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Mediation In Ireland

Mediation In Ireland

Given that Ireland has become one of the most litigious jurisdictions outside the USA you’d think this would be reflected in the number of mediations carried out. Apparently not, so what’s the situation with mediation in Ireland and why is is slow to take off? Austin Kenny, one of the most experienced mediators in Ireland shares his experience and insight. If you’re thinking of getting started as a mediator in Ireland you should watch this now.

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Transcript

Full Transcript

Aled: Hi everyone, my name is Aled Davies, founder of MediatorAcademy.com, home of the passionate mediator, and a place where new and aspiring mediators come and listen to experienced mediators from around the world tell their story about what’s helped them become effective and successful at what they do.

What you see and hear on Mediator Academy isn’t something you’d typically find on a mediation training course. Much of your growth, much of your development will come from experience, and this is what my guests bring. So at the very least, you leave with some clear, actionable steps that you can take to move one step closer to achieving what you want to achieve in this field, and improving your effectiveness as a mediator. I want you to be inspired. I’m always inspired by what my guests bring, so that you’ll take at least one actionable step, make one change per week, and build your own success story. And maybe then you’ll come back onto Mediator Academy and tell your story to my audience.

Now, I read an article recently dating back to the beginning of 2012, which said that Ireland had become the most litigious jurisdiction outside the U.S. So I’m wondering if that makes Ireland fertile soil for mediation to take hold, and if so, where do you start, and how do you prosper? Now my guest today started from scratch a mid-tier accountancy practice, employing over 30 people, and sold it into a larger firm. He’s acted as a chairman, and in an advisory capacity for a number of different organisations and companies. He’s also director of a major property development company, and a major shareholder.

He was accredited by CEDR in 2004, and then set up his own commercial mediation practice in Ireland in 2006. He’s now chairman of the Irish Commercial Mediation Association, and I’ve seen him speak at a number of mediation events about the current state of mediation in Ireland.

So there’s no better person to come on here and talk about this, which is why I’m delighted to welcome Austin Kenny onto Mediator Academy. Austin, welcome.

Austin: Good morning Aled, thank you very much. How are you?

Aled: Top of the morning to you, I’m very well, thank you, I’m very well.

Austin: Before we start can I offer you and all your fellow countrymen a word of congratulations about the fantastic contribution of course to Warren Gatland and all your red guys to that Lions victory. Absolutely fantastic, I really didn’t think you were going to do it, but you did. Well done.

Aled: Actually, I was meaning to talk about that in the pre-interview, but thank you, I’ll accept that. I feel like I was on the field.

Austin: Ah, superb.

Aled: Yeah, it was a great game.

Austin: Well done.

Aled: Now it’s taken me about a year to persuade you to come on here and do this interview.

Austin: Mm hmm.

Aled: At which I’m really grateful, I really appreciate that. There’s a part of me thinking, you know what, it could be that mediation in Ireland is in such a period of growth and the demand for your services is such that you just haven’t had time to fit the interview in. So, tell me what’s going on with mediation in Ireland?

Austin: I would really wish that that were the case, and I do believe that it will be the case, but for now mediation is still very much in its infancy in Ireland, and in particular commercial mediation. Family mediation started out here probably 30 years ago, and hasn’t enjoyed tremendous success. Commercial mediation started probably about 10 years earlier or so ago, and with that has kind of been slow enough to take hold.

I think you are right, we are a very litigious country, and maybe that’s Western society, I don’t know what it is or how different we are to others, but I accept what you may well be saying, because the evidence here is that the courts are stuffed full, and getting a case to court in Ireland takes an awful long time, through any of the courts, in particular the High Court, where it can take up to two years to have a very simple average case heard in an Irish court. And God forbid should you need to go to appeal on that, to a higher court or the Supreme Courts can take four to five years. So it takes an awful long time, which basically means there’s an awful lot of that going on.

Judges are hugely frustrated by it, and finding themselves having to hear stuff in courts that they really feel they shouldn’t be hearing. And with that, the new rules that have come in over the last couple of years courtesy of the EU, where judges are allowed, and parties are allowed to apply for mediation. Many judges now are turning to parties in advance of hearing cases to ask them to consider mediation. Not force it upon them, but ask them to consider mediation. Yeah, and just in particular, our commercial court in Ireland, which has been set up over the last, I think five or seven years, which practices case management, unlike all the other courts. And the head of that court, Justice Peter Kelley, has become a really strong advocate of mediation. And very regularly now in the commercial court, which hears only cases valued at a million Euro plus, know taking your case to commercial court, Justice Peter Kelly’s going to ask you, ‘Have you tried mediation? And if not, please go and try it now.’ So, yes, that is the way things are happening. But slowly, in terms of the growth of mediation work, yes, more and more cases are going to mediation.

We’re not good on statistics and information because mediations are confidential and private processes, it’s hard to get numbers, but anecdotally, among colleagues and among the league of the profession and so forth, and particularly among the larger and more sophisticated law firms, you’ll find that more and more cases are being recommended and considered for mediation. Albeit maybe at later stages, but still it’s a growing factor in the dispute resolution world here.

Aled: Okay, so parties are not compelled, they’re asked to consider mediation. Are there any unintended consequences if they choose not to?

Austin: Not at the moment.

Aled: Okay.

Austin: At the moment, we have a draft mediation bill, so the government is considering legislating for mediation. Two years ago, the lower form commission, that is the organisation that drafts and prepares new legislation, prepared a very, very detailed report, which they presented to the government, and effectively proposing detailed legislation, in fact, drafting a bill, which was considered and how our government is operating at the moment in terms of new legislation, started was a think tank, where all the vested interests around mediation were invited in with written submissions, or oral submissions and so forth, a good chat.

