This Week In Mediation Episode 11

[fa icon="calendar"] 09-Mar-2017 12:51:07 / by Aled Davies

Aled Davies


It's been a busy week in the world of mediation. Ireland have finally published the long awaited Mediation Bill which has just been presented to the Irish Parliament. So we'll covering this in some detail during the show particularly the parts that have significant implications for mediators and mediation. 

We'll be looking at some legislative developments in Turkey in relation to workplace disputes as well as some innovative applications of mediation and mediation skills to manage homlesssness in Scotland.

We've got a slightly different format this week with a special guest presenter co-hosting the show with me in our mobile studio. 


This Week In Mediation live from Dublin, Ireland

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(Apologies in advance for the audio interference during this show)



Read The Full Transcript

 

Aled Davies:

Hi, I'm Aled Davies and welcome to Mediator Academy's round up of mediation news from around the world, but today I'm standing in front of the Oireachtas, which is the Irish parliament, where I shall be reporting live for this week in mediation.

 

 

Hi, I'm Aled Davies and welcome to MediatorAcademy's round up of mediation news from around the world. As always, I'll try and be illuminating, informative and a little bit outrages. Welcome to this week in mediation.

 

 

Now, we've got a slightly different format of the show this week because I have just come from, as you know, the Houses of the Oireachtas, which is the Irish parliament, for you Philistines out there, where the new Irish mediation bill is being presented right now as we speak to parliament. So, we're going to cover that in the show along with a number of other very interesting, enlightening stories from the mediation world, so let's go and meet our special guest for today.

 

 

We have talked about the Irish mediation bill in earlier shows of this week in mediation and it's currently being presented to the Irish parliament. I'm in Dublin right now as you can see, so I wanted to find the most appropriate person, who can tell us a bit more about the bill, the most respected commentator in all mediation matters in Ireland, someone who is experienced in mediation. I searched the streets of Dublin and I couldn't find anyone, so instead, we've got Sabine Walsh. Sabine, welcome.

 

Sabine Walsh:

Thank you.

 

Aled Davies:

I'm just kidding.

 

Sabine Walsh:

I think.

 

Aled Davies:

Sabine is president of the Mediator's Institute of Ireland, folks. Okay? And is also very experienced mediator academic, commentator on mediation matters, trainer, teacher and we are very lucky to have Sabine on the show today. Sabine, tell us what's coming up in the show.

 

Sabine Walsh:

Well, finally we have a mediation bill in Ireland, so I will be talking you through that and pointing out some of the more interesting features, particularly from the perspective of the mediator. Then we're also going to look at some legislative developments in Turkey and relation's mediation. And we're going to look at a very innovative use of mediation, mediation skills in relation to homelessness and managing homelessness, which comes from Scotland.

 

Aled Davies:

All right.

 

Sabine Walsh:

So then we'll see where we go after that.

 

Aled Davies:

And then we'll probably round up with question of the week. I should say, actually, we had some really helpful responses to the last question of the week, which was around truth. And in this post truth/fake news era that we're in, I posed a question to our viewers about how do you manage a situation where you have two parties in a room, both equally convinced about the events that happened with diametrically opposed memories. How do you manage those moments in a mediation? If you want to learn a couple of really helpful strategies, then go to the comment section and read the strategies and ideas proposed by two of our viewers. Thank you, to the both of you, for suggesting those strategies and we always welcome your comments and questions. Let's get stuck into the first story, which is the long awaited mediation bill in Ireland. It hasn't been enacted yet. I had an education from Sabine earlier about when a bill becomes enact. So if you want to find out more, ask me questions in the comments box and I'll tell you.

 

 

But the mediation bill is interesting, because I think it's going to present some dilemmas for mediators, certainly, and also some implications for mediation more broadly. Sabine tell us a bit about the bill.

 

Sabine Walsh:

Okay. Well, I think the first thing to point out is just how long this bill has been incoming. It was first talked about back in 2008 when the law reform commission started discussing the need for legislation in the area of alternative dispute resolution, specifically mediation. We then had the first iteration in 2010. Another draught of the bill was published in 2012 and we all thought that was going to be in place by now, but the best laid plans don't seem to work shortly in political circles. So, we now, finally nine years after it was first discussed, are looking at a newly published bill. So that is the equivalent of a draught law on mediation and that is under discussion. It's been presented to our parliament as Aled says today, "as we speak."

 

Aled Davies:

Okay. So what does it do? What does the bill do?

 

Sabine Walsh:

What does it do? Okay.

 

Aled Davies:

Key features.

