The 16^th of November 2010 was a highly significant day for the advancement of Mediation in Ireland. The Law Reform Commission’s Report on Alternative Dispute Resolution: Mediation and Conciliation, was launched by the Chief Justice, Mr John Murray and on the same day the new High Court rules to promote mediation and conciliation in proceedings in the Superior Courts, which was launched by Dermot Ahern, T.D., came into effect. These rules were introduced following provisional recommendations from the Law Reform Commission in its Consultation Paper on Alternative Dispute Resolution (ADR).

The Law Reform Commissions’ Report  forms part of the Commission’s Third Programme of Law Reform 2008-2014, makes over 100 reform recommendations and also includes a draft Mediation and Conciliation Bill.

For full details see: http://www.lawreform.ie/news/report-on-alternative-dispute-resolution-mediation-and-conciliation.318.html

The new High Court rules provide for a mechanism similar to the type used successfully and extensively in the Commercial High Court proceedings since 2004, whereby a judge can order the parties to engage in ADR. The provisions specify that the refusal or failure without good reason of a party to participate in mediation or conciliation may be taken into account by the court when awarding costs

For details see: http://www.courts.ie/rules.nsf/SuperiorAmdLookup/No99-S.I.+No.+502+Of+2010:+Rules+Of+The+Superior+Courts+(Mediation+And+Conciliation)+2010

In her opening address to the recent MII Annual Conference, 6^th November, the MII president Karen Erwin called on Government Departments, local government, state agencies and semi state bodies to introduce with immediate effect, a policy that mediation be actively and positively considered as the default position for dispute resolution. She highlighted the resulting savings which could be made which echoes recommendations made by Mr Colm McCarthy and the An Bord Snip Nua Report and others.

For full details see: http://www.themii.ie/full-article.jsp?id_news=205

These developments go towards preparing the way for a significant growth in mediation and alternative dispute resolution in Ireland in the coming years. Those of us who believe in the fundamental justice of alternative dispute resolution which is accessible to all, have an obligation to participate in debate and discussion on how that will be provided. There are many challenges related to the above changes being introduced and a variety of opinion, thought and experience which need to be considered.

This is a challenging but exciting time in Ireland at a time of great change. We believe that mediation and all forms of alternative dispute resolution can play a significant part in a new form of citizenship and economic recovery.

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Conflict dynamics is based on the premise that all interpersonal conflict can be understood in terms of the patterns of behaviour that each party adopts. More often than not, these patterns become cyclical or repetitive and can be very challenging to break or change. The behaviour of both parties, if negative or destructive, usually will escalate and become increasingly destructive to each party and to their relationship.

How often have you heard yourself say ‘you ALWAYS do that’ or ‘he NEVER listens’ or ‘ I don’t like confrontation’ etc.. etc..

We each have a Conflict Dynamics Profile (CDP) and it can be illustrated using assessment tools.  In our ‘Understanding Conflict Dynamics’ training course on the 10^th of December, we are using the ‘CDP –Individual’  assessment tool as a means of providing participants with insight into how they individually respond to conflict.

Once participants obtain an awareness of their own current profile, we will then be working through numerous conflict management skills and techniques. These are designed to enable participants intervene in the destructive conflict patterns they have identified and to replace them with constructive responses and outcomes.

Conflict Dynamics Profiling has been developed by the Centre for Leadership, Eckerd College, Florida, USA.  Amicus works in partnership with the Centre in the assessment of participants.

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This article written by Dublin lawyer Kevin Brophy in his recent Practice Newsletter, contains some interesting ideas on how solicitors can apply conflict coaching skills and processes within their practice. With his permission we are sharing it with others who may find it helpful.

Over the last month, I have attended a conflict coaching course. Rebecca Keatinge from the office attended the course with me. I felt it was important that two of us from the office attend this course because it is more important than ever that lawyers in particular explore other ways to resolve conflicts that arise in the course of people’s lives. Law and the legal system should be very much a last resort and it is gratifying to see the emphasis being placed on forms of mediation and conflict resolution by the legal profession generally.

I found the course extraordinarily useful and inspiring. What I propose to do from now on is that every new client who comes to the office who feels they might benefit from our newly acquired expertise in this area, will be offered this service.

The benefit of this new service is that we will take you through step by step why this particular conflict has arisen and what steps you can take to resolve the conflict other than by way of the legal system. It may not be possible to avoid legal proceedings but at least you will feel that other avenues have been explored in detail so that if legal proceedings do have to issue then they will genuinely be a matter of last resort.

We are happy to offer this new service to our clients both old and new and I am completely confident that it will be of enormous benefit.

KEVIN BROPHY
BROPHY SOLICITORS
Parliament St., Dublin

www.brophysolicitors.ie

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We successfully completed the delivery of our latest conflict coaching training course this weekend. There was a great sense of achievement felt by all of us, participants and trainers alike. Having struggled to share and build the critical conflict coaching skills required over the duration of the training, on the final day participants seemed to simultaneously arrive ‘on the same page’!

This course trains coaches using the CINERGY® Model of Conflict Coaching which is used by Amicus. On this recent course we had participants from various backgrounds, legal, management, mediation and life coaching. One of the apparent aspects of this mix of participants is the flexibility of conflict coaching as a tool in so many different walks of life. It provides practical skills for people who need to manage interpersonal conflict or deal with people who are experiencing conflict or disputes in their lives.