So that’s now on our Minister of Justice’s desk, as a draft mediation bill, and in that includes the possibility of cost award against particular plaintiffs I suppose, unreasonably not consider mediation in the course of the dispute. And also within that is a consideration for an imposition on both solicitors and barristers, that in presenting a case to court, that they would either be certifying that they, along with their clients, signing and certifying that they had tried mediation. Or indeed at a lesser level I suppose, the solicitor or barrister certifying that they have informed their client about mediation. So that’s all in the ether at the moment, it’s in discussion. It’s unlikely we’ll hear this year, 2013, but maybe into next year.

Aled: You said not much stats on mediation. Are there any idea on volume of cases going through there?

Austin: ICMA, the organisation you mentioned earlier on had a chair, we’re out there in our job, our work is simply to promote and grow the awareness and use of mediation, and we’ve tried various surveys. I suppose the best indication we could give is that there might be somewhere between 300 and 500 mediations, commercial mediations per annum going on. And really that’s very much mostly around anecdotal information, supported by some survey information. But I suppose if we take it that our High Court alone has something like 15,000 cases on the go at any point in time, and that’s just our High Courts, we also have Circuit Courts and District Courts, and a Commercial Court, so it’s a tiny fraction of dispute resolution at the moment.

Aled: In terms of numbers of mediators, I know in the U.K., and I’ve done a few interviews now where a number of mediators have raised concerns as to the sheer numbers of mediators that have been trained and that are sitting idle in the U.K. Is it the same in Ireland?

Austin: Well, yeah, if you’re interested in making money out of mediation in Ireland now, and the U.K. may have you’ve experienced the same things, you’d be training mediators. So a guesstimate is that there could be in the region of 500 trained commercial mediators in Ireland. So you take that and you’re saying, okay, they’re getting one case each per annum. And of course it’s not working like that. The other thing about the training of mediators is that many, I think 60% or so of mediators that are trained in Ireland, are lawyers seeking to learn more about the mediation process so that they can work better with their clients in mediation. And that’s a good thing to see, because it means the gate-keepers of mediation, the lawyers, the legal community, are continually learning more so that they can offer that as a value driven service to their clients. And maybe a legally imposed one at some point. But we have to wait and see about that.

Aled: A lot of the people attending these courses are lawyers, not looking to become mediators, but just looking to understand a bit more. Now you’re a non-lawyer mediator, right, Austin?

Austin: Yeah, that’s right.

Aled: I have to say, and I’ve listened to you speak a couple of times, you come across in this way, as having a really detailed understanding, appreciation, knowledge of the legal system. How have you developed that? Are you finding it advantageous in terms of finding assignments as a mediator? Are you finding being a non-lawyer mediator is advantageous or less advantageous? I’ve got a number of questions wrapped up –

Austin: Yeah, sure. I suppose, just to deal with the first part about my understanding of law. I’ve been working in business and working in business as an accountant in practice for 30 years or so. In my earlier career I worked very much as a compliance accountant, as one does, you work in a professional practice and you go up the system and all the rest. In my later career I was working more as an adviser I suppose, to clients, and in many different areas. I’ve worked in insolvency, and in insolvency you need to understand company law. I worked in restructures [sounds like 0:12:34] or just in acquisitions, I’ve worked in tax adviser. I’ve worked in a whole range of different roles, all of which, in some shape or form, require an understanding of different aspects of law.

So reading and understanding, also being a part of compiling legal agreements, shareholders agreements, share sale agreements, partnership agreements, all kinds of things I would have done as a natural part of my work, means I was interacting with lawyers quite a lot, and certainly regularly reading through and understanding and often explaining legal agreements to clients, landlords and tenants rent agreements, and all this sort of things. Equally, I worked as a forensic accountant, which is where I learned mostly about the legal system and how it works. And that might be in cases where somebody’s been injured, a self-employed person like you or I gets injured in a car accident, we’re out of work for a period of time. Yes, we’ve been injured, but we also can’t work, so we’ve lost money from not getting to work in our business. So I would have worked most likely with insurance companies challenging the claim, challenging and checking the veracity of the claims being made, and spent many times standing around court rooms, hanging around with barristers in all parts of the country. Just waiting to see, is it going on, is it not going on, what are we going to do, and watching the theatrics that go on in a courtroom and around the courtroom, and settling on the steps and all that sort of thing. So I suppose I spent quite a bit of time around that sort of space.

And being in business of course, I’ve been sued, and I’ve sued people, so I’ve been there as the party. I’ve felt what it’s like, I suppose, and to a large degree you’ve got to ask yourself as a business person, ‘Is what I’m doing here, litigation, is it a commercial thing to do?’ And it’s not. And I probably would have had a jaundiced view of our legal system for quite some time, not of the law itself or the operation of law, but the system of getting from A to B, is a challenging one. And hence the stats that I spoke about earlier on are proven.

So out of that background, I think all that that work I’ve done over my life is tremendously helpful to me as a mediator, because when I sit with parties, I understand where they’re coming from. I understand their frustrations. I understand the frustration that they see when they lose control of a case, because a lawyer has taken over, and I’ve been there myself. And I consider myself bright and smart, and maybe I’m suing or being sued, and I find that ‘I’m not in control here, I don’t know what’s going on’ and I completely leave it up to my lawyers to control it and do it. So that’s something I do understand, and hence one of the factors of mediation is offering parties an opportunity to take back control. Certainly is something for me, I feel is an important thing, but I also can understand that for many parties, it’s probably not an easy thing to do, to stand up to your lawyer and say, ‘No listen, hang on a second, I want to make a commercial decision here.’ So it’s one of those factors. But on the general legal thing, yes. I do have a good understanding of it, I do frankly spend a lot of time working with lawyers.

As a mediator too, is it a good thing or a bad thing to be not in the legal profession? From the point of view of getting work, right now in Ireland, it’s a really bad thing, because I can see that 80-90% of mediations carried out in this country are carried out by legal people, solicitors and barristers.

