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Could a conciliatory approach by a neutral party resolve certain commercial disputes instead of a bewigged judge? Law Society president Brian Speers thinks so
They've been hogging the headlines for all the wrong reasons as a row over legal aid payment rates in criminal cases gets more bitter by the day.
But the man charged with representing solicitors as president of the Law Society is eager to promote a gentler side of the profession in Northern Ireland - the potential for solicitors to retrain to act as mediators in business disputes.
That means getting rowing businesses to sit down together in a neutral setting and reach an agreement outside court - saving time and costs and, in the best of all possible outcomes, helping ensure the basic commercial relationship is salvaged.
Brian Speers - who, when not at the Law Society is managing partner of Belfast firm CMG Solicitors - said protocols and practice directions from judges now oblige parties to consider mediation to solve their problems.
Mr Speers has become a leading authority on mediation, even being called upon to lecture on the subject at Fordham University in New York
"No member of the legal profession should ignore mediation," he declares.
He has been a mediator in around 40 cases in the last 15 years since a Law Society course on dispute resolution, another name for mediation. "It chimed with my experience," he says.
Mr Speers has been involved in cases where mediation has resolved construction rows, partnership disputes and shareholder disputes with sums at stake from £35,000 to what he describes as "the low millions".
With typical flourish, he described the messy emotions involved in partnership disputes.
While all will be rosy in the garden when all partners are together sharing a common aim for their business, things can change when one wants to leave and set up a new practice. "The partners who are left behind will think: "I'm completely brassed off that you're leaving, that you have rejected us and stabbed us in the back."
"Those are issues of emotional complexity...and there's a variety of imaginative solutions you can reach through mediation that the Partnership Act doesn't allow."
Mr Speers has been a man with a mission since taking up the presidency of the Law Society and sees mediation services as a possible future service law firms can offer, beyond the usual "wills, divorce and conveyancing" areas of expertise. The president said mediation consists of making a distinction between the rights of the parties -the right to sue, the right to have terms of a contract observed - and the interests of parties.
For example, it could be more in the interests of parties to have a solution that looks after their interests, mainly the long-term aim to preserve the relationship between the parties. "Often rights don't chime with interests. Particularly by looking at the interests rather than the rights, you expand the opportunities for much more positive solution."
Cases where mediation is a happy fit include the "families at war" territory of inheritance claims, shareholder disputes and succession disagreements in private companies, where sons or daughters may not necessarily agree on how to proceed with a parent's business after death or retirement. In those cases where it does apply, he thinks the law could now be moving towards an embrace of mediation through a combination of "judicial thinking, academic awareness, practitioner awareness, client awareness and the times we are in".
But Mr Speers does put the economic savings of mediation low down the list of its virtues.
The devolution of policing and justice powers to Northern Ireland last year cemented the cause for an imaginative approach to business arguments. "David Ford stated that his vision for justice involved seeking more cases resolved outside court than inside."
Mr Speers estimates that around 80 to 90% of cases which go to mediation will result in a resolution that's acceptable to the parties. He also claims mediation will give clients "a safe space" to express the weakness or otherwise of their cases.
Going for mediation may be contrary to the adversarial style of law but without putting it forward, "you are not advising your client comprehensively or adequately".
While it may keep costs down, mediators do still get paid - around £50 per hour for preparation by each party and a cost of £400 for up to four hours of mediation and £90 per hour thereafter where the sum at stake is between £100,000 and £250,000. Where there is more than a quarter of a million at stake, the cost is agreed by the parties and the mediator.
He's quick to point out that barristers have an important role in advocacy and procedural expertise.
But mediation does effectively rule out barristers, unless they wish to train as mediators.
"I tend to think that solicitors have enjoyed the close contact with clients and have the type of people skills to be successful mediators. "It's horses for courses - but no person who conducts litigation should do so without advising the client of all the alternatives."
The genial professor - he was appointed visiting professor at law at the University of Ulster at Magee - is clear on the qualities needed by a good mediator.
"You need to have total integrity and an awareness of your role as a neutral party. You need to have a degree of fluency and enormous reserves of patience and to be a very good listener.
"You need highly developed people skills because you need to gain the confidence of the parties."
Titanic apartments put the spotlight on Speers
Brian Speers came to public attention even before he was appointed president of the Law Society. As the legal representative of the Titanic Action Group, he advises a host of buyers of apartments who could no longer raise mortgages on properties they had contracted to buy at the Titanic Quarter. Many cases brought by Titanic Quarter Ltd against buyers are still progressing through the courts - but defendant Neil Rowe was released from his contract last year by virtue of having no money to complete. Mr Speers says the concept of a 'Rowe defence' is now becoming part of the legal vernacular.
Plan to cut legal aid cash sparks dispute
A row over legal aid payments in criminal cases began when Justice Minister David Ford announced he would cut rates for high-value criminal cases. Solicitors have gone on strike over cuts in their pay. A Northern Ireland Audit Office report last week said the system for paying legal aid raised concerns about the accountability for spending of public money. Criminal legal aid costs were up from £22m in 2/1 to £6m in 29/1, before going back to £51m last year. The Law Society said responsibility for spending lies with those managing and overseeing legal aid.