All participants reported high levels of satisfaction with the course, in particular the fact that they acquired a great deal of learning, new skills and perspectives in relation to conflict and how to manage it.

Amicus now provides an ongoing practice development programme for all trainees who complete our conflict coaching training and for any others wishing to join us.

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These are tough times. People are under severe pressure just to get by, to pay their mortgage, bills and simply keep going. In a broken relationship, a couple may have no choice financially but to continue living together even though the relationship is fraught with conflict. Equally they may have to continue living together while enduring a long wait for a court date and a judicial decision. Whatever the circumstances, living together where conflict is part and parcel of everyday life is draining and often overwhelming.
How do you get by on a daily basis when almost every utterance is wrongly interpreted resulting in yet another disagreement? If you have children, how can you help them cope in this war zone?
Specialist conflict coaching will help you to better manage the conflict you are experiencing by:
• Helping you assess the conflict in depth and so broaden your perspective

• The broader perspective helps you develop options for coping in a different way

• You work through your selected option(s) to the point that you are confident in tackling the problem and getting the results you desire
Your conflict coach is your champion who will work with you over a period of time to support and assist you as you move to a new level of skill in the art of conflict management.

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Conflict coaching is a relatively new technique, especially in Ireland, to help people manage personal conflict. It is a niche area within coaching and is provided by a qualified coach on a one to one confidential basis with the individual. It can be provided in person or it also works very well over the phone. If you answer yes to any of the following questions then you should seriously consider Conflict Coaching.

Are you:

• Immersed in a conflict at work or in your private life that you feel overwhelmed by and don’t know how to handle?
• Unable to sleep or stop thinking about an individual you are in conflict/dispute with and find it impossible to find a solution
• Constantly feeling upset or down about a conflict/dispute you are in and cannot seem to see a way beyond it

These are all good reasons to consider talking to a conflict coach who can help you to handle what may seem impossible by yourself. Most people find immediate benefit from coaching and on average attend for four to six sessions. Conflict Coaching can also be provided over the telephone which can be very convenient, avoiding travel and disruption in a busy schedule.

Remember our thought of the week:

Be kind, for everyone you meet is fighting a hard battle Plato

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The majority of commercial disputes can be mediated.  It simply takes a willingness by each party to genuinely engage with the process and work together to seek a solution.

Typical examples of the types of disputes suitable for mediation include:

• Debtors and Creditors; Lender liability; Bankruptcy;
• Property; Construction; Commercial Tenancies; Apartment/Management Company disputes; Insurance cover; Environmental Issues;
• Business relationships; Shareholder/Partner disputes; Boards of Directors;
• Contracts; Products; Franchise Agreements; Intellectual Property; Intra-Organisational disputes; Licensing;
• Family business disputes; Succession Planning; Inheritance;
• Professional Indemnity; Personal Injury claims; Medical Negligence;

If you’re wondering whether  your particular dispute is suitable for mediation, even where it might be pending a court date, talk to a mediator. By being open to the possibility of reaching agreement through mediation, you will be opening the door to substantial added value for yourself.

Mediation provides you with a speedier outcome, costs less than protracted litigation and can sometimes restore a mutually beneficial, commercial relationship.

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If you are considering mediation, an important question which will arise is how to choose a mediator. Getting the right mediator to work with you is very important. A good mediator helps you examine the conflict from all angles, think through new ways in which you could approach the conflict and brainstorm numerous solutions which might work. (S)he will provide you with the opportunity and mechanisms to communicate more effectively with the other party or parties, all which are important in obtaining a positive outcome.

Amicus suggests the 5 key qualities of a good mediator are that (s)he;

1. is accredited by a recognised body and has a good track record
2. possesses excellent communication skills
3. instils a sense of trust in you
4. is able to listen
5. has enough understanding of your particular business to be able to work through the options which you need to consider

In relation to the final point however, it is important to remember that in many cases there is ample professional knowledge and expertise already available and another expert on the content of the dispute is not always required. Your mediator needs to be an expert in enabling both parties to find an agreement that works for them, not deciphering rights and wrongs.

Mediators can be sourced directly through the web/other media. In Ireland a useful source for mediators is the Mediation Institute of Ireland (www.themii.ie) and the Irish Commercial Mediation Institute (www.icma.ie). Sometimes others of your professional advisors will also recommend mediators.

The best way to choose a mediator is to talk to a number of them and make your own judgement on which is the most suitable for you.

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Stuck in the middle of an angry dispute can make it difficult to know when to opt for mediation.  It can be an even more difficult question when the matter has already gone into the legal process.

The good news is that there is not really a ‘no’ time for opting into mediation. Whether the dispute is in the early stages or not, mediation can work for you provided both parties are willing to give it a go.  Amicus recommends that the ideal time to engage in mediation is as early as possible, before each party becomes entrenched and polarized in their views.

When deciding whether or not to opt for mediation, consider the following:

• How important is this relationship to me and my business?
• How can I best manage this dispute, so as to have the least fall out?
• What outcome do I want?
• What might the other person want as an outcome?

Even if the dispute is about to go to court, it is not too late. If you want to remain in control and both parties genuinely want to find a solution that suits both their needs, find out about mediation.

Opting in may be the best decision you ever made!

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