And certainly from time to time we see publicity in the newspapers about different cases, and the really big profile cases, and invariably the big profile cases are mediated by senior counsel as we call them in Ireland. Silks as you’d call them in the U.K. That to my mind is one level of the legal profession just working within itself. It’s the comfort zone, senior counsel that are appointed in both cases of dispute, the likelihood is that the comfort zone for them is to appoint a colleague that they really already trust and know and so forth and respect their work. And you know, that probably is good for the parties, because then we see that those senior counsels can all work together. And that can be a very good thing. But also we can hear it can be a very bad thing, because we can see then that mediation has not really been observed.

We have bad examples of mediation not being observed and the senior counsel are really just stepping into the comfort zone of settlement talks, and in cases we hear that they don’t even come to meet the parties, and this sort of thing. So, we’re at an early stage in Ireland and still growing and learning, but as a non-lawyer mediator I find now that I often see people are coming to me specifically because they know the issues here are commercial issues and we need to get them sorted out. And it’s really commercial decisions. Once the dispute has been handled by the lawyers, it’s not a legal issue, they do different opinions in terms of what the legal position is, but it’s really a commercial outcome that’s required. And in that, generally speaking, my experience is that lawyers at all levels are generally not terribly enumerate, and they don’t handle large pages of numbers terribly well. That’s an area that I’m very comfortable in, as you can imagine, and it’s never a problem for me to sit with numbers, and I know in mediations I’ll consume numbers probably more readily than I’ll consume all the written facts that have been presented by the parties around the legal issues and so forth.

If I’m in a case, for instance, where I feel that I might, even though I’ve been appointed, that I might struggle, maybe because of the legal content, invariably what I do is bring an assistant with me, who can be either a barrister or a well experienced litigator at law or something like that, and if parties are concerned with me being a non-lawyer, there’s something missing from the mediation, that’s generally what I do offer. And equally if I go into a construction dispute, I can bring along an engineer with me, or an architect or a quantity surveyor as an assistant. Sorry you didn’t ask me this question, but when I work with assistants, and I always do work with assistants, you work as a team, and that’s the job. Not somebody to take notes for me or make tea or keep me moving, it’s that we work as a team, and that’s the –

Aled: That’s very interesting. I was speaking to someone recently about the co-mediation model, and there’s a lot to be said about the co-mediation model. I think in Argentina they’ve got a system now, it’s mandatory mediation. And in order to mediate, you have to be a lawyer, so there’s no room for non-lawyer mediators, and also it’s compulsory to work with an assistant, but they’re not seen as an assistant, they’re seen as an expert, so you have to bring in someone who’s got expertise relevant to the nature of the dispute.

There’s a lot of things that don’t work I think that certainly rub up against the principles of mediation, but it’s kind of interesting thinking about, particularly if you think about the facilitative model of mediation and some of the assumptions embedded in that is that I don’t need to know an expert in the content, I can just facilitate the conversation. I think to some degree yes, and I think just listening to you now, there are times in mediations, commercial mediations where I felt out of my depth. Just the volume of numbers and so on, I’ve just thought, you know, I could really do with someone who could just cut through all of this, and so I can see how your experience really helps you be effective in certain cases.

Also bringing someone in who can not only assist you, but actually give some reassurance to the parties that, well you know what, Austin can get it started and get the conversation going, and if there are peculiarities of this case that he doesn’t understand, he’s got someone by his side who can update him on that.

Austin: I think it’s tremendously helpful. And I think also because most mediators are not young people, most mediators are people who have been through a career, you don’t go to college to be a mediator and then come out at 25 and off you go and set up your career. You’re in your 50s most likely. Okay, Aled I see you’re a good bit younger than that, you look a little bit younger than that. Most of the assistants I bring with me are certainly my age profile or even older, so the perception is we’re bringing experienced people. And two minds I believe are always better than one, and I don’t believe I’ll always have all the answers for everything.

As much as I believe that, there’s no doubt that the best senior counsels that we have to offer in the land here actually have all the answers at every given mediation, because we’re all generalists. In the main we’re all generalists. Now co-mediation, yes, I agree, there still has to be a boss. We call them assistants because, and we could call it a co-mediation, but I just do believe that someone has to have the responsibility for the direction of it. The last thing you want to see is that there would be a disagreement between two mediators, even if it’s in the private room, as to what they should do next. There has to be a boss I believe.

Now I know the family mediation model and sometimes the workplace mediation model works with co-mediation. I actually have worked with co-mediation models in community mediation. I do quite a bit of pro-bono community mediation work, and the model is a co-mediation, so I’ll meet the co-mediator 15 minutes before we go into the case, so we don’t even have time to think about the strategy, and they do call us mediator one and two, and as mediator one I always say, ‘Listen, let’s just see what happens.’ And it works brilliantly well invariably, because you’re generally speaking with people who are quite experienced, who are in this work because, you know, probably for very much the same reasons we’re all in this kind of work, insofar as we can articulate that. So I believe it does work well. But that expertise, that piece at the edge, can give a piece of comfort.

Because very often I get the questioning lawyer looking for a mediator who has experience in some of the weirdest things you could hear, just weird, weird things. And in this country you’re not going to get mediators who have specific knowledge of a certain area. And then of course, as you raise the point, the solicitor is asking and assuming that the sector knowledge is the most important thing, and I would say, and I think that stats even from the U.K. but certainly from the States tell us that that’s not the case.

How much mediation experience have you had, and in Ireland that’s a real challenge, because we’re very new at it. I’ve done just over 50 commercial mediations, and I’m probably up there with the numbers of mediations. There could be one or two people who’ve done more commercial mediations than I in Ireland. So that’s where we are. In the U.K., you’ve got mediators who’ve done probably 100 to 1,000 mediations. We don’t have that depth of experience, so within saying that, because I’m competing against our local mediators, I’m still seen as a very experienced mediator here, and I think that’s a really important thing. But the market still perceives sector knowledge as very important. Oh you’re a lawyer, you’re not a lawyer and the salient stuff, who you are as a professional seems to be driving the demand more so than the mediator experience.

