Jason O’Sullivan: Mediation a timely solution for pandemic effects within legal sector
Jason O’Sullivan, solicitor and public affairs consultant at J.O.S Solicitors, offers a practical guide to Irish businesses on steps to take in preparation for the coronavirus crisis.
As the COVID-19 crisis continues, albeit with easing of current restrictions, disruption is still present in every sector and industry in Ireland. One particular industry finding itself adrift, due to its overt dependence on traditional rules and forums, is the legal sector.
The judicial system, which was already experiencing court backlogs before the COVID-19 restrictions, is now severely behind, which is a cause for much frustration and concern to those working within the industry and to their clients affected.
A lot of potential solutions have been mooted, with some being fast-tracked to stem this inertia, such as virtual call-overs and remote court hearings, and the prioritisation of urgent and sensitive matters relating to certain cases within the family and criminal courts and those of constitutional and commercial importance.
One solution that could substantially assist in relieving the current and future backlog is the process of mediation. This forum is of course already existent but is not currently availed of to its fullest extent or true potential.
Mediation is an alternative dispute resolution mechanism, whereby an independent and impartial mediator meets with both sides to a contentious dispute and their legal representatives (if required) in a confidential and less formal forum than the courts.
The role of the mediator is quite simple yet highly specialised by their facilitation of open discussions between the parties in a mutually trusted environment. Through the mediator’s guidance and empowerment, it enables the disputing parties to find agreeable and amicable solutions, which can be legally binding, namely full and final settlement of commercial and civil disputes.
With current court access restricted, the usual mediation model could be easily adapted to enable remote mediation, which is performed in an online environment by the mediator creating virtual meeting rooms and enabling the exchange of pertinent documents in advance by private email. Meanwhile, direct personal mediation can also be still easily utilised in accordance with social distance and relatable safety requirements.
Mediation has been around for decades but in recent times has grown in significance within family law and employment law circles along with an increasing presence in commercial disputes, particularly those within the construction industry.
The Mediation Act 2017 came into effect in January 2018. The purpose of this welcomed piece of legislation at the time was to allow parties to a dispute to avoid the costs of litigation and to reduce the number of disputes coming before the courts. It has also placed an obligation on all solicitors to advise their clients of the option of engaging in mediation prior to the issuing of legal proceedings and to clearly outline the benefits that include cost benefits and time efficiencies.
Although the act has been in force for the last couple of years, there has been some reluctance and hesitation in certain quarters of the legal world to embrace mediation across the board in contentious disputes such as personal injury and medical negligence claims. The COVID-19 crisis now presents an opportunity for mediation to take on a whole new importance and urgency within the legal sector.
Looking across the pond to our nearest neighbours, eminent spokespersons within legal circles in the UK have been advocating for mediation to be considered a viable solution to current challenges as a result of the pandemic.
Lord Neuberger, a former president of the UK Supreme Court, stated in a recent BBC interview that “instead of going to court and having an expensive and uncertain piece of litigation, parties may be sensible to consider mediation”. He also stressed “the legal world has a duty to the rest of the world to prepare itself”.
Sir William Blair, a former judge of the London Commercial Court, explained that “new thinking is going to be required if the law is to play its full part in getting international commerce back on its feet - within the principle of legal certainty, space need to be found for renegotiation, and if the contract is no longer viable, equitable solutions”.
In an Irish context, just this week mediation was the focus of an insurance liability test case between the Lemon & Duke pub in Dublin and insurers FBD, on the issue of whether or not FBD must pay for the losses of the pub closure as a result of the current lockdown, an outcome that will have implications for thousands of pubs across Ireland.
Although this mediation has now reportedly failed and the case will move for hearing in the Commercial Courts in October, it is hugely positive that the process of mediation was engaged for such a prominent matter. Albeit the process per se was not successful in this particular case, mediation will continue to provide a vital alternative resolution option for those in dispute during these challenging times and beyond.