Remarks by President Michael D Higgins at 15th Annual Conference of the Mediators? Institute 8 November 2013

 


It gives me particular pleasure to be here with you this morning to open your 15th Annual Conference. I would like to thank MII President, Gerry Rooney and the Council for inviting me to join you as I would also like to thank you all for that generous welcome.


Agus mo ráiteas á ullmhú agam don lá inniu bhí mé ag smaoineamh ar an gcaoi inar ghá dúinn fós, d’ainneoin a liacht céimeanna ar aghaidh atá déanta i ngnóthaí daonna, an oiread seo ama a chaitheamh ag réiteach fadhbanna agus easaontas ag an leibhéal idirnáisiúnta agus an leibhéal náisiúnta, agus cé gur difriúil ó thaobh scála de, sa láthair oibre, sa saol gnó, i saol an phobail agus i saol an teaghlaigh.

[In preparing my speech for today I was reflecting on how, despite so many advancements in human affairs, we continue to need to devote so much time to resolving disputes and conflict at international and national level, and although they differ in scale, in the workplace, business world, community and family life.]

What mediation achieves is that, irrespective of the nature of that conflict and where it occurs, ultimately sustainable solutions can and will only be discoverable when we make room in our hearts and minds for the voices and viewpoints of others.

We in this country have reason to be well aware of that after decades of strife which caused thousands of deaths during the conflict in Northern Ireland. This protracted history and the challenging complexity of that dispute is perhaps best illustrated in the fact that 18 months into the peace process, Senator George Mitchell, that most admirable of mediators himself, professed that he could not even get agreement between the parties as to what the issues for resolution were! He further went on to recount how he had moved beyond the usual definition of a mediator and ended up as an advocate for the agreement. The route to securing peace in this example may not have been linear or clear cut but it has been extraordinarily effective.

For those who devote their lives and talents and energy to that most difficult, stressful, often thankless task of resolving disputes, resolving conflict, I have nothing but the highest admiration for. I look around this room at so many mediators from so many backgrounds gathered in a collective commitment to furthering the use of ADR (alternative dispute resolution) methodologies, I thank you for all that you do in the cause of others. So often the interventions you make, the agreements you reach, between disputants are life-changing, life-enhancing and I use the terms advisedly.


The purpose of the Mediators’ Institute of Ireland, - to promote the use of mediation as an alternative method of dispute resolution and to ensure that those who act as mediators are trained and educated to the highest standard - is particularly important in the world we live and organise ourselves today. That world is one that is increasingly litigious and indeed increasingly regulated; a society where many disputes end up, too often prematurely, and perhaps unnecessarily, being adjudicated upon in a courtroom.
Sandra Day O'Connor, the former US Supreme Court Judge has said, and I believe quite correctly, that courts :

“…should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried."

Indeed our own former Chief Justice (John L. Murray), I recall, in speaking about mediation referred to the need to ‘alter the perception of the courts as the first and only resort for dispute resolution.’ (Irish Times 16th Sept. 2010). Those are wise words. And yet there is scarcely a week where we do not read in the papers, or see on our television screens, plaintiffs and defendants emerging from our courts; citizens who are innocent of any crime but have become involved, entangled in a disagreement or a dispute with a colleague, a neighbour, a business associate or even a close family member. Many of these disputes have begun as issues that may, with effective dialogue and compromise, have been resolved outside of a complex, slow and bureaucratic legal system; a procedure that can be particularly distressing, expensive and, of course, utterly adversarial. And what for the future of the relationship that has broken down? Irrevocably damaged? – very likely. Necessarily so? Perhaps not if alternative dispute resolution methodologies had been invoked rather than the courtroom setting.

In fact, the very premise of a legal contest is so often the apportioning of blame rather than resolving a problem in a manner which looks to the future and to the possibility of the rebuilding of relationships and trust. Regrettably, but inevitably, court findings are all too frequently accompanied by a permanent and irredeemable resentment; by a lack of true resolution as people emerge from a dispute as the ‘victor’ or the ‘vanquished’ and not as equal partners in a dispute which has been settled by mutual agreement, through a process which they have ownership of together with the mediator. Who knows that better than you, who work to further mediation as the first response to be considered in disputes where they occur!

We know that ADR (Alternative Dispute Resolution) methodologies, because of their non-adversarial nature are designed to provide a suitable, safe and confidential setting wherein aggrieved parties may explore solutions to their problems and agree them rather than suffer imposed solutions from third parties - blunt instruments often satisfying no-one. Social psychologists are of the opinion that imposed solutions will at best achieve compliant behaviour in people and then only when supervised or in fear of punishment; such solutions do not win hearts and minds.

Alternative Dispute Resolution of course must never be seen as a substitute for the necessary configuration of justice, vindication of rights or necessary institutional transformation. Rather it is a clearing of the ground for what is deeper and needs formal resolution.


The encouragement and facilitation of bi-lateral dialogue, where the parties themselves own both the process and the outcomes and which is without prejudice, is now well established as an extremely valuable and effective intervention in conflict resolution and conflict management. It is an intervention which recognises, as we must so often recognise in life, that no one individual voice recounts the definitive story of a past event and that true solutions, lasting solutions, can only be found when we are willing to hear the interconnected but differing experiences of all of those involved in that event. And again hasn’t mankind learned from bitter experience what happens when we exclude a voice!