Aled: I want to pick up on a couple of things that you said. I want to come back to ICMA, I want to understand a bit more about where’s the go-to place to learn about mediation, to get referrals and so on, but something you just said a minute ago which I’m curious about. You said something like, ‘We’re all in this for the same reason, insofar as we can articulate,’ something like that you said. What’s the reason you’re in this? You know, you’ve got a successful career, now you’re doing pro-bono work, you’re doing mediation, you’re kind of 50, what’s driving you Austin?

Austin: I knew when I was saying that I shouldn’t have said that because you’d ask me. I suppose I look at myself, I’ve always been in the business of problem solving, and I’m not sure where that actually comes from, but I seem to be in this business of problem solving. And I know once talking to somebody who would know about these sort of things, they accuse me by saying, ‘Stop trying to fix the problem, stop trying to do that, people have to sort their own things out,’ so I think there’s a failing in me somewhere that says I like to solve problems. Equally, I don’t like confrontation. I never did as a child growing up, seeing people fighting was something that either terrified me, or I just didn’t like, so does that mean I’m some sort of peace maker or something of that order? I think it probably does.

Earlier I said to you I do some community mediation work, and you know it is pro-bono work, and I don’t say that thinking I’m a great person or a philanthropist or anything like that. I do it actually because I really, really enjoy the work, it’s quite amazing. And in fact I probably get more enjoyment out of it than I do doing commercial mediation cases. It’s more real, it’s more about people, you get more honesty, you get more emotion, you get more aggression, you get more of lots of stuff. Commercial mediation, of course, is work and it pays the bills, and I suppose at some level, in an ideal world, and I do recall talking to one of our very senior counsels about this, we would all love to think that we could achieve, transformative mediation in the commercial setting. But of course the truth and likelihood of that happening is probably very slim, just by virtue of the nature of it, because of the money, because of the experts, the people involved and all the rest. So you know, yeah, I’m a peacemaker, I probably am, so I think that’s why I do it.

Aled: Some kind of drawn to it for –

Austin: You can cut all that last piece if you wish. I’m drawn to it for some reason that I haven’t really articulated for myself just yet.

Aled: Well I think you’re right in terms of we’re all in this for similar reasons, we all have, it’s almost like an internal compass that’s driving us to pursuing this, to wanting to help others. There’s an expression where, which says something like, ‘We end up teaching what we need to learn about ourselves most’ or something.

Austin: Well you know, that’s such a valid point because the one thing I have learned about mediation is this: is that, if you – and I have a real interest in mediation, even to this day if I get the opportunity myself to assist other mediators, and particularly U.K., very experienced mediators, and that sort of thing, and I’d love to do it in America as well, I will do it. I’ll take it on and go and just to watch other mediators at work and learn. But what I have learned is this: as much as you can watch and see what other people do, you can only bring yourself to the room as a mediator. You can only bring yourself. You must only be you, because if you try to be anything other than that, you will be found out.

Aled: I suspect there’s a story under there somewhere.

Austin: Probably yeah. I’ve probably seen some great things be done and I said, ‘I must try that’ and then maybe tried it and said, ‘Oops, I don’t think that went terribly well.’

Aled: All right –

Austin: Oh God, have I lost you a little bit?
Aled: Your screen seems to have frozen.

Austin: Oh, my God, connection is too slow. All right. Is that a problem?

Aled: No, I’ve got you, you’re back now. That’s good.

Austin: Yeah, because you’ve gone a little fuzzy on me as well. So that’s it, it’s to be yourself. Learn from others, and I have learned things that I’ve used from time to time, but you’ve got to be really really confident. Just because it works for another mediator doesn’t say it’ll necessarily work. And you and I have been in the rooms with some really experienced mediators from the U.K., and I’ve spoken with them and learned from them, but I know can’t be them, and probably wouldn’t seek to be and certainly lots of them wouldn’t seek to be me.

Aled: I think the last time we met was at the mediator gathering, and I got chatting to Michel Kallipetis –

Austin: Oh yeah.

Aled: – who we all know is a very experienced mediator, who by the way has agreed to do an interview.

Austin: Oh, super.

Aled: That’s great. I think I asked him what he considers the key aspects of preparing for a mediation or something like that, and he talks about getting a really good grasp of the case. He says, ‘I read every single paper that I’m given, so that I can understand the legal case of each side better than the lawyers themselves can understand it.’ He says, ‘I consume all of this information.’ I mean the guy must just have an analytical mind and memory.

Austin: Yeah, I think he does have and must have, and of course that’s borne out in probably 30 or 40 years of his work. The kind of work that he does is analyse all of that. That would not be my approach. I don’t think I’d actually be able to do that. So, I wouldn’t go there. And certainly from the legal context, saying that I have seen or insisted that one of our really successful senior counsel mediators here in a case, a four party case, and the thing was laden with lawyers. There were 32 people at the mediation, more barristers and solicitors than I’d ever seen before. Four brothers were fighting over an inherited piece of land, a good chunk of land, a really big farm in the midlands, and they’d been fighting for, I don’t know, four to six years. The relationship between them was so poor that we had to arrange five rooms, each of the parties had to arrive at different times so they wouldn’t meet. Any time these brothers meet, it ends up with the guarda at the street corner being called to stop the fight, so there was never a question of if these people were going to get together at all in a joint session.

And I watched the senior counsel mediator, convene the first meeting of all the leader teams, and I could immediately sense in that room that they had total respect for him, for who he was. He set out some ground rules from very, very early on and got some really good agreements from people that, number one, this case is not going to Court. And to get that from all the lawyers, that was number one. And number two, there was going to be a fair outcome. And it was a brilliant start, and it was settled at the end of the day.

