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Article by Dr Róisín O’Shea, Chair of the Irish Professional Mediators’ Organisation

Are mediated settlements legally binding? “Absolutely” says Michael Peart, former judge at the Court of Appeal and now mediator.

In his Linkedin Post of September 16th 2024 Michael goes on to say:

“Once both parties have agreed the terms of settlement and have signed the agreement, it is legally binding and enforceable as with any other contract.”

It is hugely beneficial to both the public and mediators to have the law stated so clearly by someone of Michael’s standing in the legal community. Those who practise mediation know that section 11 of the Mediation Act enables the parties to a mediation to decide if they want their mediated agreement to be legally binding between them; whether it is a Separation Agreement, an agreement for a Judicial Separation or Divorce, or a resolution (mediation settlement) of any other civil dispute, reached with the assistance of a mediator. Where it is expressed to be legally binding that agreement can be brought to Court to be enforced or to be “Ruled” ie the Court can be asked to turn the mediated agreement into court orders.

A former solicitor, Michael served as a Judge of the Court of Appeal from 2014 to 2019 and was a Judge of the High Court from 2002 to 2014. He was a Guest speaker at the IPMO’s annual conference on March 7th 2024 at the  Dublin Dispute Resolution Centre, where he spoke about the transition from the bench to practising as a mediator, a forum where he now helps parties in a dispute to find common ground, identify their interests and explore settlement options that are mutually acceptable; a forum where parties in dispute can avoid the stress and additional cost of litigation. He also spoke about raising awareness generally about the potential of section 16 of the Mediation Act 2017 and the fact that mediation remains viable right up to the point of a final determination. Michael noted that the IPMO is an outstanding example of an evangelical organisation, supporting the development of mediation as a profession. 

Mediation: a real option across the island of Ireland

The Irish Professional Mediators’ Organisation Annual Conference

A powerful presentation by charismatic keynote speaker the Hon Ms Justice Marguerite Bolger set the tone for an exciting second annual conference for the Irish Professional Mediators’ Organisation, held at the Dublin Dispute Resolution Centre on March 7th. While Judge Bolger is a sitting High Court judge, and an accredited mediator, it was in her capacity as President of the Irish branch of GEMME that she spoke to attendees about the importance of mediation as a dispute resolution option.

GEMME is a European-wide organisation of Judges from Member States and the EFTA, committed to promoting mediation and other alternative methods to resolve disputes. Judge Bolger spoke about section 16 of the Mediation Act 2017, where a party or the court of its own volition can invite the parties to consider mediation; and section 15 of the Courts  and Civil Liability Act 2004 (as amended) where the Court can direct the parties to attend mediation. In acknowledging the difficulties in raising the public’s awareness of mediation as an option she asked the mediators attending to think about what judges can do to assist mediation practice, where appropriate.

Former Judge of the Court of Appeal, now mediator, Michael Peart, followed as a guest speaker. He spoke about the transition from the bench to practising as a mediator, a forum where he now helps parties in a dispute to find common ground, identify their interests and explore settlement options that are mutually acceptable; a forum where parties in dispute can avoid the stress and additional cost of litigation. He also spoke about raising awareness generally about the potential of section 16 of the Mediation Act 2017 and the fact that mediation remains viable right up to the point of a final determination. He noted that the IPMO is an outstanding example of an evangelical organisation, supporting the development of mediation as a profession.

Dr Róisín O’Shea, Chair of the IPMO moderated a lively discussion between the two guest speakers, contrasting the role of a judge and the forum of litigation to the facilitative role of a mediator within mediation; a forum where people can tell their stories and feel heard, while being assisted to explore creative solutions to resolve a dispute that may not be possible within the constraints of a legal process.

The shift to the use of on-line platforms and new technologies post the pandemic was evidenced by ease at which the next guest speaker presented from Australia via Zoom, with a camera providing the speaker with a view of the room.

Prof David Hodson OBE, solicitor, mediator, arbitrator and part-time family judge London, delivered an engaging presentation on the growing need of international families to deal with the break-down of marriage through mediation, the alternative being long, expensive and highly adversarial litigation and complex conflicts of law. He announced an initiative which commenced in late 2022, the International Family Mediation Project, where a group of international experts in the field of mediation led by David Hodson and Dr O’Shea, have volunteered to develop supports for mediators globally to create a form of international family mediation, which it is hoped will ultimately lead to an International Family Mediation Convention.

The conference ended with an interactive family mediation case study led by Shane Dempsey, Deputy Chair. He provided members with a fascinating snapshot of the issues that can arise on the break-down of a marriage, with attendee participation assisted by technology (Mentimeter) and Q&A.