 

Sabine Walsh:

Key features. So, key features are it regulates some aspects of some forms of mediation in Ireland. And now, I know that sounds a little bit vague, but it regulates some of the things we all have come to associate with mediation such as confidentiality and force ability of agreements, the rights of the parties in mediation, some of the obligations that are on the mediator and mediation. And it generally puts a regulatory framework around particularly certain types of mediation or mediation in certain type of cases in Ireland.

 

Aled Davies:

Okay. All right. Does it apply to all mediations in Ireland?

 

Sabine Walsh:

No. I think that is one of the, I suppose, the interesting features and perhaps the challenges of this piece of legislation is that the way it is framed at the moment is that it is applicable to civil proceedings. So those of you out there who aren't in the legal world or haven't studied law might well ask, "What on earth are civil proceedings?" And the short answer to that is basically anything that doesn't end up with you in gaol or doesn't potentially end up with you in gaol. When we're looking at court jurisdictions, anything that doesn't come within criminal law is civil proceedings.

 

Aled Davies:

Okay, so I'm just going to stop you. What mediations are included in the bill and what aren't?

 

Sabine Walsh:

Good question. Basically, any disputes that can come before the civil courts, that can come before the courts are included.

 

Aled Davies:

Family?

 

Sabine Walsh:

Yes, family is included but what is excluded are a certain number of disputes, including anything relating to revenue and tax law, anything that comes within the scope of arbitration proceedings, anything that is covered by existing legislation. We have some sector-specific legislation on mediation. And very importantly, any cases that come within the auspices of existing dispute resolution mechanism, say for example, very importantly, the workplace relations commission, which is the main form in Ireland for workplace and employment disputes.

 

Aled Davies:

Okay.

 

Sabine Walsh:

So those disputes are excluded from the scope of this act.

 

Aled Davies:

All right. So, other than the special cases that you talked about, revenue taxes are one. Workplace is excluded, workplace disputes.

 

Sabine Walsh:

Most workplace disputes, yes.

 

Aled Davies:

Most workplace disputes.

 

Sabine Walsh:

Yeah. And there is some a little bit of interpretation to be done on which disputes are and which are not included in the act, and that's something we're looking to clarify.

 

Aled Davies:

Okay. And what about community?

 

Sabine Walsh:

Community disputes, in so far, is they might become a civil ... civil case are included, but again, it's not specific.

 

Aled Davies:

Right. And things like elder mediation?

 

Sabine Walsh:

Again, it's a kind of a difficult question to answer. Yes, on the face of it, yes. But again, it needs to come within this definition of a civil dispute or civil proceeding. So, we're looking to clarify exactly what cases are and aren't included.

 

Aled Davies:

All right. Okay, so that's quite interesting. Some cases are, some cases aren't. What are the implications for mediators?

 

Sabine Walsh:

The implications for mediators are, number one, we're hoping that it will divert more cases to mediation because there are now quite detailed obligations put on lawyers, on solicitors and barristers to suggest and recommend mediation to their clients and give them information on mediation. And their increased powers given to judges to invite parties before them, to resolve their dispute of mediation rather than carrying on in court. And there is a provision whereby and due course the minister for justice can implement a system of mediation information sessions for family disputes. So we're hoping that it will bring more work towards our mediators, but that is the golden side. The shadow is that at the moment in how the bill is drafted, it includes some quite onerous provisions for mediators and put some quite onerous obligations on mediators.

 

Aled Davies:

Pray tell.

 

Sabine Walsh:

When a case is referred to mediation by court under this draught piece of legislation, there is a provision there imposing an obligation on the mediator to report back to the court, okay? Now, this report is to contain, first of all, a statement to whether mediation proceeded or not. If it proceeded, whether it resulted in an agreement or not, and if it didn't proceed, why it didn't proceed.

 

Aled Davies:

Okay. So let me this. What you're saying is any court annexed mediation?

 

Sabine Walsh:

I think I'd prefer not to use the term court annexed mediation because that can sometimes imply that there is a mediation service associated with our integration of the court. So what we say is-

 

Aled Davies:

Court preferred?

 

Sabine Walsh:

Court preferred. Exactly.

 

Aled Davies:

Okay, so any court preferred mediation, the mediator is obligated under this bill ...

 

Sabine Walsh:

Yeah, to report back to the court.

 

Aled Davies:

... to report back to the court that a whether the mediation took place.

 

Sabine Walsh:

Yeah, and if it didn't, why it didn't.

 

Aled Davies:

If it didn't, why it didn't. If it did, what was the outcome.

 

Sabine Walsh:

Yup.

