19 Oct 2011
Speeches at the CEDR Ireland Launch, Ormond Building, 18th October 2011
Andy Rogers, CEDR: Good evening ladies and gentlemen, thank you very much for coming to this, the launch of CEDR Ireland, here at our home in Dublin, the Ormond Meeting Rooms.
We will shortly hear from our Chief Executive, Karl Mackie, but before we do that, I just wanted to say a quick thank you to Ormond Meeting Rooms for being our home here and also to PCR who are providing the stenography services tonight. But first I will hand over to our guest of honour Mr Justice Peter Kelly.
Mr Justice Kelly: Thank you very much for inviting me to speak here this evening.
On the 12th January next the Commercial List of the High Court will celebrate its 8th birthday and when the rules of court, which introduced and set up the Commercial List, came into force in early 2004, they introduced a concept which was novel, namely the ability of the commercial judge to direct parties, who were involved in commercial litigation, to consider alternative methods of resolving their difficulties.
That became very popular within a relatively short period of time, despite it's novelty. Initially people were sceptical, perhaps even suspicious of the process, but after a very short time they became very much enamoured of it.
Why was that? Well because they realised, as did the litigants that mediation, which proved to be the most popular form of alternative dispute resolution, provided a speedy, cost effective, and private way of resolving disputes.
Not merely that, but the parties who involved themselves in mediation controlled the process, unlike either arbitration or litigation itself.
Now mediation was not unknown to Irish lawyers, prior to 2004, in fact in the family law legislation of 1996 there is express provision for mediation to take place in the context of divorce and matrimonial proceedings, but it was certainly new to commercial litigation and what was even more new, was the ability of the court to require parties to consider it.
I have become a strong supporter of mediation, and I have become a convert, because I have seen how effective it is as a way of resolving disputes.
I have seen what appeared to be the most intractable of disputes being resolved, very effectively.
I have seen commercial relationships that existed between parties for many years, and which had become soured as a result of a particular incident, not merely having that dispute resolved, but the commercial relationship resume to the mutual benefit of the parties to the dispute.
Crucial to the success of any mediation of course is the skill of the mediator, and I'm delighted therefore to have the opportunity to speak on this occasion when CEDR take up a permanent position in this jurisdiction.
They were one of the first, if not the first company, which provided courses to people who wish to acquire the skills of mediation.
And I'm delighted therefore that they are now going to be here as part of the permanent architecture of the Quays, immediately adjacent to the Four Courts, so as to provide mediation courses for anybody who wishes to follow.
I have had a few occasions upon which persons who called themselves mediators became embroiled in the process.
Like bulls in china shops! They had no skills, they had no experience, and it was a disaster all round. So it is important that if people are consigning their disputes to a mediator that the mediator has training in the skill, and CEDR provide that, other entities do as well, but as I say they were either the first or one of the first to do so.
So I hope that the services will be availed of, not merely by lawyers, but persons who belong to other disciplines because mediation will be useful, not merely in the context of litigation, but in the context of other disputes that break out, in the engineering field, in the architectural field, the accountancy field.
So I'm delighted to speak on this, the opening of CEDR's permanent home in this jurisdiction and I wish it well.
Dr Mackie: Good evening everyone, I'm Karl Mackie, the Chief Executive and one of the founders of the organisation, along with my colleague Eileen Carroll, who was the primary founder of the organisation having landed from the west coast of the US and brought over ideas from California, like many other ideas and made a reality in terms of an impact on London.
I am very grateful to Judge Kelly for being here tonight to help us launch, as he says, our permanent base in Ireland. We have been working in Ireland for many years, but we do know that a critical step change in mediation often requires the judiciary to get behind the process, and we are seeing that in country after country.
In England and Wales the Commercial Court again was one of the primary movers in terms of judicial direction, because the commercial judges were much more responsive to what business was looking for from a satisfactory system and good client relations, once in a dispute process and so they looked to the court to give them guidance and leadership, and the commercial courts, both in England and now in Ireland and elsewhere, have been very much primary movers. Followed by the rest of the legal system to areas like clinical negligence and personal injury.
We are really pleased that the judiciary, both here in the Republic and also in the North of Ireland, with judges like Judge Gillen, actually put their shoulder behind the idea of mediation, and also rules of court relating to mediation.