In speaking to the achievements of the IPMO in its short life to date, Dr Róisín O’Shea, Chair,  commented, “ we are but a toddler, just over two years old and already 70 members strong. We have achieved so much in such a short time as outlined in the presentations by our committees today. On the invitation of the Department of Justice we are participating in the Family Justice Forum chaired by the Minister; we participated in the Department’s Statement of Strategy consultation; and we continue to engage in the consultations to establish the Mediation Council of Ireland. Our members come from 28 different professional backgrounds, and with a clear apprenticeship pathway of mentorship and supervision we are confident that our members will consistently provide a competent mediation service to the public, whatever the subject matter of the dispute may be.

We are pleased to announce that our members resoundingly voted today to amend our Constitution to be an all-island mediation membership body and our key focus is on raising awareness of what you can do in mediation, how quickly you can access the service and how cost effective that service is.

Mediation as a professional service will steadily grow assisting the people across the island of Ireland to self-determine workable solutions with the expert help of our members.  We recognise that we have only begun the journey to raise awareness of mediation, however, this is a marathon, not a sprint, and we hope that the day is not too far off when the people of Ireland see mediation as the preferred first step in the process to resolve any civil or commercial dispute.”

All enquiries to info@theipmo.ie  www.theipmo.ie

This is a very interesting divorce case that family mediators should consider when drafting mediation settlements for separation or divorce.

This was an appeal to the High Court as the Circuit Court had refused to grant the decree of divorce where the parties continued to live together in the same house.  Mr Justice Jordan said a couple can be considered as living apart while under the same roof where they are not in an intimate and committed relationship; and that there is nothing in legislation to require parties seeking a divorce to establish they will live in separate dwellings afterwards. 

https://www.irishtimes.com/crime-law/courts/2024/01/17/high-court-grants-divorce-to-former-couple-who-continue-to-live-in-same-house/

Ercus Stewart, expert mediator and arbitrator

To help you to get to know more about our expert mediators we are running a Member Feature news item where we provide background information about a member.

Ercus Stewart is a Senior Counsel (Barrister) since 1982 and is a member of the Bars of Ireland, Northern Ireland, England and Wales, and Australia (New South Wales). In 2021 he became a Board member of the Irish Professional Mediators’ Organisation CLG, ‘IPMO’, and is Chair of the IPMO Civil & Commercial Committee.

He has been actively involved in alternative dispute resolution, both mediation and arbitration, for most of his professional career spanning almost 5 decades. He is an experienced mediator and arbitrator and brings extensive legal knowledge and expertise to his work as a mediator when dealing with Commercial and Civil disputes, including contract disputes, employment law and workplace disputes, and national and international commercial disputes, and is fluent in French.

He is a Chartered Arbitrator and Fellow of the Chartered Institute of Arbitrators, and was chairman of the Chartered Institute of Arbitrators Irish Branch c 1990/91.

Ercus has served as an Arbitrator in many international, and domestic, institutes – including, Court of Arbitration for Sport, Lausanne (CAS), ICC, Paris; IDRI, Nigeria. He is an Adjunct Professor of University College Dublin and an authority on arbitration law, lecturing on arbitration law for the Honourable Society of King’s Inns, DIT, UCD, TCD, and for the Chartered Institute of Arbitrators, London, and IDRI.

Ercus has also authored and co-authored several books over the years including: International Bar Association – Labour Law and Contracts of Employment (international); Arbitration Commentary and Sources, FirstLaw (2003) and Compensation on Dismissal FirstLaw (2007). He is on the editorial board of the Commercial Law Practitioner, Irish Law Reports monthly, the Irish Employment law Journal and the Irish Employment Law Reports.

Ercus is a Certified member of the IPMO which is the highest level of membership within the organisation denoting extensive experience and skill-sets as a mediator.

Contact: estewart@lawlibrary.ie Mobile 087 2550979.

The IPMO had the great pleasure of interviewing renowned mediation trainer & author Tony Whatling for International Mediation Awareness Week. A link to the interview on YouTube is available here. 

IPMO members have also reviewed 2 of Tony's books for practicing mediators. 

• Mediation and Dispute Resolution, Contemporary Issues and Developments, AND
• Mediation Skills & Strategies - A Practical Guide. 