 

Aled Davies:

And ...

 

Sabine Walsh:

And if the parties, and the words you were to use is along the lines of engaged effectively in mediation. So, the mediators being asked to assess whether the parties engaged effectively in mediation.

 

Aled Davies:

Whether the parties engage effectively?

 

Sabine Walsh:

Yes.

 

Aled Davies:

Right. Have they got a list of criteria?

 

Sabine Walsh:

No. That is one of the difficulties, and one of the issues we're concerned about is how on earth that can be measured, that could be applied. What guidelines are there? What signifies effective engagement? Now, the reasoning behind this is that the draughtsmen, the legislators, are concerned that parties don't begin to use the court's ability to refer cases to mediation as an delay mechanism or as a tactic, as a strategy.

 

Aled Davies:

Right. Okay.

 

Sabine Walsh:

So that a party doesn't come into court and go, "Oh, judge, we'd like you to invite the other party to mediation," so that they can, if you like, kick the can on the case down the road another little while or in an attempt to maybe elicit some information from the other side. The court wants to see a bona fides or the legislators feel that the court wants to see a bona fides of good engagement.

 

Aled Davies:

What is bona fides of engagement.

 

Sabine Walsh:

Engaging in good faith.

 

Aled Davies:

Okay.

 

Sabine Walsh:

So that parties engage in good faith and don't just use a mediation referral as a tactic.

 

Aled Davies:

Okay, but that's quite a subjective-

 

Sabine Walsh:

Sure.

 

Aled Davies:

And how do you account for mediator bias?

 

Sabine Walsh:

Exactly. This is the issue that we've raised along with the issue that if you take this report to its next logical step and link it with a further provision in the bill, which permits the court to impose cost penalties for unreasonable refusal to go to mediation, you could find yourself in a situation where a mediator's report is used to make a claim that, say, one of the parties should be penalised for cost for not engaging effectively in the mediation or not engaging in the mediation.

 

Aled Davies:

Ooh, can of worms.

 

Sabine Walsh:

Yes, bit of a can of worms, and a particularly for the potential liability of mediators and we're really looking at what exposure mediators might have there. And also, how that is going to impact on the trust of the parties. Is a process really voluntary if parties feel that if they're seen either to not to turn up, not to agree to come to mediation or not engage effectively in however that may manifest itself, is it really voluntary if there's a potential for cost penalties there, if a party, say, withdraws or decides not to engage in a mediation?

 

Aled Davies:

Yeah. I think Frank Sander made the distinction between coercion into mediation and coercion in mediation.

 

Sabine Walsh:

Yes. In mediation, yes. And I suppose, we would be concerned that if there's issue of a report, really comes down if that obligation is put on mediators to report around the engagement of a party in mediation, we could be looking at potentially coercion within mediation or at the very least, parties who are unhappy with the report that the mediator has given, to then challenge the mediator on that.

 

Aled Davies:

Okay, so what's next? [crosstalk 00:14:07]

 

Sabine Walsh:

What's next? Okay. The Ireland is in a bit of a unique situation at the moment. The government we have at the moment, the governing party is not actually in the majority, so we have a minority government at the moment. What this means for this particular piece of legislation, which is proposed by the current government is that there is still potential for amendment, because the government don't hold the majority in parliament at the moment. Once the discussion on bill is finished today, it will go through to what's called comity stage, where a comity will be appointed to examine the bill in more detail and amendments can then be proposed at that stage.

 

Aled Davies:

Okay.

 

Sabine Walsh:

And a thorough debate will then take place on various different aspects of the bill. We, and when I say we, I mean also the Mediator's Institute, will be feeding back some of our concerns and feedback to this comity, hopefully, we'll certainly attempt to do so when that stage comes around. Then we'll have to wait and see what the government decides.

 

Aled Davies:

Very interesting.

 

Sabine Walsh:

Yeah, yeah.

 

Aled Davies:

So it's all exciting?

 

Sabine Walsh:

It is exciting. And it's important to emphasise that this is a really fantastic move for Ireland because it gives the mediation process a new legitimacy, particularly from the perspective of the legal profession and the legal system, in that it really integrates mediation now as part of modern dispute resolution processes that are available to people in Ireland. We're giving it a huge welcome. We're delighted that it's finally got over the light, in terms of at least being published. And we're looking forward to helping to make it as user-friendly and as effective as we possibly can.

 

Aled Davies:

Super. Okay. Ireland isn't the only one going through some kind of a regulation process. We've got another ... is it European? But they're not yet European.

 

Sabine Walsh:

Not quite yet. We'll see.

