Ireland is becoming an international centre for commercial dispute resolution. The legal framework provided by the Mediation Act and a proactive judiciary have put ADR in pole position for resolving disputes. This introduces new challenges for all branches of the legal profession. Listen to the views of a high court judge, a litigation partner and an academic as they debate the opportunities for dispute resolution practitioners post Brexit.
Sabine Walsh (00:04):
My name is Sabine Walsh. I am co-founder and head of learning at Mediator Academy. Some of you might have heard my name. I’ve been sort of sneaking around the mediation space in Ireland for the last decade or so. And we’re thrilled to have all of you all on this webinar this evening, and that you’ve shown such interest, which we feel is entirely justified. A little bit briefly about the context for this webinar. As, the title says, there’s a lot been going on in the dispute resolution space in even the last five to 10 years we’ve led the way in Ireland with a comprehensive law on mediation and various other dispute resolution related initiatives. And that was all before the pandemic and Brexit came along to throw a whole load of new disputes into the mix.
Sabine Walsh (01:00):
So it’s a timely webinar because of everything that has been happening and also because of our partnership with University College Dublin Sutherland School of Law and the new Professional Diploma in Dispute Resolution & Mediation that is starting this month and I’ll let professor Brian Hutchinson say a couple of words about that in a minute, who is our representative here from UCD. So I want to just begin by quickly introducing our speakers. So we have Mr. Justice, David Barniville from the high court commercial division. I think you’ve been sitting there since 2017, I believe. He is also the designated arbitration judge and, which I hope he’ll be telling us a little bit more about is involved in a new online arbitration project as well. And David has also been president of the association of judges of Ireland recently. Then we have, Eileen Roberts, solicitor, who’s the chair and a dispute resolution and litigation partner of A&L Goodbody based in Dublin.
Sabine Walsh (02:17):
And if I understand correctly, a CEDR accredited mediator, and a top mediation lawyer, according to Who’s Who Legal in Ireland. And also a member of ICMA, the Irish Commercial Mediation Association, which I’ve had various associations with myself in the past. And then we have Brian Hutchinson, professor of law for, I think about 30 years, perhaps in the Sutherland school of Law in UCD. Also a chartered arbitrator and accredited mediator and, someone with extensive experience, publication record and practice experience in ADR, ODR, and various forms of international dispute resolution and generally the dispute space in general. So the format of the webinar this evening is going to be that we have three burning questions, and we are going to put them to each of our panellists in turn to, give us their perspectives from their own professional experience and background in the different branches or arms of the law in Ireland. So, before we dive into the first question, I just want to open the floor to Brian Hutchinson to just say a few words about the professional diploma at UCD.
Brian Hutchinson (03:50):
Thank you very much, Sabine. It’s a very nice to have the opportunity to speak to you this evening about an exciting new programme that we are hosting in University College Dublin in partnership with Mediator Academy. And it is as Sabine has introduced a professional diploma in dispute resolution with a focus on mediation. And the title perhaps gives away the idea that disputes are something perhaps grander than just you know, differences that can be settled in a snapshot sort of focus on a particular moment in time that perhaps they have a past that they have a present and that they have a future. And of course, by looking at those things we perhaps get a better idea of how to manage them, how to extract the good from them because there is good in some disputes, not surprising to know and also how perhaps we can resolve using a whole variety of techniques including for the purposes of this, mediation.
Brian Hutchinson (05:05):
But of course, to understand mediation and context, we need to see how it fits in with the other kinds of disputes and dispute resolution processes that exist. So what’s really exciting for us in the context of this new diploma, is that not only is it a chance for us to explore disputes and to help the parties understand the choices they have in relation to disputes in new and exciting ways, but this is our first foray into real online learning and teaching, not the sort of perhaps webinar or seminar even like we’re encountering this evening, not just that but carefully structured, managed online, learning involving many resources, different exercises careful planning and self reflection and testing. And so so this is a marvellous thing as far as we’re concerned, because it allows us to reach new students and it allows us to reach new parts of the world.
Brian Hutchinson (06:18):
And it allows us to share our expertise and to learn from the expertise of those that we are dealing with in a much broader and perhaps in some respects, a more useful way as well. So this new diploma is open to lawyers. And non-lawyers, I say that as a professor from a law school, just in case you felt that you have to be a lawyer to do this programme, you do not, and it would be of interest to anybody really who works with our encounters disputes of all kinds, not just the ones that might end up in court, but the kind of things you might get in the workplace, the kind of thing you might get dealing with employees, the kind of thing that you might encounter in a partnership, or maybe even in a social context.