Now, it was settled as far as the deal was done, but did it achieve anything in terms of the relationship between the four brothers and all the families and the extended families and everything else? Absolutely not. And I know when we were having a beer afterwards and chatting about it, he was wondering with me whether we might have tried to do something there. But anyway, the mediation was settled, and I do respect that senior counsel mediators who do the work that’s driven by their background and what they are.

And they’ll be successful because of that alone, there’s no question about it. So I respect that. He’s a great fellow.

Aled: Coming back to the mediation in Ireland, now, you mentioned an organization called ICMA. What are they about?

Austin: Yeah, they were set up about 10 years ago solely with the objective – a group of professionals, initially mostly lawyers, barristers, but now including accountants, architects, engineers, bankers, insurance people, with the objective of just growing, it’s an advocacy group growing the use of the awareness of mediation across the Irish business community. The last 10 years of that probably has been spent very much around educating, working with the legal profession. Out meeting bar associations, doing presentations to judges, and all sorts of different stuff, running conferences. Now the focus of late we’re trying to redirect that focus and focus the energies around trying to get to end users of mediation, and just encourage them, inform them, make them more aware around its existence in the first place, and indeed all the benefits that come with it for them. So that’s where we’re at. I suppose by definition, we have a shelf life, so if mediation becomes and when it becomes mainstream whether it’s because of legislation, and we were a big contributor to the draft legislation. That we would no longer be required, because it’s out there. So that is the objective. And it is professional, as they say, with lawyers, barristers and so forth driving that. And that’s what it does.

Aled: So it’ll be a case of, ‘My work here is done.’

Austin: Yeah. Hopefully. That’s what the plan is. 10 years in, I’m not sure anybody tried to forecast at the inception as to how long it would take, but I think we’ll still be going in 10 years’ time is what I’d imagine.

Aled: I’ve got a question around referrals. You talked a few moments back about lawyers and senior counsel being the gatekeepers. I know you talked about wanting to reach out and educate the users of mediation. Why educate the users of mediation and not really focus your energies on the sources of referral?

Austin: Well, a couple of things. In Ireland at the moment, there are 9,000 or 11,000 solicitors and 3,500 law firms in the country, and the infrastructure of all of that is that there are about 20 big firms, which might have 60, 80, 90, 100 partners, whatever it might be, and even the twentieth would only have 20 partners, but after that you come to a huge volume of sole practitioner, two partner, three partner spread out all over the country. And of course we’ve just gone through quite a catastrophic recession, and we’re still into it. And of course lawyers, not unlike anybody else, has suffered with that.

No conveyancing work because our property and our construction sector is gone, and very few transactions happen, and therefore if you’re a small solicitor in a firm down the country, a small town, and a case comes along which is litigation which you can handle, the tendency at this point is to hang onto that for income generation purposes. Added to which, and it’s not solely that, but the attitude is that if you’ve been trained as a lawyer all your life, you know about the law. This mediation thing is something that’s new, it’s not law, there’s nobody forcing you to do it, and you’re there protecting your case and we still hear back from particularly plaintiff lawyers, suggesting mediation is a sign of weakness. So you add all those things together, and the lawyers are not recommending mediation. So that’s a big stumbling block.

A couple of years ago I was at a talk here in Dublin, and a chap called Professor Doug Jones came over from Australia. He’s a great guy if you can get him on your video, by the way, and he’s an international arbitrator, solicitor, mediator, and he spoke at an arbitration event here, and he referred to commercial mediation in Australia as being client-led. And I just was absolutely blown over by that statement. How could that be? And he says that a number of years ago, the owners of businesses just got cheesed off at the cost of litigation, that it wasn’t delivering for them, so they set up their own mediation organisation. And I thought, ‘Bloody hell, we need some of that.’

So I’m thinking, the closest thing we have in Ireland at the moment to driving awareness of mediation is ourselves at ICMA, so we’re saying, now we’ve got to start driving. How can we start talking to the business community and get them to ask their lawyers, ‘Why are we not looking at mediation here, and if not, why not?’ And keep asking that question. If the payers, the guy who’s signing the check is asking his advisor the question, ‘Can I mediate this case?’ It has to be influential, and that’s the way we feel that we need to focus some of our efforts. And that might be talking to general counsel in our large corporates and whatever target audience here in Ireland. There are 600 U.S. companies operating here in Ireland. In the U.S. particularly, we’ve joined up with CPR from the U.S., to this idea of the corporate pledge, so we’re now encouraging U.S. companies in Ireland as well as indigenous companies to sign a very simple pledge that says, ‘In the event of a dispute, we will consider mediation.’ And that’s a simple thing, it’s not a commitment, it’s not a legally binding thing, it’s a spirit of mediation.

We’re in the process at the moment of going out into the business community, starting with the low hanging fruit which are the U.S. companies that have already signed up to the idea in America, and getting them to do it here. And that’s one of the things with the actions. We’ve also have developed a very interesting, well I think, a very nice video, which is sitting on our website if any of your listeners want to have a look at it, it’s ICAM, icma.ie, and it’s a 20 minute dramatised version of a mediation which people just might find interesting. That’s my sales pitch, by the way.

Aled: Okay, so I can understand now the rationale for going direct to the source, direct to users, and also U.S. companies that have signed the corporate pledge, and you talked about the state of the construction industry, and whilst there’s no conveyancing work, I’ve imagine there are a lot of construction cases going through the courts at the moment.

Austin: Yeah.

Aled: Where do you get most of your referrals from? And I’m asking thinking about someone watching this now, in Ireland, thinking about becoming a mediator or has recently gone through one of the mediation trainings, thinking, ‘What next? Where do I start? Do I jump on a panel? How do I get myself out there?’ Where did you get your referrals from, how did you get started? What’s your story?

