Increased pressure from judges to use mediation
Alternative dispute resolution (ADR) is no longer ‘alternative’ and has become mainstream, a leading commercial lawyer has told a Law Society event.
A&L Goodbody (ALG) partner Sarah Murphy was speaking yesterday (8 January) at a session on dispute resolution at the Future of Legal Practice Summit, the Law Society’s annual two-day legal-education event for trainee solicitors in Blackhall Place.
Murphy told trainees that ADR was now “part of the litigation toolkit”, adding that clients were much more sophisticated and well-versed in processes such as mediation and arbitration.
“You'll see it in contracts, in terms of dispute-resolution clauses, “ she said, adding that there was often a menu of options for settling disputes.
‘Hard stare’ from judge
Graham Kenny (principal, Graham Kenny Solicitors) told the event that a previous perception that the first party to offer mediation had a weaker case had gone, mainly due to obligations placed on solicitors by the Mediation Act 2017, which requires them to advise clients on mediation options.
Kenny said that, while there was an obligation to use mediation in Britain, Ireland had not quite reached that stage yet.
He added, however, that judges were putting increased pressure on parties to use mediation – especially in high-value cases – due to high costs and court backlogs.
Murphy said that mediation was now “akin to mandatory” in Ireland, adding that it would take a brave lawyer to ignore a “hard stare” from a judge.
She told trainees that clients were now more aware of, and more informed on, the costs of litigation.
The ALG partner pointed out that ADR offered parties confidentiality, and could also allow them to maintain a relationship with the other side that may be damaged by the adversarial process of litigation.
Litigation costs ‘prohibitive’
Both speakers praised the Irish courts system – in particular the independence and quality of the judiciary.
Kenny, however, told the event that the system, as a whole, did not work well, with the “prohibitive” costs of litigation for individuals leading to access-to-justice concerns.
He added that restrictions on legal aid excluded “vast swathes of society” from accessing the courts in any meaningful way.
Murphy said that, while the numbers of Commercial Court cases were falling, increased complexity, more legislation, and more data were leading to longer cases and more complex and lengthy judgments.
‘Exponential shift’
On AI and technology, Kenny said that he expected an “exponential shift” in how lawyers operated in the next 20 years.
“We are the last generation of manual lawyers,” he stated, warning against “human egos” about what the technology could do.
Murphy told trainees that, while they would have to be increasingly tech-savvy, she did not think AI would replace lawyers, citing the importance of emotional intelligence in law, which was still a “people business”.
She added that it was not enough for a solicitor to know the law; the role involved being a trusted advisor, which was much broader.
Murphy urged trainees to keep abreast of the wider factors that influenced a client’s business.
“You're not just giving them the law answer in a vacuum. You're giving it to them in a way that actually is relevant to their business, and you understand how it impacts or how it can apply or be relevant to them,” she stated.