Alternative energy

The Gazette plugs into the alternating current of the Law Society’s Alternative Dispute Resolution committee, with chair Liam Guidera

The chair of the Law Society’s Alternative Dispute Resolution Committee (ADR) is an advocate for the power of mediation.

Liam Guidera says that anyone who engages with the process emerges convinced of its transformative effects in the hands of an experienced practitioner.

A committee member for five years, Liam has seen exponential growth in both the use of – and interest in – the mediation process.

The committee has over 20 members and meets both in-person and remotely every four to six weeks, with many newcomers anxious to join – a mark of the growing importance of its role.

Members are a cross-section from the private and public sectors across all areas of practice, with a wide geographical spread, but are predominantly dispute lawyers.

While arbitration also has an important role, it is less common and tends to be restricted to large and complex commercial disputes, in which confidentiality is important. Arbitration cases tend to be run by experienced arbitrators who understand the nuances of these disputes.

“Arbitration remains quite niche, and is not as common as one might think,” Liam says.

Surge protection

The growth of mediation is set to surge with the imminent formation of the Mediation Council, to which Law Society President Eamon Harrington has been nominated.

The council is expected to bring together many interested stakeholders and not-for-profit organisations, as well as trade unions, legal professionals, and farmers’ organisations, once its members have been approved by the Minister for Justice.

The Mediation Council is also expected to house the register of approved mediators, which the public can use. It will also publish a code of conduct covering the duties of mediators.

The push for mediation also comes from the very top of the State’s legal apparatus. When the Attorney General published his legal principles for State litigation, mediation was ‘front and centre’.

Members of the judiciary are also keen advocates and encourage all parties to at least attempt the process, since court time is a finite resource.

“Given that the State is involved in so many proceedings, the potential savings are enormous,” Liam says.

Sparking interest

Liam first heard about the practice of mediation about 20 years ago when a good friend, who had ‘taken silk’ in London, gave up his lucrative practice at the Bar to focus completely on resolving high-value complex disputes through alternative methods. Intrigued, Liam wanted to learn more.

“Litigation is rules-bound and deals with a defined set of pleaded circumstances, and will look to previously granted reliefs, and can’t stray outside that,” he explains.

Mediation and ADR processes can allow for a more flexible and creative approach to difference, he believes.

He points to a case he was involved in whereby the legislation governing the work-permit system here was allegedly being abused to facilitate the trafficking of labour.

There were five State-party defendants in the case. The ADR chair says that there was no ‘joined-up thinking’ between them up to that point. Through the creative use of mediation, an entirely new protocol was devised between them.

“The strength of mediation is that the parties own the process, they can take it off at a tangent – and a good mediator will rise to that challenge,” he said.

Transformer dynamo

Any existing resistance to mediation lies mainly with those who haven’t engaged with the process, he says.

“There are very few parties who have engaged with mediation who would refuse to do it again. Most are struck by how transformative and dynamic it is, and how far beyond current proceedings it can go.

“What is most important is that mediation prevents the schism that happens when parties fight it out to the bitter end in a court of law. In terms of time and costs, you can’t argue with the advantages of mediation. There isn’t a downside if the process is engaged with properly.”

Even without a settlement, each party will learn something more about the other side’s case, often smoothing fraught relations, he adds.

In all, nearly 80% of cases dealt with by mediators are settled within three months of the mediation, Liam notes: “The seeds are sown at the start: mediation calms the process and opens the mind a little to the other side’s case, and the weaknesses in your own.

"It’s a safe space in which to articulate concerns because, in a courtroom situation, parties are naturally more formal and guarded.”

Direct current

Since the enactment of the Mediation Act 2017, lawyers are now obliged by statutory duty to bring up the option with their clients.

“Lawyers have nothing to fear from mediation,” Liam stresses. “It makes for a happy client. A good lawyer will always apply holistic advice, and will explain if there is an alternative in order to deliver a result sooner and in a satisfactory manner. Life is increasingly complex and lawyers can’t stick to ‘one-size-fits-all’ solutions – there are several other ways to achieve results.”

He says that mediation is a critical tool and can bring dispute resolution to another level.

“Mediation now features, by default, in every single dispute. Good lawyers trying to bring about the best result will have it as part of their professional toolkit and won’t need external stimulus to consider it.”

The ADR chair says that no lawyer can work in dispute resolution – whether in commercial, family, or employment law – without using these tools. At whatever stage, mediation offers savings in both time and money.

“The sweet spot for mediation may come early or late, and each case will have an optimum time,” he explains, “whether before or after discovery, and its attendant costs.”

At Blackhall Place, PPC trainees are learning ever-more complex and elaborate mediation practices, and there is a significant level of interest among emerging lawyers.

“This is a civilised way of doing business, and one that we should embrace. It’s a win-win for everyone. Solicitors can be very good at it, because they know their client and they know what they want, and what can be delivered. There is a time for war – and a time for peace,” he concludes.

Mary Hallissey is a journalist at the Law Society Gazette.