A successful negotiation process is one that includes all stakeholders. The Rwandan peace talks in Arusha in the 1990’s for example failed to satisfactorily achieve this inclusion of narratives and without over simplifying the causes of the failure of the Accord, such omission was surely a major contributory factor in what subsequently happened. Arusha a short number of years later bore witness to the devastating consequences of the failure of that process as the United Nations International Criminal Tribunal for Rwanda heard of the genocide and other violations of international humanitarian law committed in Rwanda.

Whether the discord is on the international stage or in the workplace, in family life or that of business, there is, in many instances, no absolute right or absolute wrong party to a dispute. The truth so often has to be an accommodation somewhere between the honest, but differing voices who recount their story. Being willing to listen to, and understand, the varying often multi-faceted account of the same event can allow for a creative and resourceful working together to find a fair resolution.

I have spoken, on many occasions, of the need to transform our society and to build an active and inclusive citizenship where everyone receives the opportunity to participate at every level and in every way – to be the arrow; not the target. It is a transformation that must be rooted in a generous instinct to reach out to others, to respect the essential dignity of all citizens and to empower each citizen to have a voice in society. That is a purpose that lies at the heart of mediation - a process which aims to facilitate active participation in a negotiation process by the parties involved in a dispute, and to assist them in finding a solution which is fair and agreeable to both parties. It is a process which enables solutions that can provide a foundation for healing and repairing, for reversing the damage that has been done to pre-existing relationships and for allowing both parties to finally resume their lives with hopefully no residual sense of grievance or injustice.

It is, of course, sometimes essential to take a dispute to court or to agitate strongly for justice, pay a high price – even one’s life as the example of Archbishop Romero tells us, and you more than most know that mediation is not the panacea for all ails but we are fortunate here in Ireland to have some well-established systems for the resolution of so many grievances and disputes outside of the court system.

The use of alternative methods of dispute resolution is an important option to help resolve civil disputes and the challenge is to ensure that its significance receives its due recognition in the consciousness of practitioners in many fields not least the legal profession. Already, much of our legislation actively encourages the use of arbitration to resolve disputes while the Arbitration Act presents a genuine alternative to litigation for domestic and international parties in a streamlined, cost-effective and user-friendly arbitral system.

Tá sé ar a gcumas anois ag na cúirteanna agus ag lucht an dlí, níos mó ná riamh, páirtithe a stiúradh, ní áirim iad a atreo, i dtreo na hidirghabhála nó an chomréitigh ar mhodh a d’fhéadfadh dul chun tairbhe do na páirtithe féin agus don chóras dlí, agus cuirtear fáilte roimhe seo mar fhorbairt. Chomh maith leis sin, tá an Bille Idirghabhála 2012, arb aidhm leis úsáid na hidirghabhála a spreagadh agus a éascú, ar a bhealach trí Thithe an Oireachtais.

[The courts and the legal profession are now in a position, more than ever, to steer, if not divert, parties to mediation or conciliation in a way that can benefit the parties themselves and the legal system, and this is a very welcome development. The 2012 Mediation Bill intended to encourage and facilitate the use of mediation is also progressing through the Houses of the Oireachtas.]

We must remember, of course, that alternative dispute mechanisms cannot, nor is it appropriate to seek to use them, to redress insidious injustices or discrimination. Nor, of course, should they be used to address situations involving serious breaches of the law.

However, as the French moralist Joseph Joubert once counselled ‘Never cut what you can untie.’ Developments in the field of alternative dispute resolution, including the important field of mediation, are to be very much welcomed. As the professional association for Mediators in the Republic and Northern Ireland your Institute has, for over twenty years been promoting the use and practice of this important tool and skill set; encouraging aggrieved parties to, where possible look beyond the courtroom when seeking to resolve disputes.

The increasing importance and acceptance of mediation is, I believe, clearly on the increase. I hope that in the years ahead the MII will continue to grow its membership from across the different disciplines and professions while maintaining appropriate standards, as you currently do, through your rigorous Code of Ethics and Practice and requirements for CPD (continuous professional development) and knowledge sharing by members through annual certification.

My own commitment to mediation, as President, is evidenced not only by my being here and addressing you today, but also through my support for an initiative led by a senior official from my Office at Áras an Uachtaráin to promote the use of mediation in workplace conflicts through the design and implementation of a volunteer mediation service within the civil and public service on a shared service basis. The number of mediators operating the service now numbers 16 – all accredited to the MII, I should add – and all doing valuable work in mediating in disputes, and in addition to their day jobs. I am very pleased to be associated with this initiative which has gone from strength to strength over the past year and is doing so much good.

For you all, as equally committed advocates of mediation, the range of discussions which are to form part of this conference is an impressive one - from mediation in the community to the use of mediation in the resolution of human rights issues; and mediation as a tool for resolving bullying and harassment issues at school and in work. It is an uplifting indication of the many, many areas of everyday life where effective mediation can avert the need for legal resolution and provide a solution or a compromise, that satisfies the needs of all participants.
I would like to conclude by wishing you every success with your conference.
I congratulate you on all that you have done and continue to do to make things better for people who for myriad reasons become embroiled in disputes. You provide a tried and tested pathway to constructive dialogue when people are so often at their most vulnerable and uncertain as to how to proceed, how to pull back from the abyss. For all that you do to provide an alternative, a better pathway for our citizens I thank you as I thank you too for providing me with this opportunity to share this occasion with you. May your good work continue to bear fruit in the days and years ahead.

 

Is ionatch an obair atá ar siúl agaibh. Go n-éirí go geal libh agus go raibh míle maith agaibh go léir.