Austin: The referral system in Ireland, for cases that are already with solicitors, perhaps barristers, has emanated from the arbitration system, and the arbitration system is where each lawyer would recommend three names, so I’ll often get phone calls from a law firm, and your first question, well, how did the law firm know about me, so I’ll come back to that in a moment, but actually they’re saying, ‘Are you available? Have you got a conflict of interest? Can we put your name forward?’ And the lawyers will do that thing where they try to agree on a mediator, that happens, okay, but as I said to you earlier on, the current state of play is that 8 to 9 times out of 10, I will not get appointed there. And even sometimes now I’ll say to the lawyer, ‘Listen, I’d love to have my name on the list, but I’d like to speak with the lawyer from the other side first, if that’s okay with you.’ And very much because there is still that thing where if the lawyer recommends mediation and then puts a name forward, the perception is ‘Oh my God, this is a ruse, what’s this mediation thing all about?’ and clearly that bloke Austin Kenny must be his man, so we can’t have him, so you’ve got to be careful around that choreography.
Aled: What sort of reaction do you get when you ask to speak to the other lawyer?

Austin: Generally speaking they’ll say ‘That’s fine, I’ll ask him’ But some of them say, ‘Well, no, I don’t think that would be appropriate at this point.’ In other words, they’re not sure why I’m saying that, and again it’s just a lack of understanding and awareness of how the mediation process works. But I get calls from lawyers, and I’ve sometimes had calls from lawyers, one in particular that I can recall where the lawyer has asked specifically for me to be the mediator, and has actually gone to the other side and said, ‘I’m recommending this person for mediation because of the following,’ and as it turned out, one was that, the parties were a large corporate on one side, and the other was an elderly couple, farmer, landowners on the other.

And this solicitor, who knows me, knew that I was quite happy and prepared to sit at the kitchen table for probably four hours, listening to the old couple tell their story through generations of land ownership and all that sort of thing, slowly and painstakingly. And at the same time put on the pin striped suit, and go into the board room in the other case and cut the mustard, if you like, with that sort of environment. And the solicitor on the other side happened to agree, and we got the case and it was great and we got it settled and it was good. It was a wise way to do, and I do hear lawyers saying, ‘Listen, we need to be better at selecting our mediators.’ This arbitration system doesn’t necessarily give us the best result, so we need to be better.

And therefore we need to be better at, the mediators need to be better at, as Woody Marston says, of writing their signature, saying who they are, putting themselves out there and marketing themselves better.

So to come back to my earlier point, the marketing work I do, mediation is a business like any other business, you’ve got to get out there and sell yourself and market yourself, and if you don’t do that, and you think because you were a professional accountant or solicitor, by putting your brass plate up at the the gate, that people will walk through. Well, they will not. The starting point we know for anybody looking for anything these days is ask Mr. Google, so if you don’t have the presence with Mr. Google, you don’t exist. And you know that, I don’t need to tell you that, but you need to just keep promoting it. And that’s the online thing, and I’m no expert on it, but you need to get advice if you don’t understand it to see how you best use it, how to use social networking and all that sort of thing.

The other way again is just face to face meetings with lawyers, and presenting yourself to lawyers, and I would very regularly do presentations to law firms. I’m part of the CEDR panel here in Ireland, so part of my job with them is that I have to go and do presentations. But even outside of that I regularly do presentations to law firms. And you know it would largely be I suppose the bigger firms, who have sessions for all their young litigators, and during their lunch time and sit with them for an hour and just talk through the whole thing and tell stories.

So it’s just the [inaudible 44:48] that they get your name, I mean even being part of promotion of mediation through ICMA certainly has been good for my profile. It’s helped. I do believe I’ve worked hard for that and partner [sounds like 44:58] with that, but it just gets me out there in the fraternity. And if my fraternity referral source is predominately law firms, well I have to look and analyse where do they go? Where do they go on holidays? Where do they drink pints? What are the things that they do that they need to see my face at, just to keep me out there all the time? So there are lots of things you can do, but you just need to work very hard at that. You’ve got to lift that marketing wheelbarrow every week at your business, or it just won’t happen for you.

Aled: It’s interesting, you talk about on-line presence, and the importance of that, and I haven’t assumed, and in fact a lot of the mediators I’ve spoken to haven’t mentioned the source of referral from inquiries through their websites. So it’s interesting that you say that.

Austin: And on that point Aled, I have experienced, I keep a very close track of all my numbers, where the referrals come from, and there’s a growing number of those where frustrated business people, in a dispute, maybe without even involving the lawyers, or maybe because they have had disputes before with lawyers and they just don’t want to go there, and are browsing around, and they look at my website and see, ‘Ooh, I wonder.’ I’ll get a phone call, ‘Listen, I’ve got this situation, I’m wondering can you help me?’ They don’t necessarily come to me saying, ‘I understand mediation, I know what it’s all about, and I’d like you to pitch for the work,’ but they’re saying, ‘I’ve got this problem, do you think there’s anything that can be done with it?’ And I have to say I experience a really good hit rate for those phone calls, if I can use that terminology.

A hit rate from guys coming up with a problem saying “Yes, I think I can.’ But invariably I say to them, ‘We have to be careful how we choreograph this. I will agree to speak with you on the basis that you will also allow me to speak to whoever your opponent or your opposition is here.’ So that it’s very clear from the beginning that I’m not anybody’s man, impartiality and independence are what a mediator lives by, it is absolutely understood by both parties. And once I generally get to that point, I know I’m in and going to get the work, and we have a really good chance of getting it fixed.

Aled: So inquiries through having a presence online. You talked about speaking regularly, speaking engagements to law firms. How do you get those? I’m trying to articulate coherently what I’m trying to say. How do you go from thinking, ‘All right, I need to go and speak at a law firm,’ to actually doing it? What are the steps that you go through to get that appointment?