Brian Hutchinson (07:08):
And we believe that these are skills which are invaluable for both lawyers, of course, who deal with disputes on a regular basis, but who also plan for disputes and will also be of course the great value to those who are in the middle of them too. So this is a one year, but in your own time, online diploma with some live interaction, but much of it is done in one’s own time in this highly structured and organised. And it’s done to a very high standard. This diploma is recognised by the International Mediators Institute. We’ve no doubt that in time we will have other accreditation as well. So without more ado, really in relation to the diploma I’m very delighted to have this opportunity as I say to introduce it. And I hardly commended to anybody who’s interested, please don’t fail to contact us if you’re interested. Thank you very much.
Sabine Walsh (08:12):
Thanks. And yeah, it’s, it’s been, it’s been such an exciting process putting the diploma together and getting it to stages and in the time of this huge evolution in dispute resolution that we’re experiencing at the moment. So on that note, I’m going to throw out our first question to you. And I think I might obviously I’m going to ask all of you to give me your individual responses. And I’m going to ask Mr. Justice David Barniville, maybe to give us his take on this first that is that the two big themes of the last 12 at this stage, probably 18 months, maybe a little bit longer have the pandemic and Brexit. How would you think, or in your experience, how do you see this impacting on the dispute resolution landscape in Ireland?
Mr Justice David Barniville (09:05):
Well, I suppose I’d start with with COVID and with the pandemic because it’s something that has dominated the litigation and dominated the dispute resolution scene here over the last 12 months when COVID hits this country in March it’s had a major impact both on how we do cases, how we hear cases and the types of cases that we hear. And it has given rise to a whole load of different new types of cases that we haven’t experienced before. And if I deal firstly, with how we’ve dealt with them effectively from March, 2020, it has not been possible to have cases heard in the way they were heard in the past. And since then, it depends on that, that the court level. And it depends on the type of list you’re talking about, but in the court that I’m familiar with, which is the commercial court there, hasn’t been a physical hearing since March, 2020 with very, very limited exceptions.
Mr Justice David Barniville (10:14):
Everything has now proceeded everything has proceeded remotely and that has included witness actions, applications, and all of the types of cases that come before the commercial court. And we had no real experience in dealing with remote hearings before March, 2020. And we therefore had to move extremely quickly, both the courts, practitioners and the court service, and the judges had to move extremely quickly to try to accommodate remote hearings and to try to ensure that justice could be continued to be done during the pandemic. We were fortunate to be able to do that fairly quickly. Other courts and other court lists had more difficulty in doing so. And I suppose in the early days, there were a big problems with both the technology and with the fact that there was an absence of a strong legislative backing for remote hearings, both of those things have improved since then.
Mr Justice David Barniville (11:30):
We’ve become better at the technology. The technology has become better. We’ve got experience with new types of remote hearing platforms. And we also now have legislation from last summer that gives the court the power to direct remote hearings of cases, even where the parties object to remote hearings. And there were a number of occasions where parties would simply object to remote, remote hearing for various reasons, but it’s meant that we have been able to proceed now to hear trials remotely. And so cases involving witnesses who could be appearing from all over the world can now take place on a fully on a fully remote basis. And that’s been an enormous change to the way litigation has been conducted in, in this in this country. There’s going to be, I know a discussion later on as to generally the impact of technology, and I might come back to that.
Mr Justice David Barniville (12:30):
So the pandemic has had a radical effect in how cases are determined and in our courts at all levels. The one I’m most familiar with, obviously it’s the high court commercial list, Brexit, if you’d like to, just to say something very briefly then on the Brexit front we we’ve particularly in the commercial court, we have noticed over the last few years, an increasing number of cases that have a very significant commercial, sorry, a very significant international dimension to them. And they are across a very broad range of, of commercial areas and they include regular commercial contract disputes but all sorts of other types of areas, corporate insolvency, and restructuring. And we’ve seen a massive increase in those types of cases, almost all of which have a significant international dimension. And we’ve seen, for example, the Maydoff case has been heard here.
Mr Justice David Barniville (13:30):
We’ve seen cases involving large Russian entities being involved here. We’ve seen restructuring of major international commercial airlines and the aircraft companies such as the Norwegian air and major patent and intellectual property litigation. But I do think that Brexit has been quite a significant quite as significant encouragement to people to litigate their cases here when in the past, they may have litigated them elsewhere. Now, Eileen and Brian would probably have more direct experience in what the clients and what others think about about this. But it seems to me that Brexit is only going to increase that trend. And so it’s only going to increase the number of cases with an international dimension that we’re seeing because Ireland would be English speaking, common law, the only sole common law jurisdiction left in the EU with all of the advantages that that has such as ease of recognition and enforcement of judgments, a familiar type of jurisdiction if you’re American, or if you’re from some of the other common law jurisdictions that we, we, we we, we encounter and I should just briefly mentioned the, the government has a project called Ireland for law, which involves the judiciary, the legal profession, and lots of government departments, the aim of which chaired by John Bruton and the aim of which is to promote Ireland does a centre for legal work and including for a international dispute dispute resolution.