Mediation and Dispute Resolution, Contemporary Issues and Developments, Tony Whatling (2021), Jessica Kingsley Publishers London, ISBN 978 178775115 6

This is not the first book on mediation written and published by Tony Whatling. Following a career in social work, Whatling engaged in an extremely successful career in mediation and mediation training, an area in which he continues to excel. In 2012 he published "Mediation Skills & Strategies – A practical guide". Writing as a lawyer, I can acknowledge that as a nonlawyer, Whatling is able to give an excellent and objective overview of mediation and the role of various professionals entering into the world of mediation practice, (lawyers in particular) and more particularly the adjustment challenges faced by them. 

Whatling references John Haynes, a renowned US ADR practitioner who, in Whatling's words "cautioned that, when the going gets tough for us as novice mediators, what we tend to do is slip into the more familiar activities of our previous professional role". Lawyers for example, Whatling says "may start giving some legal information, or, worse still, some legal advice".  Whatling repeatedly warns against mediators defaulting to their primary profession and training in the course of providing mediation services and as a lawyer who learned the hard way, that when entering into the world of mediation that lawyers need to learn how to lobotomise their lawyer brain, and only utilise their mediator brain, I wholeheartedly agree.

The theoretical issues explored by Whatling in his 2012 publication are expanded on in this work in a very practical way. While his first book focused on the more theoretical issues such as the development of mediation theory, skills and strategies, this latest work focuses on more practical issues such as the process of becoming a mediator, mediator supervision, bias, self-awareness (gender and cultural awareness and sensitivity), how people think (as I tend to express it "What makes people tick and what makes people thick?"). Whatling identifies biases that any good mediator should be conscious of and the need for intellectual humility. In an era in Ireland when we are becoming more multicultural, this book is valuable for what has to say on the subject alone.

He goes on to examine and explain the role of emotion, the potential for the use of apologies in reconciliation, explores process options for practitioners, mediation of high conflict disputes, and the extent to which mediators incorporate mediation into resolving conflicts in their personal lives. Whatling emphasises the skill of "active listening" explaining exactly what this means and why it is so important in order to identify the deeper feelings which motivate people, which are not always easily discernible, and which underlies conflict. The importance of being able to understand and analyse body language, constituting 83% of all communication, is also explored.

Many of the topics explored are illustrated by very practical case examples, drawn from his experiences. For example, in relation to lessons learned in training Whatling states that he "tended to be more impressed with those who also provided evidence of what they regarded as their failures, especially when commenting on what they had learned from such unsatisfactory outcomes. As a trainer, assessor and PPC, a question I would frequently ask the trainee was what were the most important things they learned from the worst cases they had." Unless lawyers are willing to learn from such mistakes, they run the risk of becoming "poorly trained, or untrained mediators".

Whatling simply but brilliantly addresses such problems and the issues which concern mediators in practice. Each chapter then proceeds to deliver a short masterclass. At less than the cost of a meal for two, it presents a cornucopia, with food for thought for months on end.

The book looks deceptively short at only slightly over 200 pages, but each chapter is a treasure trove in itself. Even reading the book for this review took me quite some time, as every chapter is extremely thought-provoking, prompting self-analysis and reflective assessment/analysis of one's practice as a mediator. Right up to date, it even includes a chapter on "The Coronavirus Pandemic and its Potential Effects of the Behaviour of People in Dispute."

My initial reaction while reading this book was that this is a book for mediators who are on the road for some time, which they could use as a toolset to reassess, rebuild, consolidate and improve their mediation practice, but on reflection, it became clear to me that potential converts to the one true church of mediation could do well to study this book, with care and that there is much to be learned from it.

Definitely a good Christmas present/stocking filler for the mediator (or potential mediator) in your life.

 

Bill Holohan SC

Solicitor & Senior Counsel.

Member Law Society of Ireland ADR Committee

Member Civil & Commercial Committee of the Irish Professional Mediators' Organisation.

 

Review of Mediation Skills & Strategies - A Practical Guide, Tony Whatling (2012), Jessica Kingsley Publishers London, ISBN 978- 1849052993

I have been a practicing mediator for about 14 years with hundreds of settlements concluded and many students trained / supervised. My colleagues & I have recommended this book to trainee commercial and family mediators since we first became aware of it in 2013. Indeed, this book and Christopher Moore's The Mediation Process are the books I feel are essential for any practicing mediator to have read. Books about the practice of mediation or legal aspects of mediation in different jurisdictions are also useful, but these 2 books help you understand the theoretical context for mediation and its implementation in a way that few others achieve.