Austin: If you don’t already know anybody, you’ve got to go and you’ve got to cold call. You’ve got to write letters, you’ve got to send emails, you’ve got to just call up and say, ‘Listen,’ and Ireland is a small enough place, it’s not that hard to find somebody who knows somebody here or there. I’m not sure the U.K. is the same, maybe it isn’t. And certainly my background of 30 years I’ve been out in business, of course I know lots of people, so the low hanging fruit is the people that you know. But the easiest thing in the world is when you go to speak with somebody you know, who knows you and it’s a warm phone call, you can say, ‘Is there anybody else you can recommend me to, or I could be talking to?’

So you’re kind of moving on and moving on and moving on, you just kind of keep asking and keep after it. The other thing is that when you have done cases, with lawyers particularly, the cases that have been successful, and thankfully my success rate is pretty good. But you go back to those ones, because getting a new customer they always say is an expensive thing, but nurturing the customers that you have, nurturing the referral sources you already have – so in any mediation you go to, there are two law firms. If it’s a successful outcome, you now have two people who think that you’re bloody good at your job, so you just keep talking to them. You keep them on the mailing list, you keep doing whatever you need to do. You ring them up every three months, you go and meet them for a coffee or lunch or whatever, ‘How are things going?’ You can hard sell, or soft sell, whatever suits you, but you’ve got to do it. You’ve got to get out there and do it. Sitting behind the brass plate will not work.

Aled: Sitting behind the brass plate won’t, you’ve got to get out of the building.

Austin: You’ve got to get out and do it.

Aled: And what would you speak about? What presentations would you do?

Austin: With law firms generally, I have a couple of different ideas. One, I’ve got 10 things about how to get the best value out of your mediator, how to get the mediator working for you. And I set out ten different pointers. And a lot of them are just going through the processes of mediation that we all understand from the very start, working with the mediator themselves, and not fighting. You know, sometimes litigators, because they’re so used to fighting, they feel they should fight with the mediator all the time, so every time he comes back into the room there’s a row over, ‘Oh, are you doing enough for us? You’re spending too much time with them,’ and all this sort of nonsense. I mean, how is that going to ingratiate yourself?

So using the mediator as a strategic partner in mediation, for lawyers, is advice that’s really important. Sometime even having to take the mediators aside as the lawyer, and tell the mediator in confidence the issues that you’re having with their client, and that can often be the case. There’s often been the case that the client or the party hasn’t been terribly honest with the solicitor, and things are only starting to unfold on the day of the mediation. So solicitors can play a role where they can be just playing the tough guy all the time and trying to be seen as the hard one, fighting, fighting, fighting. But as we all know, it doesn’t work in litigation, so it’s not really going to work, how’s it really going to work in mediation? Not at all.

So it’s working with the mediator as a strategic partner, and using the creativity, and you know the mediator as a party and as a solicitor you know the mediator has got both sides of the story, so how can you work that mediator to make sure that all the choices, the ones that you can’t work out, all the creativity and the different ideas or whatever, to suck that out of the mediator in the confidence of the private session albeit, but so that you can advance the thing on.

Aled: I like that as a topic, actually. Ten ways to get the most or the best out of your mediator in a mediation. I mean, there’s a workshop in there, Austin.

Austin: You know, the first one is the interview. You know, I go to law firms and said, ‘Have you got a resource of mediators? Have you interviewed all the mediators you would potentially use?’ And I’ll often throw out a name. We’ve got some very high ranking senior counsel here and names, okay, and the hierarchy of the league of professions suggests that judges are up there, the next are the senior counsel, and there are guards, the ones that are really good are guards. And the concept that a young litigator inside in a law firm somewhere would actually invite their senior counsel down to be interviewed as a potential mediator, often gets guffaws and laughs and all the rest of it. So they go with their reputation.

So I’m saying, ‘Are you not taking a huge risk for your client, bringing somebody in that you’ve never worked with before, maybe you have as a litigator, but not as a mediator? Is that not a huge risk?’ In what other area of expertise would you bring somebody in based on maybe their reputation, sitting down and talking to them. Not only about how they mediate, but what their process is going to be? Are they going to be available all day long? Are they going to meet clients in their [inaudible 52:49], are they even going to talk to the parties, and indeed when it comes five o’clock, and whatever other bit of business has to be done around the law library, will they still be in the mediation and not gone off to do something else? And this is borne out by some of the bad experiences we’ve had here.

So I say, ‘I’m here. Interview me. Bring me in, and talk to me, and learn about me, and I’ll talk to you.’ And the upshot of that is that person, that solicitor, in recommending me as a mediator, knows a hell of a lot more about what they’re going to get in mediation then where they have not interviewed somebody. So I think that’s a tip for all of them, but it may not work, realistically, but it’s probably something that should work. And it will in time.
Aled: That’s a great tip, actually. That’s a really good tip. And lastly, coming onto panels now, the topic of panels. Now, I’ve done a couple of interviews recently where some people think panels are really a good, helpful concept, not just because you can pool your resources and economies of scale, from a marketing and advertising perspective, but also to use panels, particularly if it’s a small panel and you’ve got a particular issue or a dilemma or problem, you can just pick up the phone and call one of your colleagues on the panel and bounce some ideas off.

Then there are others that think panels are just not helpful because it’s kind of diluting the resources. What’s your view on panels? How are panels working in Ireland? Are there lots? Are there just one or two? What are your thoughts there?