Mr Justice David Barniville (14:58):
So those two areas, really that’s how I suppose I’ve encountered them over the course of the last year, both the pandemic and the real the real changes that has introduced and Brexit leading to, you know, increasing international work coming into our courts.
Sabine Walsh (15:16):
Brilliant. Thank you. I’m going to pass the same question on to Eileen Roberts. I think Mr. Justice Barniville has already indicated you might have a, a different perspective or a similar perspective on a recent developments. So over to you, what how, how have these big two events impacted on your professional role and the dispute resolution landscape from your perspective?
Eileen Roberts (15:41):
Thanks Sabine. And I’ll, I’ll hasten to say that judge Barniville has stolen all my good lines, but I, but I will I will give probably a practitioner’s perspective which, which I hope will be slightly different. And I think there’s no doubt that the pandemic was just an enormous change for everyone both, both our clients and, and indeed the way that we deliver our own services. I think the initial, the initial reaction was very much for lots of work around things like force majeure clauses, and did people have to actually do things or was this going to be a great excuse for them to get out of contracts and, you know, quite a bit of early litigation around insurance claims people obviously finding their businesses were now closed. They were under severe financial pressure.
Eileen Roberts (16:40):
So we would have seen quite an amount of those types of disputes. We’d have seen a lot of property-related disputes particularly on the landlord and tenant side, again, just directly relating to closures and, what was happening in the economy. Very much so the construction sector was quite badly hit at lots of interesting questions around delays and timings and penalty, clauses, and contracts. And we also saw a, quite a lot of corporate disputes and earn outs and various other types of things that were directly affected by the fact that the economy basically came to a close and very significant for some times where supplier types disputes. And of course, they were only exacerbated by Brexit issues then, which were happening at the same time. And I think it is of huge credit to the Irish judiciary. And, and judge Barniville is a leading light in this, but it was a huge credit on huge importance to the practitioner community in Ireland that the courts were able to remain open for business, even if it was on a slow enough start.
Eileen Roberts (17:59):
And then working its way up and that I think was, was enormously important for the resolution of disputes and because while mediation and all sorts of alternative disputes work perfectly, there is nothing like having an, a functioning court system to keep everyone on track and between the tram lines. And I think it was incredibly important that that happened. Now. I found myself after almost 30 years hardly being able to enter an appearance in proceedings because I didn’t know how to do it in a pandemic times. So we all had to relearn to do even the most basic of things. But because the courts kept working and we were able to keep servicing our clients and keep the show on the road basically and we all learned, and at one stage we had we, we might have barristers in, in a room with us when we were allowed to certain points during the year, we would have to put a photograph of the judge over the particular point where we were supposed to be looking at them with all the cameras in the room and so on.
Eileen Roberts (19:15):
So, so lots of learnings from, from everyone. But it was extraordinary. We managed to run quite complicated motions and cases. And we had clients international clients. We had US clients, they were joining the commercial court lines. It was five o’clock in the morning, their time. It was 11 o’clock in the morning here, but, you know, we just got on with it. And and I think that was, that was hugely important. And ironically, it was a very, very busy period for disputes. There was no let up in the amount of disputes and from an alternative dispute point of view, we did mediations on the phone and I saw lots of kitchens around rural Ireland with people who, you know, didn’t really know what button to press and how to get in and out of different mediation rooms, but, you know, extraordinarily and necessity is the mother of invention, as they say on things actually did get sorted.
Eileen Roberts (20:20):
And just in terms of Brexit briefly then on that, I think, you know, we haven’t really seen the full impact at all of Brexit yet, but in terms of, in terms of, from a practical perspective, obviously lots of clients now really looking at those clauses at the back of agreements that normally never get looked at. So the jurisdiction clause is the choice of law clauses. Really important. The service provisions clause is really important. And, and really, I think what we’ve done as litigators is quite, it’s been quite a bit of time with our corporate colleagues saying to them, you are the people who are drafting these agreements. It’s important that people understand from an enforcement of judgments, point of view. Ireland has all of the advantages and benefits of being able to enforce judgments throughout Europe and for our English clients. And that can be very important to them and sometimes more important than having the match on their home turf, if you like. And particularly when they’re, you know, as I was justice Barniville said, this is, this is a common law jurisdiction with all of the familiarity that that brings for for people used to do those jurisdictions. So certainly it’s been a, it’s been an interesting, it’s been an interesting 18 months but lots and lots of disputes, and we’re still managing to resolve them albeit slightly differently
Sabine Walsh (21:45):
And passing the question on to Brian in your perspective,
Brian Hutchinson (21:51):
I would say that both of these things, pandemic and Brexit are mirrors and accelerators, and they’re mirrors allowing us to reflect on how we’ve done things before and maybe how we can do things differently. And for that reason they are accelerators of change. You know, specifically they both see a whole range of new disputes and, you know, as lawyers, we can easily say, there’s lots more non-performance issues there’s lots more business stress issues. There’s certainly a lot more non-delivery non-payment, regulatory complication, all of those things. And, you know we’re well equipped as lawyers to deal with the legal side of those things. But I think what’s changed in disputes is, you know, there’s a new inertia new fears amongst people whether it is in whether they will engage in new activities or new markets or take up new opportunities there are new uncertainty, there’s new stresses there’s different expectations.