Many mediation books are consumed with theoretical frameworks for understanding conflict, some rehashes of the ideas of Spillman, C Wright Mills, Friedrich Glasl, Christopher Moore and others. The author may have their own twists or insights which can prove helpful for the budding mediator. I have found over the years that trainee mediators find such content intriguing but often lack the language to put these skills into action. They know roughly the types of questions they should be asking, or that they should be reframing an assertion by a disputant, but they are uncertain as to how to do any of that. It is also more challenging to deliver such interjections in the heat of an emotionally-charged mediation. Some prior practice and contemplation is necessary. 

That's where Tony Whatling's great book comes in. It is highly readable, to the point, and provides examples of interventions mediators can make in realistic conflict scenarios. The book is distinguished by clarity of thought & language, which helps trainee mediators think about resolution strategies, formulate questions and responses.

As part of reflective practice, I would often recommend fledgling mediators analyse their own interactions with clients versus Whatling's suggestions to understand what they might have done better. It's a technique that has worked for many trainees in the past and a testament to the value of this modestly sized but value-filled book. 

Whatling's book also gives experienced mediators fresh ideas when they may feel drained or stymied by their efforts to resolve a conflict. The book impresses by its grounding in extensive real-world practice experience, and a commitment to advancing mediation training.  Whatling introduces the oft-overlooked topics of cultural and gender sensitive mediation, and also managing high conflict disputes, their emotional context, and dealing with negative strategies such as dirty tricks & stroke play. So much covered in one accessible book.

This is a book I re-read and refer to regularly, and it has helped my colleagues and I greatly over the years. Thank you Tony!

 

Shane Dempsey

Partner, ARC Mediation

Treasurer of the Irish Professional Mediators’ Organisation CLG

Dr Róisín O’Shea, Chair of the Irish Professional Mediators’ Organisation was delighted to attend at the Annual Dinner of the Ireland branch of CIArb on November 3rd as the guest of Peter O’Malley, Chair of the Irish Branch of the Chartered Institute of Arbitrators. Peter has a keen interest in arbitration and mediation, and is a member of IPMO's Civil & Commercial committee. 

The Guest of Honour at the event was Bertie Ahern, Former Taoiseach, who spoke on the impact of the Good Friday Agreement and the importance of using mediation to resolve conflict. He noted that the Mediation Act 2017 provided for the establishment of the Mediation Council of Ireland and questioned the delay in establishing that Council.

The Council is intended to promote public awareness of mediation, such that there is a greater use of mediation for civil disputes, in line with public policy and as set out in the framework of the Act.

Commenting on Mr Ahern’s querying of the delay in establishing the Mediation Council, Dr O’Shea said,

“ The IPMO is keen to progress the establishment of that Council and with the assistance of the Department of Justice is working with the other prospective nominees to make that happen. As an organisation promoting the profession of mediation, we welcome the Department’s support, and we look forward to the day when mediation is considered the first and foremost forum to resolve any amenable dispute”.

Also in attendance at the event were IPMO Board and Committee members including Shane Dempsey (Treasurer), Ercus Stewart SC (Board Member),  and Bill Holohan SC (Member of our Civil & Commercial Committee). 

By Bill Holohan Mediator, Solicitor & Senior Counsel. Member of Civil & Commercial Committee of the IPMO

Mr. Justice Twomey delivered judgement on 10 February, 2023 in the case of Sere Holdings Ltd v Health Service Executive [2023] IEHC 63 and said that the State should, at least, consider mediation in every dispute in which it is involved. He further concluded that litigation should be the last resort for the resolution of disputes in all cases and particularly in disputes involving State agencies.

The Court set out the following reasons in reaching these conclusions. It noted that:

• court hearings should be a last resort, for the simple reason that litigation is such an expensive way to resolve any dispute;
• it is the taxpayer who will have to pay the legal costs if a State agency loses and even, in some cases, if the State agency wins;
• High Court costs paid by the taxpayer, in the tens/hundreds of thousands of euro, will in many cases not be ‘proportional’ to the value or importance of the dispute;
• if State agencies resolved their disputes without litigation, it would mean that scarce court resources would be available for other citizens of the State to have access to justice; and
• a State agency does not have the financial incentive that most other litigants have to consider mediation. For individual and corporate litigants, the financial consequences of having to pay High Court costs are usually very much to the fore of their minds, since they will feel the effect in their pocket.

The Judge, at paragraph 82, also noted the approach in Australia that obliges a State agency to endeavour “to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution processes where appropriate”.

Given that IPMO is only 20 months old we were thrilled to be asked by The Wheel to host a parallel session at their Summit event at Croke Park this week.

