Creeping compulsion to mediate, the Constitution and the Convention

Dr Ronán Feehily

The court backlog in some European countries has inspired the introduction of compulsory mediation schemes to deal with various commercial claims. My recent article in the Northern Ireland Legal Quarterly reviews the developing jurisprudence from various courts throughout Europe. In doing so, it assesses the seemingly relentless public policy move towards compulsory mediation and the implications that this has for commercial parties in dispute, lawyers involved in the process and the administration of justice in Europe. The potential that such an approach could amount to a violation of the rights guaranteed by Article 6(1) of the European Convention on Human Rights (ECHR), as enshrined within the European Convention on Human Rights Act 2003 (ECHR Act), and Article 40.3 of the Irish Constitution is analysed, and the article ultimately discusses the optimal approach for the courts and the legislature to follow to strike the appropriate balance between encouragement and compulsion.

Mediation is neither a new nor a novel concept in Ireland. Provision for mediation has been made in various pieces of Irish legislation over the past three decades. In the area of family law, solicitors are required to discuss with their clients the possibility of engaging in mediation as an alternative to litigation. Legislative provision for voluntary mediation has also been made to assist with a range of disputes between employers and employees, landlord and tenant disputes, personal injuries disputes and in the area of social inclusion. Judges sitting in the commercial division of the High Court possess the power to direct parties to consider mediation, and commercial contracts frequently provide that the parties must first attempt to mediate their disputes, prior to issuing court or arbitral proceedings. 

The most recent and most significant legislative initiative is the Mediation Act 2017 (the Act), which provides a legal framework for the use of mediation in civil and commercial disputes. The Act covers a range of issues, including the requirement that a mediator and the parties sign an agreement to mediate prior to the commencement of the mediation. The agreement deals with practicalities such as the manner in which the process will be conducted and the mediator’s fee. The agreement also delays proceedings under the Statute of Limitations until 30 days after the successful conclusion or unsuccessful termination of the mediation. One of the most significant provisions in the Act is that a court may, on application by a party to proceedings or of its own motion where it considers it appropriate to do so, invite the disputing parties to consider mediation to resolve their dispute. In circumstances where the parties decide to engage in mediation, to facilitate the use of the process the court may adjourn the proceedings or make an order extending the time for compliance by a party with the rules of the court or with any other court order. Consistent with the pre-existing position under the Rules of the Superior Courts, in an effort to encourage the use of mediation, the Act provides that a court may, where it considers it just to do so, take into account any unreasonable refusal or failure by a party to consider using mediation, or to attend mediation, when awarding costs in the proceedings. The article discusses that there can be a thin line between strong encouragement and compulsion, how this can be difficult to draw in practice and that consequently, with the threat of sanctions there is a risk that encouragement can look more like coercion.

While disputes are mediated in the ‘shadow of the law’, mediation is based on interests rather than rights and the consequent settlement agreement reached may be unrelated to the legal merits of the claim. The mediation process itself is not subject to fair trial requirements, and parties, particularly those that are not legally represented, will not necessarily be protected by the law or by the accountability afforded by a public judgment and an independent judiciary. Courts ensure public accountability for those whose wrongful acts may otherwise go unnoticed and provide protection for weaker parties who seek justice against those who exercise power over them. It is against this backdrop that Article 6(1) of the ECHR has a significant role in maintaining and upholding the important function of civil justice.

Irish courts have the benefit of developed jurisprudence from England, the European Court of Justice and the European Court of Human Rights in dealing with concerns that a compulsion to mediate infringes upon constitutional and ECHR Act rights of access to court, including the context where a party is subject to a costs sanction for an unreasonable refusal to mediate. This includes the benefit of learning from the mistakes made by the English Court of Appeal in Halsey v Milton Keynes NHS Trust. In this case, there was a misunderstanding regarding the clear distinction between the compulsion to initially engage in the process, at least in terms of attendance, and the voluntary nature of continued participation.

The article ultimately discusses the optimal approach for the courts and the legislature to follow in order to strike the appropriate balance between strong encouragement and coercive compulsion that would avoid offending constitutional and ECHR rights and foster a mediation culture. A balance must be struck by the Irish courts when imposing costs sanctions. Encouragement must be weighty enough to avoid being dismissed as a ‘mere bureaucratic hurdle’, but it must not be so strong as to amount to coercion and breach constitutional or ECHR Act rights. The legislative framework is now in place to foster the growth of commercial mediation in Ireland. It is important when introducing statutory mediation schemes that the legislature is cognisant of ensuring that any compulsory aspect comprises a compulsion to initially engage and that the parties are free to leave the process at any time. In order to ensure that such schemes do not constitute constraint, financial or otherwise, and fall foul of constitutional and ECHR Act rights of access to court, the compulsion to consider commercial mediation should only impose a short delay, providing the space within which informed parties may attempt to settle their dispute with the assistance of a trained mediator. Mediation must be presented as a condition precedent to litigation or arbitration, not as the only means of dispute resolution. Provided such schemes are in the general interest and proportionate, the principal of effective judicial protection will not preclude them.