Brian Hutchinson (22:55):
And there’s also sort of new communications. I, you know, the way in which people engage post pandemic is, is quite different, I think will be quite different from that one. And these are new aspects to disputes, which will not only make new disputes more complex. But also of course which requires to reflect differently on how we might deal with them. And I don’t just mean that necessarily there, there is, and there will be a growth in cross border complex disputes because there will be in Brexit will perhaps make Ireland that place are certainly a place of choice and for resolution of these things, but many of these stresses and many of these developments, you know, we recognise them ourselves in the workplace, in the family environment and the social environment, et cetera. So all of these developments I think in the first place help us to reflect a little bit more and also perhaps open us up to new opportunities and new expectations.
Brian Hutchinson (24:00):
They also particularly, I suppose, expose challenges and opportunities with dispute resolution per se. So the idea of remote hearings, for example we now know that they’re both possible effective and and here to stay, I think and the idea of remote mediations certainly here to stay, I would think, and, you know, the context of which you find ourselves now sort of makes it appear to us that it’s not really a question anymore of what’s the best way to resolve a dispute. It’s nowadays a question of what’s what’s the appropriate way and how do we know what’s appropriate? And you know, as I said earlier on what sort of choices do we have in relation to a dispute when it arises? So, you know, the pandemic and Brexit are both sort of introducing us to the idea that we will have new disputes, new participants, new issues and I think also new processes and we meet to, and that’s where I see particularly those two things influencing the dispute resolution landscape in Ireland.
Brian Hutchinson (25:24):
There is I mean, details that can be added to those points. Brexit in particular, I think has a long way to run and we saw even in March that the European commission has sort of recommended against the UK joining the Lugano convention, for example, which means that it’s always going to be different when you litigate in the UK anymore, and always going to be different when you do business in the UK versus here anymore. And you know, this, this creates challenges for, for our island as much as opportunities for Ireland. But I will say there’s never been a time like now to you know, to take some of these issues by the horns and to you know, to make positive steps towards the future of dispute resolution.
Sabine Walsh (26:19):
Thank you. I mean, between the three of you, you’ve raised a lot of interesting points there in terms of both the, I suppose, the workload that has, is still building up and is going to build up, particularly in terms of, of Brexit and I suppose, unwinding all the knots that the pandemic has created in business terms and insurance terms. I presume that’s going to play itself out over a long time. Not least now, as people would go back into the workplace or don’t go back to the workplace or don’t want to go back into the workplace. And I suppose the next question then, which I’m going to ask, which is around technology is sort of a little bit of a look into the future and kind of raises the question of what, you know, w what of these developments will fade away and which will continue into the future. And in particular, and I might ask this question to, to Eileen first and, and it made me smile because they brought me back to my apprenticeship days and just slipped the called them. And those days when I was learning to be a lawyer, and I had to learn how to enter an appearance, which involves physically walking to Sligo courthouse first. So I might pose the question to you that as you know, beyond this immediate crisis, what role do you see technology play in legal practice and dispute resolution going forward?
Eileen Roberts (27:43):
I think technology, I mean, we have the last 18 months has really extraordinarily accelerations, the use of technology and the, the sense of reliance on technology. So, although I, I do dearly miss a lot of the physical contact with people, and I don’t think you can ever get rid of that. And I don’t think technology ever replaces it entirely. I do certainly see that there are a huge amount of efficiencies in technology. So I suspect on, judge Barniville may well talk about this later, but I suspect that there are aspects of remote court’s work that may continue. And certainly if you’re a country solicitor, and you don’t have to come up to the courtroom for relatively routine applications, there’s a real benefit to that. So am I, I’m starting to think that that will, that, that will continue. I think even you know, specialist tribunals like the tax appeals commission, they now have a remote platform and can hear cases at that may continue.
Eileen Roberts (28:55):
And the central bank are now doing fitness and probity interviews over zoom. There are all sorts of witness interviews taking place. So there’s a, there’s a huge amount of litigation and disputes if you like in the broader sense that, that, that, that that’s now got a familiarity with. I do think we’ve a way to go. I think technology only works if every part of the system is up to speed and, and we don’t necessarily have every part of the system up to speed. So there is a, there is a way to go, but how we brief counsel, how we, eh, give papers to the court, all of that I think is, is changed forever in terms of technology and efficiencies. So yes, I, I think, and even how we, you know, collaborate with clients on information and so on now all done because of Brexit or because of the COVID, we’ve had to do it. And I think that’s going to continue
Sabine Walsh (29:56):
Judge Barniville then from your perspective again, you know, what do you think is going to continue? And maybe you could tell us a little bit about the online arbitration cause that’s a, that’s a new project, I think.