We know very well, as an organisation having been around in the field for over 20 years, that it does require trained mediators, lawyers that change their mindset and help advise clients about the benefits of the process and Judge Kelly outlined a number of those.
So it takes lawyers to also start working for client's satisfaction in this area to see the benefits of mediation, to advise their clients accordingly, to put it in contract clauses, and generally work with clients as problem solvers and not just people taking them through a serial litigation process to event large amount of costs and confusion about why they won or lost. Much, much better to stay in control of the process if you can. Yes assess the risks, but at the end of the day reach what seems a commercially appropriate resolution for the dispute.
So in the 20 years we have been around the world not just in England, we have actually worked very internationally, particularly in the training field, and did seminars and conferences, we started in Ireland actually in the early 90s, Eileen came over and launched an early ADR attempt in Dublin. I was in the north of Ireland and spoke to the Law Society in Belfast and the director of legal practice at Queen's at the time attended the seminar, and she happened to be a lady called Mary McAleese.
She later, in an interview with a journalist, it's quoted in her biography that the journalist said to her, "What would you have done if you hadn't become President of Ireland?" And she said, "Well I'd have gone to England and trained as a mediator."
Well I hope that was something to do with that seminar I ran in Belfast! It was certainly a great tribute that she said that. But I think probably her time was better spent in that period from the mid 1990s to now as President of Ireland and possibly as a would be mediator.
However Mary, there is still a vacancy for you in the CEDR firmament and perhaps involving disputes between the Presidential wannabes out there!
Also in that space of time we have trained considerable numbers. We have now trained over 350 mediators in Ireland. We have actually mediated over 30 cases in farming, engineering, IT, so people are beginning to use the process.
But we realise it's not really enough to be someone in London recommending a process, we need to get very much local buy in, a local base and also an adjustment, we have trained and advised on ADR in many, many jurisdictions, places like Nigeria, Pakistan and India, we recognise every jurisdiction has to find its own way of structuring ADR approaches and organisations.
But we very much hope and we were invited by mediators in Ireland to set up here in Dublin, because they felt that the experience of CEDR would provide a base, a skeleton to make the process actually have an impact, that was quite powerful, in not only the State arena, but also the commercial sector. So we very much hope this will provide a platform to take ADR in Ireland to a new stage.
We also think, and it's appropriate at this time to talk about this, that this is also about the economy. Our research on ADR in the UK suggests that parties can make, or the business community can make hundreds of millions of pounds in savings in terms of management time, in terms of continued relationships in contractual situations and big projects and in terms of legal costs.
So even as a rough estimate we thought, just looking at the statistics, probably we could promise in Ireland, if people take this seriously, there is something like over €120 million of savings a year available from using ADR effectively in the way it has developed in the UK jurisdictions.
And possibly, if you add State costs, for conflicts and not just litigation conflicts, but conflicts over complaints from citizens and various other areas where one can devise and design dispute schemes; there are potentially major savings available. But also better community practices in terms of how people respond to conflict, how they manage conflict and prevent it, that's part of the wider brief.
The last thing I want to say is this is very much part of a global development. We are very conscious from having trained in so many jurisdictions that many, many legal systems are recognising that the old systems were too much of a serial process, without much thought and most legal systems are beginning to recognise they need to be more flexible to the way people resolve disputes, in an era of fast moving technology and commercial relations, and global linkages, people need to respond much more fluidly, much more flexibly and ADR is part of that responsiveness.
So alongside Dublin, we have got another launch this week, we just launched in Doha in Qatar, in that case part of the outsourced services of the court set up in the gulf, part of the international commercial court and we are launching in Hong Kong. So we very much see Ireland not just as an area where ADR can develop in a domestic sense, but as a good community in the way Ireland operated internationally for cross border disputes and processes. So we're very pleased to be setting up our base in the Ormond Building.
We know we have got very good mediators out there who we trained. We now need you to work with us to really take this process to the next stage in terms of Irish society, but also in terms of international commercial transactions.
So thank you for coming along tonight. Thank you again very much to Judge Kelly for being here to be associated with this initiative. And we look forward to working with you in the future.
Thank you very much.