Austin: I think what we should do is just extend that piece out to include service providers. There could be a dozen panels in Ireland at the moment, and on the ICMA, our website, we have a list of mediators. Now all it is is a listing of mediators, and many of the panels that are there are just listings of mediators. There are others that are moving toward being service providers, and as you may know, CEDR have come into Ireland and they’ve been training mediators here for 10 years, but they come in now as a service provider. So a service provider with a panel is someone who’s offering something a little bit more. So in other words, you can potentially, as a party or solicitor, come to your service provider and say, ‘I’ve got this mediation case, how can you help me?’ And the service provider would say, ‘Yes. Tell us about your case, and what we can do is actually go to our panel and recommend a mediator for you, or indeed if you see somebody on the panel that you know or you’ve worked with and you like that person, that’s absolutely fine.’

So I think that the distinction between a service provider and just a listing of people. A listing of people is no different than that, except you’ve got a profile of an individual and you decide maybe, that’s the kind of person we’d like, or let me learn a little bit more about them, we just decided we’d take that person and we talk to them.

But the service provider is an interesting dynamic because, if you have a scenario as we have in Ireland where the understanding and use of mediation is at a low level, one solicitor recommends for another solicitor a mediation, the other guy thinks, firstly, is this a ruse? Secondly, you want your mediator in there, he’s on your side, you must be joking, we’re not doing this. Whereas if any solicitor in environment we’re in, recommends that, ‘Let’s give the case to a service provider, a recognised one that’s out there, and let them manage the process, let them decide who the mediator is going to be, and blah, blah, blah.’ And that kind of takes a bit of the ‘us versus them’ thing out of this. And you know, sometimes mediations fall down at a very early stage because either as they say people are nervous because they don’t understand, because they think it’s a bit of a ruse, and that appointing somebody… I think that can be a very useful thing.

It’ll happen sometimes we’ve got the big firms in Ireland who will recommend mediation up against a small country firm that don’t understand, and I think pulling someone in there to manage the process who is clearly independent, who actually doesn’t cost any more to the parties. Because invariably with those scenarios, the mediator and the service provider has a deal where there’s a fee arrangement, so it doesn’t actually cost any more to do it. It might encourage people to do mediations in a case that it might otherwise fall down.

But panels generally are really just a signpost, and you go in and have a look and you decide yourself, and maybe you pick up the phone and you talk to somebody. There’s no other way of getting to mediators in Ireland, so, I don’t think they are a bad thing. But IO think using them as a starting point, and then pick up the phone and have a chat with the guy and invite him in for a cup of coffee, and talk to him and interview him, that’s what I would say.

Aled: Okay, Austin, that’s really really helpful. I just want to finish this interview by asking you what one piece of advice would you give someone in Ireland, either they’re just starting out, they’re contemplating training to become a mediator, what would be just the one piece of advice you’d give them?

Austin: Okay, given that my background is in business consultancy and advice, I think this answer could take an awful long time. We’re on a time limit, so I’ll try that it won’t take.

The first thing is this, right now in Ireland, there is no marketplace for full time mediators. Okay? So whatever your business plan is about becoming a mediator now, if for instance, you are financially independent and you don’t need to generate any income from mediation, that’s fine, just get started. But if you need to maintain an income with whatever other work it is that you do, and we see in Ireland, our senior counsel are still working as litigators or solicitors are still working in law firms, and they’re doing bits of mediation. Our accountants and engineers may still be doing the practice work that they do, and they’re doing little pieces of mediation.

I work as a full time mediator, but I don’t have full time mediation work, so therefore I continue to do other pieces of work, because you know it is a business for me. That’s where it’s at at the moment in Ireland, so do not think that you can stop the job that you’re at right now and become a financially independent working mediator, it will not happen. So, therefore, the first and second piece of that is, and we spoke about it earlier on so I won’t dwell on it too much, is the marketing piece. You’ve got to get out there and market and sell yourself, you have to do that. The work will not come to you. So you’ve got to get out and push that wheelbarrow, I think it’s the most important thing.

If you’re a member of the league of professions, it seems that you’re in a much better position to get work, and those of us who are not, so maybe you need to work less hard at that, but you still need to work and you still need to do it.

Aled: Brilliant, pushing the wheelbarrow. What’s the Irish, what’s the song, pushing a wheelbarrow?

Austin: Maybe you’re thinking of, ‘Don’t forget your shovel if you want to go to work,’ is that the one?

Aled: ‘In Dublin’s fair city’ –

Austin: ‘Where the girls are so pretty’

Aled: ‘I once met my’ –

Austin: ‘First set my eyes on sweet Molly Malone.’

Aled: ‘She pushed a wheelbarrow’ –

Austin: ‘She pushed a wheelbarrow through streets broad and narrow.’ Correct, well done. And that was the end of ‘Sweet Molly Malone.’

Aled: Yeah, that was the end of ‘Sweet Molly Malone.’ Austin, look, it’s been great catching up, I really appreciate your time this morning and all the helpful information, particularly for those out in Ireland, but more generally for mediators thinking about the things that we can do to improve our referral rate, to create more connections with others, to elevate our profile, to organise ourselves in readiness for this big uplift in demand for mediation that is on the horizon, allegedly.

Austin, if people want to reach out to you, say thank you, get in touch, find out a bit more about what you do, ICMA, all these other organisations or pro-bono work, or even hire you as a mediator, what’s the best way of them getting in touch with you?

Austin: My website is there if you want to have a look. Now it’s being reconstructed at the minute, but that’s austinkenny.ie, my email address is , easy enough to remember, and I’ll get back to you from there, that’s probably the best way to do it.

Aled: Fantastic. Well, let me be the first to say thank you. Austin, thank you very much.

Austin: Thank you Aled.

Aled: And all the very best with your mediation career.
Austin: Thank you.

About the mediator

Austin Kenny Profile Pic

An independent mediator and business consultant with a strong accountancy and business background, Austin is also chairman and non-executive director of three companies. Austin also has experience in the property, manufacturing and retail sectors. Austin was accredited as a CEDR mediator in 2004 and has since completed the MATA advanced mediator training in 2008. He has been a practitioner member of MII and panel member of International Mediator... View Mediator