Mr Justice David Barniville (30:09):
Yeah. Well, I might come back to that in a sec, in a second date in terms of how technology will, will operate in the future. And if I just go back to, when we first started talking about remote trials, people were aghast that you would consider having a trial with witnesses, dealt with remotely. A lot of people had real worries about, about that. And how would a judge be able to assess the credibility of a witness when the witness was at the far end of the screen, and how would you be, how would you be sure that the witness wasn’t being prompted by somebody behind there, you know, behind the camera, with which you couldn’t see? In fact, I think most of those concerns turned out to be completely groundless. And once people got some experience doing them, they realise that really there’s very, very little difference between doing a trial remotely with a good remote hearing platform and doing it in person.
Mr Justice David Barniville (31:06):
And indeed some judges take the view that they are even better able to assess the credibility and the, you know, whether a witness is telling the truth or otherwise, by seeing that witness close up on the screen, rather than at some distance in a courtroom, when some of these older courtrooms, you could be a good, a good bit away from the, from the witness. So I think most of the concerns people had were, were turned out to be groundless and people have a bit more confidence in them. So we are going to see at the continued use of remote technology, and there is the competing, I think there’s the competing pool of people to return to some elements of physical hearings in most people enjoy doing physical hearings more than they enjoy doing hearings in front of a screen. I certainly do. And I think most practitioners do it.
Mr Justice David Barniville (31:59):
It’s certainly convenient for people to do on the screen. They can get probably a lot more done than they would do if they had to physically move from court to court and so on. Whereas if they just have to stay up there at their desk and they just turn to a different screen or turn to a different and remote hearing room that can get a lot done. But, but I do think there will be a demand to return to physical hearing of some cases as soon as the public health situation allows us. And I think what we’re going to see is the retention of technology in some areas, but we’re going to see a lot of what we’ve, we’re calling hybrid hearings. I think the remote hearings will continue for things like motion lists for applications, for directions, for call overs. I see very little prospect of us returning in the near future, at least to a situation where you’ve got hundreds of lawyers in one courtroom doing motion lists or doing a call over.
Mr Justice David Barniville (32:57):
I just don’t think that’s going to happen, particularly with the, some of the emerging evidence about the risk of transmission, of COVID in with that in the absence of ventilation and the possibility of aerosol transmission and those those situations. So I don’t think we’re going to see call overs or motion lists as we did in the past. And they’re very likely, I think, to remain for the foreseeable future done remotely. I do think we’re going to see some return to physical witness actions. In some cases, if they don’t, they don’t suit themselves as well to remove a remote hearing, whether it’s because of the people involved because of the technology involved, for example, personal injuries cases, there have been personal injuries cases heard remotely. Some of them have worked extremely well, but there is just a reluctance, I think on the part of practitioners appliance and a parties, and some judges doing those sorts of cases, remotely, obviously criminal cases can’t really be dealt with remotely except perhaps taking some remote witnesses.
Mr Justice David Barniville (33:56):
So I do think we’re going to have some cases returning more to physical in-person hearings, and we’re going to have more hybrid hearings where part of the case may be dealt with physically. Part of the case will be dealt with remotely. For example, expert witnesses. That’s very likely in most cases, experts will give their evidence remotely in, in, in cases. And it may well be, it there’d be other witnesses giving their evidence remotely. It may be that you’ll have one legal team may be in court. The other, maybe if they’re from outside Dublin and they don’t wish to travel to Dublin, they may be doing it remotely. And the court service has spent I think a vast amount of money in updating the technology and updating the courtroom technology to convert courthouses around the country to to technology courts. So I think we’d be naive to think that there won’t be a strong desire to ensure that that expenditure is completely wasted.
Mr Justice David Barniville (34:48):
So we are going to see technology playing a really, really significant role, even when the immediate public health situation improves. There was a lot more, I think though, that we probably could do and we could follow the lead of some jurisdictions around the world, which have gone away from paper. They’ve gone to paperless courts. Now, some of us aren’t desperate, they’re comfortable working entirely paperless, and we still prefer to get at least the core documents in a case in paper form. But there, there, I don’t, I don’t think it’s I don’t think it’s unrealistic to think that in the next five years in this jurisdiction, we’re going to find far more cases being done on a paperless basis. And some of us are just going to probably have to get to get used to that. I’ll conclude this section by, and, you know, I’d been talking up the technology and so on and saying all is great.
