other, in all that time. The story-telling aspect is very important in order to ascertain the context of the dispute and for everybody to understand what happened and the issues arising from it. At the end of that story-telling exercise, no blame is apportioned and no adjudication is made. Instead, the focus is on what happens next and how we move forward. It is in this regard that mediation can prove particularly effective, the fundamental principle being that the mediator empowers the parties to begin designing and developing their own solution. They are, after all, the experts in the dispute. Parties may come to the mediation process, particularly in a commercial mediation, with five sets of lever arch files on each side, but it is the individuals themselves who know what has gone on and can look at all the possibilities for resolution. The flexibility in the process allows them to design their own solution.