IPMO was born in a post-Covid world where mediators like everyone else had to quickly adapt to new technologies and new ways to offer mediation services. The Summit conference was an opportune moment to meet in-person with others in the voluntary sector and for IPMO to reflect on where we are going, and how the needs of our communities, particularly marginalised communities, may also meet the needs of our members. Chair of IPMO, Dr Róisín O’Shea was the MC for the event, introducing speakers Laura Gibbons who works with Dóchas, Zsé Varga from Volunteer Ireland, and Mary Connors Aldrige and Joseph Ateb from IPMO. The title of the session was ‘The opportunities that volunteering can create for multicultural Ireland’.

Mary and Joseph who lead the IPMO Community Mediation Committee spoke about the need to understand what is meant by community mediation in Ireland and explored a mutually beneficial model which meets the needs of the community to access low or no cost mediation and the need of mediators to gain practice experience before they start their professional journey.

l-r Dr Roisin O'Shea, Joseph Ateb, Mary Connors (of the IPMO), Cherif Labreche  (CEO of New Communities Partnership)

As Shane Dempsey Deputy Chair of IPMO noted, "volunteering to gain mediation experience is not a destination it is a means to gain experience in order to move on to professional practice".

Mary, a member of the Travelling Community spoke of her pathway to mediation, her recent appointment as CEO of Minceiri Port Lairge and the excellent work of the Traveller Mediation Service headed up by Chris McDonagh. Joseph spoke about coming to Ireland from Nigeria, studying law and securing a masters scholarship in mediation. Both spoke about the traditional values of their communities, the older dispute resolution culture and raising the awareness of mediation in those and other marginalised communities such as refugees, asylum seekers and immigrant communities.

Dr O’Shea facilitated a panel discussion which included guest panellist Cherif Labreche, CEO of New Communities Partnership and a Board member of the Wheel. Dr O’Shea closed the session emphasising the importance of volunteering and finding ways to attract volunteers such that organisations in the voluntary sector can thrive and communities benefit both locally and globally.

On Sunday April 23rd the Sunday Business Post reported that the Irish Professional Mediators’ Organisation have called on the Minister for Justice to lower the VAT rate on family mediation services and family law services, to at least 9%.

In 2019 Róisín O’Shea and Shane Dempsey, the current Chair and Treasurer of the IPMO, made a submission to the Joint Oireachtas Committee for Equality & Justice on reform of the family law system. In that submission they included a proposal that the VAT rate on family mediation should be reduced from 23% to no more than 9%. A journalist from the Sunday Business Post came across this 2019 proposal and reached out to ask if the Government had taken any steps to action this suggestion. The Board of IPMO had previously discussed calling again on the Government to consider this idea and last week the Board made a submission to the Minister for Finance Michael McGrath TD proposing that the State provide support to families who are going through the breakdown of a relationship or marriage by reducing Value Added Tax on family mediation fees and family law services.

Those who need the services of a family mediator, and a family law solicitor are individuals rather than businesses and therefore cannot reclaim VAT on their fees. At the current rate of 23% this is almost a quarter on top of the fees charged.

It is also the case that the majority of people engaging in mediation to agree parenting, child/spousal maintenance, and terms for separation or divorce will also need the services of a family law solicitor before they enter into a legally-binding mediation settlement or separation agreement. Therefore, separating families currently pay VAT at a rate of 23% for both their mediator and solicitor, substantially increasing the total costs. This extra cost likely depresses demand for mediation of marital separation, which the government is actively trying to promote as an alternative to litigation.

Lowering the VAT rate for both family mediation and family law services to at least 9% would have an immediate beneficial effect on the thousands of families experiencing marital separation, which are already impacted by the cost of living crisis.

IPMO looks forward to discussing this proposal further with the Minister.

The link to the Sunday Business Post article is below: 

https://www.businesspost.ie/news/couples-divorcing-should-be-spared-penal-vat-charges-mcgrath-told/

The Board of IPMO are pleased to announce the creation of a discounted student membership fee for those who are studying mediation. Students who are undertaking a mediation programme at third level can join IPMO for a fee of €20 which will allow student members to attend some IPMO member sessions and events.

Student members will receive the IPMO Bulletin which will announce which events student members can attend. It is an excellent opportunity for those studying mediation to be involved in interactive events with established mediators and those starting their mediation practice. IPMO is holding a series of events on the week of November 7th to 11th for International Mediation Awareness week which kicks off with a workshop on ‘Putting your best professional foot forward’ on starting your mediation practice; followed by another of our ‘In conversation with’ informal interviews where Dr Roisin O’Shea the Chair of IPMO speaks to international mediators about their professional journey.

All sessions/events are on Zoom .

To join the IPMO as a "Friend of IPMO (Student)", click here. 

Remember that you may be asked for proof of enrolment.