Mr Justice David Barniville (35:42):
When I started speaking this evening, my screen certainly in front of me froze me. So that’s why I wasn’t sure whether people could see me, but myself and the other judges in the commercial court gave a talk recently to the commercial litigation association of our, that Eileen was possibly participating on. And one by one, each of us dropped off the hearing as a result of technology problems in our, in our chambers. Each of the four of us dropped off at one point. So despite the best will in the world, and despite all of the expenditure on technology, it’s still not terribly dependable at all times. And you still have people dropping off, including in that case, all of the judges from the commercial court dropping off at one stage during that seminar. Now we all managed to get back on and I suppose we didn’t miss a huge amount in the end, but let’s still, it does show you that, you know, it’s not perfect. It won’t be perfect, but I presume it’s improving. And I hope it’s improving
Sabine Walsh (36:36):
Brian Long before the pandemic ever came in all and bounced everybody into technology, whether they liked it or not. You actually voluntarily chose to be very active in the area of technology and ODR. So give us your perspective from, from that angle.
Brian Hutchinson (36:51):
First I hope judge Barniville won’t mind when I say that the idea of judges dropping off is you know, as well-documented in Victorian times as well, but that was a different a different kind of dropping off. Yes, I have been interested in technology and dispute resolution for going on maybe 25 years now. And you know, until recently the suggestion that you know, we could be using technology more than dispute resolution was kind of like suggesting to the kids that they do their homework in front of the telly. And I don’t suggest that but at least what we have found is that people’s understanding of communications technology has, has changed. I think that universally what has interested me in the field actually is not it’s not even that but more how we can better leverage technology full stop in dispute resolution.
Brian Hutchinson (37:49):
And so in the, in the network that that I participate in, where we work with you know, people from technology companies and online payment to providers and as well as court services and and future thinkers, you know, for a while we’ve been exorcising, the idea of the use of big data assisted decision-making and artificial intelligence and perhaps simpler maybe even psychological systems for helping people to, to manage potential disputes, to avoid potential disputes and maybe more efficiently to resolve potential disputes. So going away beyond necessarily a formal decision-making processes where, you know, you would be presenting your case and your evidence and your argument before a decision maker. We might deal with situations where we could perhaps become better negotiators because of assisted technology. We might become better mediators because of the use of information technology.
Brian Hutchinson (39:02):
And you know, to some degree, some of this seems a little far off but the reality is that you know, a large number of United States courts for example, would make their sentencing decisions based upon the computer information. A large number of commercial operations would make decisions in relation to your customer complaints take Amazon, for example, to make those secrets based upon data of the number of people who have similar complaints the number of times you’ve made such complaint to them in the past, et cetera, et cetera. And we can’t we can’t pretend that these things aren’t there and really, I suppose the challenge for academics and thinkers in this area is where we find justice with technology in the future. And that requires us to navel gaze on what is justice.
Brian Hutchinson (40:01):
And I know we’ve only got a short amount of time left this evening. But you might wonder a little bit more about what is justice in a digital age. And I strongly feel that the, you know, the job of academics and thinkers in this area is to provide a sort of a road map for justice and how it can then better leverage technology because it will happen anyway. And if it happens and things are taken away from a just environment as can very easily happen that’s not a good thing.
Sabine Walsh (40:37):
So you, you’ve already kind of, I suppose, Brian put some flags and some of the things that people working in the space of dispute resolution of, of law of justice, even in the broadest possible sense are going to have to think about and address and be mindful of going forward. And, and that in turn, then I think maybe signalled some changes in how we all are going to work and learn and study as well. So it kind of leads me to the next question really, which, and I might pose this back to judge Barniville first is what advice would you have based on what we’ve discussed based on the huge change in terms of the types of disputes, the increase of disputes, the way we’re going about resolving them, the increase in technology, what, you know, what advice do you have for current and future resolution practitioners at every level, be they in the justice system or people who are in a construction company dealing with you know, the fact that all their contracts are falling apart where should they begin?
Mr Justice David Barniville (41:48):
Enormous question Sabine, and I’m totally incompetent to even attempt to answer it. But I thought I had an answer, which is the first thing, everybody who is either in a dispute or likely to get into a dispute is to learn how to operate the technology for the particular and procedure that’s going to ultimately resolve their dispute, but that’s perhaps a bit lib. They think you do. We will find wherever the dispute arises and wherever, whatever the forum that’s going to resolve that dispute, whether it’s mediation, whether it’s arbitration, whether it’s in the courts, there’s going to be a huge remote element in all of those areas. And as Brian says, we’re probably going to see increasing use of, of online dispute resolution use of artificial intelligence where we’re not we’re sort of a little bit behind all of that here.