 

Aled Davies:

They'd love to be, wouldn't they?

 

Sabine Walsh:

Yes.

 

Aled Davies:

Tell us a bit more about what's going on in Turkey.

 

Sabine Walsh:

Okay. So in Turkey. As you would quite rightly say, there's a lot of legislative activity going on in relation mediation in different countries. In Turkey, what they have done, again, proposing to do, it's a draught law on labour mediation. Oh, no, on labour law, I should say, that incorporates mediation provisions. This new draught law on the labour courts in Turkey will make mediation mandatory as a pretrial step before proceedings can be filed. And so, this law basically applies to cases that would come with an employment and workplace relations, both individual and collective. That would include, for example, trade union disputes.

 

Aled Davies:

Okay, not to worry about things like bullying and harassments, yeah?

 

Sabine Walsh:

Yeah. So those individual cases as well. And what this draught law proposes is that mediation must be attempted before the legal papers can be filed to initiate the court case.

 

Aled Davies:

Okay. All right.

 

Sabine Walsh:

And if those papers aren't filed, the case would be deemed inadmissible straight off until mediation has at least been attempted.

 

Aled Davies:

Okay, so some workplace mediation, certainly, the workplace mediations I've been involved in where they've invited the mediator in, it's before or in conjunction with the internal former processor, so it hasn't yet met that.

 

Sabine Walsh:

That's right. Yeah, it hasn't yet. It hasn't gone legal as you would say yet.

 

Aled Davies:

Yeah. Yeah.

 

Sabine Walsh:

And that may well be the case in Turkey as well. But it has been identified, obviously, that the labour court is one that is particularly snarled up in terms of case load and cases running on for a long period of time. So, this initiative is driven or directed at resulting that case load and trying to get more of those cases into mediation rather than amending up in court straight away. And it's just interesting to contrast that, I suppose, with the draught Irish bill that excludes a lot of workplace mediation. And that, at least, on the surface still stays away from mandatory mediation.

 

Aled Davies:

Okay.

 

Sabine Walsh:

So again, it raises all of these questions on how voluntary is mediation really if you're mandated to attend it beforehand.

 

Aled Davies:

Okay. Well, I want to move away now from the regulatory framework and get back to the roots of mediation, and look at how mediation has been used ... Interesting, actually, think about the impact of a really strict regulation process when you're trying to implement more community-based initiatives.

 

Sabine Walsh:

That's right. Yeah.

 

Aled Davies:

There was a case in a mediation story in a place called Wedding in Germany ...

 

Sabine Walsh:

I know it well.

 

Aled Davies:

... where they had a group of homeless people that would gather in this residential area, had a park in the middle of this square. And they would meet and drink the night away. The problem for the local community was they had young children. There was a party in the day and there were broken bottles and there was, you know, mess.

 

Sabine Walsh:

[crosstalk 00:19:24].

 

Aled Davies:

And it would create and would cause loud noise at night. A real problem. They had a mediation between the community members, I think the local council, and representatives of this group of homeless people. They came up with a solution that was, you know, on the face of it, it was a real win-win. They ended up building an area that was designated for this group of people, so they could still meet and get drunk. They put some public facilities in there and they didn't disturb the local people. I thought it was a lovely story.

 

Sabine Walsh:

Yeah, interesting idea.

 

Aled Davies:

There's a slightly different initiative going on up in Glasgow at the moment. What's about that?

 

Sabine Walsh:

Yeah, in Glasgow. What they have been doing in Glasgow is that they have been ... By they, I say that there's some of the state services, so they are mediators who are working within the social services. Some as mediators, but some also as social workers or other professionals who have mediation skills. And they have been working to address homelessness in Glasgow. And address it at every stage of the cycle of homelessness. As a preventative measure, and even where maybe somebody has become homeless to try to reverse that, and get them back into long-term accommodation. And it seems to be taking this kind of outside, very formal mediation processes. They can be if you like mediative interventions.

 

 

But one lovely example, I think, that was given, which is not actually unrelated to the example that you gave, was where the mediators or the people with the mediation skills, worked, for example, with an adult child of parents who had fallen into alcoholism, as a result of which, had then been forced to had to leave the home because of the threat of the parents' gnash, and had become homeless. They had worked with this person and the parents, to broke her to negotiate, mediate an agreement, pursuing to which he could move back into the family home, at least temporarily with a few of them to moving on to other accommodation in due course. So, that was an instance of somebody coming out of homelessness back into permanent accommodation.

