Mediation….Effective Dispute Resolution For Businesses

26th June 2017 Resolution Centre

The Bar of Northern Ireland will open the region’s first bespoke Mediation Centre in Belfast later this year, offering professional mediation services for dispute resolution for the first time. Three leading local barristers, Michael Humphreys QC, Lee Brown BL and Stephen Quinn QC, talk to Business Eye about the new Mediation Centre and what it can bring to the local legal marketplace.

RB – What is the timescale for the new Mediation Centre?

MH – The premises will be ready very soon. We would like to be open by the middle of May, to coincide with the IBA (International Bar Association) Conference being held in Belfast and fully operational from September onwards.

RB – And what’s the background and rationale behind the Centre?

MH – Mediation has risen in popularity over the past decade or so. We’ve watched with interest as dispute resolution centres have opened in London, Dublin and elsewhere. So we’ve looked at the best of these centres with a view to designing the right solution for Northern Ireland. Whilst mediation services has been available for some time, we have always been missing a dedicated venue instead of alternatives such as hotels.

LB – It is a very impressive centre on the fifth floor of one of Belfast’s landmark buildings – The Boat – a tremendous location and an impressive place to do business. It also provides confidentiality. When you’re at the courts, people know you’re at the courts and are there for an obvious reason. Mediation in a centre like this can be carried out behind closed doors, and that is a big advantage, for businesses and for the family law clients I work with on a daily basis. Family mediation in particular is going to grow rapidly.

MH – The other area of potential on the business front is for employment disputes, which can be settled through mediation rather than going through expensive tribunal proceedings. But it all depends on having the right facilities and on having professionals to conduct the mediation. In the Bar, and amongst solicitors, there are quite a number of lawyers who are accredited as mediators and this centre gives them somewhere to ply their trade.

RB – What are the important factors for business clients? Cost saving is an obvious one, but what else?

MH – The time factor is critical. If you want to take a commercial case through court, it will take a few months at the very least, possibly longer. And cost is another major factor. Litigation can be expensive and there is no way of getting around that. Companies can shy away from litigation, even if they’ve got a good case, because of the potential cost implications. Mediation can be both quick and cost effective. And it’s also hermetically sealed in that anything said in mediation goes no further. It cannot even be used in court if a case goes that far. So the confidentiality is total, and participants can be completely frank and open.

LB – For us, a further important factor is the environment. Through the centre, we are creating the ideal space, designed with mediation in mind, to enable the parties to find a suitable resolution.

SQ – Making concessions is difficult for people in business because they don’t know where a concession will lead. So, in mediation, both sides can make concessions and get to the point of the dispute very quickly and confidentially.

MH – Some areas of commercial law are ideally suited to it. Family business disputes, shareholder or contractual disputes….those kind of things. It is always much more effective if the sides can bring their own solutions to the table. In court, the only result is that a judge imposes his or her solution. That can mean that both sides leave unhappy. With a mediated outcome, it is much more likely that they’ll feel as though it is their own solution and be more content with the outcome.

LB – The same applies for families. If the solution to a dispute comes through mediation, people tend to feel happier and more comfortable with it. For instance, if people are going to have to co-parent for a few years, it is best that an agreement is reached by talking and not imposed by a court. In fact, the courts are actively encouraging people to try to reach their own solutions in family situations.

RB – So everyone is behind the idea…..lawyers, courts, judges?

MH – There are very few disputes where it would not be worth at least considering mediation as an option. There will be some that cannot be resolved that way, but that doesn’t mean that it’s not worth trying. Years ago, a minority of cases would have gone to mediation. Nowadays it is the very much the reverse and this is the experience from lawyers, the courts and businesses themselves.

SQ – If we bear in mind that this relates to civil law. Most cases are usually settled, but mediation might not be settled cost effectively. Mediation means that we can avoid costs associated with litigation such as professional witnesses and accountancy.

RB – Is there an education process around the new Centre?

MH – Undoubtedly most people still regard the courts as their only option in resolving a dispute and we will certainly be working to inform the potential users of the potential benefits for them. One of our main messages is that mediation is open to everyone, even those who do not have legal representation. It is for every level of dispute.

LB – And it can be signposted and recommended by anyone, including the courts themselves who have been active in steering parties towards mediation as a means of resolving disputes.

SQ – There has been a sea change around costs. We’ve seen a big increase across the board in court fees. So, even at the most fundamental level, bringing a case to court now is even more expensive than it used to be.

MH – At the same time, legal aid is much less available than it used to be. So mediation represents a real alternative without the risk of accruing a large bill. It also provides a unique means of providing access to justice, which is something that successive governments have supported as a concept.

RB – This is an investment by the Bar Council. Are you confidence that it’s a good one?

MH – The centre represents a new venture for us, of course, and it’s not our natural business model. But we’ve looked closely at the market, and we do think that there is a gap for a professional dispute resolution centre here. We’re confident that it is a very timely opportunity and we think that it has benefits for potential users as well as for our members and our solicitor colleagues. The new Centre is available and open to anyone who wants to mediate, including private individuals and other professionals.

SQ – In fact, rooms can be rented out on a day or half day basis. The Centre is designed as a series of suites of rooms with break out areas. So, each party to the dispute has a room each and the mediator has a separate area with the break out spaces used for discussions.

RB – Looking forward, what are your aspirations for the new Centre?

SQ – I would like the Centre to be recognised throughout Ireland as somewhere where a dispute can be settled without expensive and time-consuming court proceedings.

MH – We would like mediation on the menu of options offered to anyone with a dispute or issue which needs to be resolved. They should think of mediation as well as the legal alternatives. Mediation works effectively when the courts are there in the background. There almost needs to be the reality of a potential court alternative as a backdrop to mediation. If it doesn’t work, the court system will inevitably kick in.

SQ – In the mediations I have been involved in, that’s how it works. If a dispute cannot be settled in so many hours of mediation, everyone knows that it will end up in the High Court. Then the costs ramp up as does the gravity. That can be a good discipline and, in my experience, people are prepared to make concessions to make the dispute go away. People, after all, do not want to be in dispute – the worry, stress, sleepless nights, additional workloads and time away from the office are all factors to consider when pursuing a legal remedy.

MH – More widely, this is good for Northern Ireland generally. A functioning Mediation Centre is another positive when it comes to attract inward investors and further highlights the skills and services available in this jurisdiction.