Mr Justice David Barniville (42:41):
So and I’m not particularly clued in, I’ve obviously I’ve read some about, and I’ve heard talks and so on about it, but that’s a little bit ahead of our, I mean, it’s for, for thinkers like Brian, rather than those at the moment who are trying to struggle with increasing backlogs of cases. So I’m not really, I don’t really have the space in my head anymore to be forward thinking forward thinking I’m afraid. But one of the things I did want to say when, when you asked about you know, advice for dispute resolution practitioners and, and advice for people and that is it’s the, and it may be a very basic point and it’s possibly off the general team of this seminar, but the one thing that really annoys all judges, and certainly all the judges I’ve spoken to is aggressive correspondence between participants in a dispute, whether it’s the lawyers with primarily the lawyers that I’m talking about in cars, the most annoying thing to read is correspondence in which each side is to, is them taking lumps off each other and making gratuitously aggressive points and, and, and offensive statements and correspondence.
Mr Justice David Barniville (43:49):
Most judges don’t want to see that. In fact, most judges look at that and they just put that in the floor. That’s utterly irrelevant. So I think trying to encourage as best company to and this has actually worked quite well in the, in the remote in, in the remote era. And now that we’re in, it’s encouraged more cooperation generally between parties and between opposing lawyers, because I have to, if the thing is to work, they have to cooperate more. And I, I would like to see that, that spirit extending beyond the actual cooperation on the technology into a bit more cooperation in terms of the, the correspondence and substance of the dispute itself, there’s nothing that annoys the judge more than seeing that kind of correspondence and more and more actually see it now referred to in judgments, criticised in judgements, concluding by, by a number of my colleagues and by myself now, because it’s a total waste of time.
Mr Justice David Barniville (44:40):
It’s getting nowhere, it’s not impressing anybody. It may perhaps impress the clients, the client may perhaps, and I’m sure Eileen we’ll confirm this. The client may like to see aggressive correspondence going by their lawyers to the other side. They may think it’s achieving something, but generally it doesn’t. In fact, it, I think it’s counterproductive most of the time. So I I’m, there may well be two streams of correspondence. There’s the correspondence that the court sees, which is the very aggressive correspondence sometimes on there may be the more, and co-operative correspondence on a, without prejudice basis that seeking to set up a resolution of the dispute, but courts are the courts now are very encouraging of parties to resolve their disputes. I mean, I’m regularly saying, as Eileen will know regularly saying in cases that come to the commercial list, look, this looks like a case that should go, it should be capable of being dealt with that mediation, have the parties considered that many cases, they have considered as many cases, they just need another push to do it. And you’re pushing an open door and they’re quite happy once the judge has made a comment to go back and say, look, can we can, we can resume our consideration of this. Now we’ve got a bit of a kick from the judge on us, and sometimes that’s all it needs, but that is something I think that there should really be even more focused on in the future. It is trying to resolve many of these tricky cases at an earlier stage, ideally by, by mediation or some other form of a dispute, a dispute resolution process.
Sabine Walsh (46:09):
Yeah, it, it, it’s interesting because in that one example that you’ve actually touched on, I think the other big change that’s happening irrespective of the pandemic and Brexit is that there’s a new type of lawyering kind of gradually emerging. I think I was yesterday evening was coaching a team from the Law Society of Ireland who were going off to participate in a negotiation competition with many, many other law students from all over the world where they’re learning before they ever hit the office, if you like to become collaborative and cooperative. And as you say, you know with backlogged, court lists, and then the additional complications may be of technology that adversarial style just doesn’t really seem to fit as well as maybe it did a number of decades ago. I mean,
Mr Justice David Barniville (47:08):
I should have made very clear that I’ve never seen that kind of correspondence from Eileen and I want to make that absolutely clear,
Sabine Walsh (47:17):
Well, I was just going to hand over to Eileen and give her the opportunity actually to to, to verify what you have just said. So Eileen, what is your perspective on that I’m particularly terms of your interactions with colleagues and other practitioners.
Eileen Roberts (47:34):
Yeah. I was very glad for that clarification at the end judge Barniville but, the I think, I mean my sort of advice for, for, for practitioners, I mean, if ever we’ve needed to to understand the importance of being adaptable and nimble, we’ve learned it in the last period of time. I don’t think there are many jobs that have changed as much in certainly my career as, as the law has. And, I think one of the law will remain static, how it’s administered and how people get access to it and, and use it is definitely different. I suppose I don’t know what the age profile of people on this call, but I have a particular concern and sympathy for younger practitioners, younger lawyers who have, you know, come through the last 18 months. I think it has been extremely difficult for those practitioners who are at that early stage of their career, certainly in our own office, we found that those are the people that we are most concerned about because they’re starting out on they and they need that.
Eileen Roberts (48:46):
And, you know, physical co-location with, with, with more senior people. So what I would say to those people is don’t lose heart and don’t give up and just, you know, things will get better. It is incredibly important as a litigator that you remain a collaborative person and the legal market is small. The litigation market is smaller. Still. One of the things I’ve missed during the year has been the amount of physical contact over and back with colleagues. And that is vitally important if we’re going to resolve disputes. So I do feel that we have to make sure that technology doesn’t replace that. And in many ways, when you end up before judge Barniville with your case, there’s been some level of failure all around because we haven’t managed to resolve this and come before him. And I, and I do think that that his words are very wise on that.