 

 

Another aspect to this initiative then is mediation between, say, tenants or people living in houses who might be on the brink of losing their homes because of missed payments or whatever. And local authorities or landlords to try to prevent the family or the person, or the people from becoming homeless, and try to put in place a mediator agreement, so that the local authority with the landlord would obviously get put money as due to them or whatever conditions need to be met. But the people involved can actually stay in their accommodation search, prevent homelessness from that perspective.

 

Aled Davies:

Okay. And is it working?

 

Sabine Walsh:

It seems to be working and it seems to be working particularly because the mediators are seen as being independent of the local authority. The mediators are seen as neutral, as not being there to represent the wishes of the local authority, which is hugely important, of course. Because you know, if people ... if a tenant is feeling under threat, under pressure, because they're not meeting rental payments, whatever. Having an impartial person, an outside person to mediate that meeting is very important. And also, because these mediations happen, of course, confidential. These thorny issues around family relationships around gambling, addictions, drugs, alcohol, abuse can happen in that safe confidential space, without going into the public eye, and that seems to be making it safer for families and parties to find their way into that process.

 

Aled Davies:

So would these types of cases then be, if these were happening in Ireland and the bill, would they be subject to-

 

Sabine Walsh:

That's a really interesting question. At the moment, potentially, they could come within that framework. If for example, if you had a dispute between, say, two siblings over the rights to a house and the rights to live in a house, that could find its way to the courts eventually, so yes, that could come within the framework of the bill. If it was tenancy dispute, interestingly enough, it wouldn't because there's an existing mediation process in place and Ireland under the private residential tenancies board, which would address those kind of cases.

 

Aled Davies:

Yeah. Okay. Right. It sounds like any regulation needs to be quite elastic then to accommodate the loss of difference.

 

Sabine Walsh:

Yeah, and this is the big challenge with regulation, you know. Regulation of something like mediation is that ... Regulation is a good thing because it legitimises a process, it puts a secure framework around it, it protects parties and mediators in many ways, particularly, say, confidentialities and legal requirement.

 

Aled Davies:

Yeah.

 

Sabine Walsh:

But the flip-side of that then is that mediation as we know is such a flexible process. And it's very difficult to find one size fits all. Regulation that will suit the needs of, say, family mediation process where you might be working directly with children, a commercial mediation process where you might have to have lawyers and bankers and accountants involved. And then, something like this, say, community mediation process where there might be no written agreement to mediate, you might meet in people in parties houses, there can be whole teams, whole communities, groups of individuals like those homeless people in Berlin involved. So it's a real challenge for regulators to try to get that balance of creating the safe regulatory frame while preserving the flexibility, which gives me the [inaudible 00:25:15] its magic.

 

Aled Davies:

That's very interesting. It's been ... I think the theme of this show has certainly been regulation, regulation, regulation.

 

Sabine Walsh:

Yeah. And I think often people think regulation is a bit dull and boring, but actually, for mediators, for us all as mediators it is hugely, hugely important. We need to know what our obligations are and what the parties' rights are, what the parameters are around engaging with our clients.

 

Aled Davies:

And also, I think just from the parties' perspective to know that if you're engaging the services of a mediator, that they are trained, that they are competent, that they have standards that they have ...

 

Sabine Walsh:

That's right.

 

Aled Davies:

... an ethical framework to inform their practise, and you have that ... because at the moment in the UK that-

 

Sabine Walsh:

No, I have to say on that no. The Irish mediation build does not make a provision for set standards.

 

Aled Davies:

Right.

 

Sabine Walsh:

It does permit the minister to issue a code of practise draught, an issue or adopt a code of practise that mediators then can be required to adhere to, but it doesn't set out a minimum training standard [crosstalk 00:26:36].

 

Aled Davies:

Okay. Okay. Well, interesting. We look forward to hearing more when it turns from a bill to an act.

 

Sabine Walsh:

Watch this space.

 

Aled Davies:

Definitely.

 

 

So, that's it for this week in mediation. If you enjoyed the show, please tell others about the show because we want you talking, not necessarily about the show, but about the issues that are raised in the show. We want everyone to engage in conversations and share these conversations, so that we can make little baby steps forward with some of these dilemmas and issues, and topics that are important for us all.

 

 

That's if for now. It's goodbye from me, from MediatorAcademy's, their very grand studio, and thank you to Sabine for co-hosting the show this week.

 

Sabine Walsh:

No problem.

 

Aled Davies:

Cheers.

 

Sabine Walsh:

Cheers.

 



 

Topics: Mediation News

Aled Davies

Written by Aled Davies

Founder Mediator Academy