VIEW, Issue two, 2012


Page 19 Mediation - a better way?


n its recent publication ‘100 Lessons to be Learned – themes and trends from the Charity Commission for Northern Ireland’s first 100 concerns received about charities’, published in January 2012, one of the key themes outlined by the commission was the damage caused to chari- ties when disputes arise within a charity. Jenny Ebbage, who heads the charity team at Ed-


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wards & Co solicitors, said: “We have found that mediation is a very effective way to resolve a dis- pute without the requirement to engage in costly and time consuming litigation.” Unfortunately, disputes do arise between mem- bers of a board of trustees of a charity and the Charity Commission will not be able to intervene in every case nor does it have a remit to do so un- less the assets, reputation or beneficiaries of the charity are at risk. Many charities have found that using a mediator is the best way forward to settle a dispute or dis- agreement between the trustees. In recent times many solicitors include a dispute resolution provi- sion in the charity’s governing document requiring the parties to a dispute to try to settle it by media- tion before resorting to litigation. Dorcas Crawford is the senior partner in Ed-


wards & Company solicitors in Belfast and has been practising law for 25 years. She is one of only a handful of Centre for Effective Dispute Resolu- tion (CEDR) accredited mediators in Northern Ireland and recently used her skills to resolve a legal battle between the Diocese of Down and Connor and the former Catholic cleric, Pat Buck- ley.


years of entrenched legal battling and at the end of it all – one party saddled with heavy costs and a sense of unredressed grievance. Except that’s not what happened in this case. “The settlement between Pat Buckley and the Catholic Church over a residency dispute – which has ultimately satisfied both parties – came about not through four days of traditional legal wrangling, but through a process of professional mediation. “Mediation has been an option in legal disputes


“A legal dispute over adverse possession, three


Jenny Ebbage and Dorcas Crawford Edwards & Co Solicitors


for the last 20 years in Northern Ireland but as a practice it is still in its infancy compared to parts of the UK and the Republic. “Not just an option in family law cases, media- tion is now being increasingly recommended by the


‘Taking a case to court can be a destructive process’


judiciary in a variety of cases before they come to court, particularly in the fields of commercial law and clinical negligence. The distinct advantages that mediation can offer all parties compared to tradi- tional legal remedies mean that it should play a key role in cases in the future. “In this particular instance, each party was ab-


solutely convinced of the quality of his case. How- ever, deadlock ensued and only mediation was capable of delivering a resolution where conven- tional legal methods had failed. “There are many real advantages to mediation.


two days in the High Court, which could quite rea- sonably be expected to total £50,000 in fees. For charities in particular, this has to be an essential consideration. “In addition to this, mediation can be quickly en-


acted, whereas litigation can be a drawn-out, time- consuming process. “At the extreme end of the scale, a clinical negli- gence case I was involved in took 11 years from initiation to conclusion. That’s a lot of heartache and stress that might have been avoided, if media- tion had been seen as an option. “But it’s not just in financial terms that mediation has the advantage over litigation. Taking a case to court can be a destructive process. So many dis- putes could be resolved to the relative advantage of both parties through the application of creative solutions – bringing into play options and ideas that just aren’t possible for a court to countenance be- cause of established precedent. “The effectiveness of mediation comes from the fact that it can encourage a collaborative, rather than competitive approach to problem-solving. Whether in an employment tribunal or a commer- cial partnership, mediation offers parties the chance to continue potentially valuable relation- ships and an experienced mediator can draw the sting from a debate. “The agreements that are produced are legally


enforceable, so mediation is not just a ‘talking shop’. It is capable of producing agreements that bind.


every situation, but the simple fact is that the legal status quo won’t do. Cases that are ready to be listed are seeing court dates in 2013 and those concerned about access to justice should recognise that for a fraction of the cost, people are seeing better results.


First, and perhaps most pertinently for many par- ties, there are huge sums of money to be saved. “Two days of mediation will cost in the region of £3,000 to £5,000 – compared to a case listed for


“No-one is claiming that mediation is a panacea – but if more people are aware that it is an option, then there’s the chance that it can help fix feelings, which is something that litigation can never do.”


“Of course mediation is not appropriate for


Assembly urged to pass amendment to Charities Act


The Charity Commission has called on Northern Ireland’s politicians to pass an amendment to the Charities Act as soon as possible. Registration of charities here has been delayed due to unclear wording in the legislation about the public benefit test – which proves charities are helping society.


“The Northern Ireland Assembly and Minister for Social Development are now in the driving seat in scheduling the legislative amendment, Frances Mc- Candless, chief executive of the Charity Commis- sion, said. “Main registration is likely to open in early autumn 2013. The commission would like the legislative


amendment to be passed as quickly as possible, giv- ing us the green light to begin to register the esti- mated 7,000 to 10,000 Northern Ireland charities." The Charity Commission is planning to hold a public consultation on public benefit guidance for charities in Northern Ireland at the start of next year.


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