Eileen Roberts (49:40):
And, you know, a big part of our job is actually to keep clients out of court rather than, rather than bringing them in. Sometimes you have to, and, you know, you need a legal judgement for some reason, or you, you just can’t resolve it. And that is fine, but I think good practitioners will always be trying to be focused on the solution rather than, you know a slagging match that ends up where nobody, nobody wins really. So I think that would be my advice to stay nimble and stay closely connected to your, your colleagues. And just don’t give up if you’re, if you’ve hit COVID at the wrong time and you’re at the early stage of your life,
Sabine Walsh (50:22):
Brilliant then as an educator of, of these the practitioners of the present and the future, I suppose. I I’d give you the last word on this.
Brian Hutchinson (50:32):
Thank you very much. And I was going to echo the comments of of the previous two speakers just by referring, referring to the Kings Inns where, you know, the tradition, the original tradition by dining with your with your seniors and and with your peers. So I agree that you know, human engagement is extremely important and in fact, all disputes, we sometimes forget all disputes are between people, between companies. You know, they, they have a human element and human skills are tremendously important, I think for anybody involved in disputes whether they are in the middle of it, whether they’re on the periphery, whether they’re advising or even when they’re planning for them. And it’s helpful to have perhaps a number of different concepts surrounding the idea of a dispute.
Brian Hutchinson (51:31):
We’re here as dispute resolvers, but in fact, if we looked at it a little more in a little more detail many lawyers would be involved in planning for disputes rather than necessarily resolving. And when it comes to planning, you might be looking at avoiding, avoiding disputes. But of course I like to say to my students, you know, if you try to avoid all disputes, you’re going to get into more trouble. It’s not necessarily a good thing. What we need to do is to avoid disputes becoming dysfunctional. There’s management. So there’s managing disputes that arise, and that maybe are not essentially resolved straight away. There’s transforming disputes if you take the north of Ireland and and how the dispute there, which hasn’t gone away has been transformed through the intervention of dispute resolvers. There’s all of those concepts on top of of resolution and to be able to identify what it is we want in any given situation, if we’re planning or designing for disputes are you know, when we’re brought in as resolvers to see how best we might resolve it involves having some skills of dispute analysis.
Brian Hutchinson (52:42):
How do you analyse a dispute to know whether it’s good, bad trouble, going to go away, worth investing in worth not investing in et cetera dispute analysis, I think skills are key, key for those of us at the resolution and key for those of us at the planning end key for those of us as disputants, potential disputants going forward. I think everybody honestly can benefit from having some dispute analysis fields. And of course, once you have dispute analysis skills. Then there’s the question of, well, now that I able to analyse this dispute potentially or otherwise and have some idea about what could go wrong or what could go right, or how we could go back, how do we achieve that? So our knowledge of dispute resolution techniques, I think is very, very helpful as well, whether you’re ever going to be the person who delivers those techniques as a mediator and arbitrator or a judge an advisor is kind of a secondary question because the participants themselves can be empowered to make better decisions around their disputes if they have knowledge of those techniques as well.
Brian Hutchinson (53:53):
So I would say one of the marvellous things about, you know, talking at this time in humankind is that we’ve never been better equipped for those kinds of analyses and those kinds of skills. And you know, speaking as a lawyer, it might sound off for me to say it, but psychology, sociology, anthropology, statistics, technology, and all those things have converged to, you know, to help us better than ever as a, as ordinary people, even to be able to form a better balanced picture of disputes and how to manage, avoid, resolve, transform them. And of course that sort of knowledge is power. And I think ultimately leads to a better world. Doesn’t that sound very hip!
Sabine Walsh (54:43):
I, I think he’s really given a good overview of our collective viewers and as a Mediator Academy, our motivation to create a new kind of programme that helps people to develop and practise and hone those skills, whether they’re a lawyer who’s been in practice for 30 years, or, you know, someone who maybe wants to get into disputes systems design, or technology, or learn more about, you know, how litigation analytics is going to change their practice and practice as a litigator in the future. So and I don’t know about anybody else, but I could start to listen to Brian talking for ages. So if, if you want to listen to Brian talking a little bit more, he is of course, the programme director of the new diploma in UCD. It’s a shame. We don’t have another hour because I certainly have many more questions. And we’d like to hear a lot more of your different perspectives. It’s, it’s a real breath of fresh air to hear about all the innovation that’s been happening, how resilient and responsive I think the justice system is here as embodied by you know, the judiciary, the practitioners and the academics. So on behalf of us all and all our participants, our heartiest, thanks to you and judge Barniville to you, Eileen to you, Brian.
So thanks to everyone have a lovely evening and goodbye.