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Consultation Paper on Alternative Dispute Resolution - Law Reform ...

Consultation Paper on Alternative Dispute Resolution - Law Reform ...

Consultation Paper on Alternative Dispute Resolution - Law Reform

ALTERNATIVE DISPUTE RESOLUTION (LRC CP 50 – 2008)

  • Page 3: CONSULTATION PAPER ALTERNATIVE DISP
  • Page 6 and 7: MEMBERSHIP Law Reform Commission co
  • Page 8 and 9: ADMINISTRATION STAFF Head of Admini
  • Page 10 and 11: ACKNOWLEDGEMENTS The Commission wou
  • Page 12 and 13: E Preventive ADR Processes 41 (1) N
  • Page 14 and 15: G Other Developments in Ireland 160
  • Page 16 and 17: (3) European Small Claims Procedure
  • Page 19 and 20: TABLE OF LEGISLATION Arbitration (I
  • Page 21 and 22: TABLE OF CASES Aiton Australia Pty
  • Page 23: Venture Investment Placement Ltd v
  • Page 26 and 27: encourage parties to reach a soluti
  • Page 28 and 29: memorial to victims of a perceived
  • Page 30 and 31: (9) The main focus of the C
  • Page 32 and 33: 25. In Chapter 8, the Commission ex
  • Page 34 and 35: (i) Development of a Dispute 1.04 D
  • Page 36 and 37: issues, streamline legal arguments,
  • Page 38 and 39: specialisation in some areas…and
  • Page 40 and 41: 1.20 When deciding which dispute re
  • Page 42 and 43: Commission notes in this respect th
  • Page 44 and 45: 1.32 The role of the legal professi
  • Page 46 and 47: official judge for the area earned
  • Page 48 and 49: (3) Development of Civil & Commerci
  • Page 50 and 51: Family Support Agency Act 2001; Civ
  • Page 52 and 53:

    assigned to different processes.‖

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    1.59 The Woolf Reports led to the e

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    (ii) European Commission (I) Green

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    combination of different mechanisms

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    2 CHAPTER 2 ADR PROCESSES & TERMINO

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    C Definition of ADR 2.06 In general

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    2.14 This spectrum can also be grou

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    2.22 Principled negotiation refers

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    (3) ADR Clauses 2.30 An ADR clause

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    are satisfied with the agreement, a

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    2.42 Advisory processes include for

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    2.50 The arbitrator is usually sele

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    2.55 Arb-med is a process where the

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    esolve the dispute in a quickly, en

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    livestock grants; entitlement to lo

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    2.78 In 2007, 4,374 complaints (2,4

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    Ombudsman may make a ruling even if

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    Defence Forces where these have not

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    conducting the mediation process, t

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    competent body, or giving advice on

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    It is often described as a means of

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    connected with the claim. After the

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    3 CHAPTER 3 GENERAL PRINCIPLES AND

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    and that nothing is lost by attempt

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    3.16 If an element of compulsion is

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    the court orders that one party is

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    (i) Small Claims Mediation Pilot Sc

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    3.34 If a case was referred to medi

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    mediation rooms and the Mediation C

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    officer acts as adviser for all int

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    (b) ADR is made mandatory by a stat

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    ability of counsel and parties to d

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    whether to use the scheme is entire

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    (ii) Higher Uptake of Voluntary Med

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    important factors in determining ou

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    administrative support from the cou

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    3.96 The Commission provisionally r

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    dispute, since the courts will not

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    (iii) To prove the existence of a c

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    3.119 In Chantrey Vellacott v Conve

  • Page 133 and 134:

    J. approved four criteria favoured

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    (5) Conclusion 3.133 Confidentialit

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    power over the resolution and outco

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    (17) In order to ensure that proced

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    (1) Cost Efficiency 3.157 Mediation

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    in the same conflict situation. 181

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    88%. 187 This is slightly lower tha

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    and the promise of a permanent memo

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    that he or she withdraw from the ca

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    3.195 The 2008 Directive applies to

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    confidentiality statute that includ

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    (c) provide information about their

  • Page 157:

    y the expiry of limitation or presc

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    more concerned with alleged violati

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    ―There is no reason why employers

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    industrial action where these have

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    With the objective help of the IRO

  • Page 168 and 169:

    Service became involved with the pa

  • Page 170 and 171:

    small groups of employees and indiv

  • Page 172 and 173:

    expects that it should take no long

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    D The Equality Tribunal 4.42 The Eq

  • Page 176 and 177:

    ensure that both sides can give inf

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    and hepatitis tests may be required

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    Hear appeals from Rights Commission

  • Page 182 and 183:

    4.68 EAT determinations can be enfo

  • Page 184 and 185:

    G Other Developments in Ireland (1)

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    5 CHAPTER 5 FAMILY DISPUTES & ADR A

  • Page 189 and 190:

    court would proceed with the hearin

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    focuses on how mediation can speed

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    5.19 In the evaluation of the infor

  • Page 195 and 196:

    family consultants) under the 1975

  • Page 197 and 198:

    eferral‖ after an application for

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    Parenting - how will the children s

  • Page 201 and 202:

    5.43 The Commission acknowledges th

  • Page 203 and 204:

    law in 2006. 63 This indicates that

  • Page 205 and 206:

    unfair burden on them and the media

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    5.64 According to the American Mode

  • Page 209 and 210:

    insist on the application of the or

  • Page 211 and 212:

    the mediator explains the help that

  • Page 213 and 214:

    ill was 435 days, or over 14 months

  • Page 215 and 216:

    Funding was allocated to 24 family

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    A certificate stating that the pers

  • Page 219 and 220:

    programmes have been introduced in

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    application for separation, divorce

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    for cases not proceeding to mediati

  • Page 225 and 226:

    5.126 In June 1999, the Mediation C

  • Page 227 and 228:

    5.133 The Legal Aid Board, which pr

  • Page 229 and 230:

    5.138 The Commission considers that

  • Page 231 and 232:

    Parties will make timely, full, can

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    een achieved by a court order.‖ 1

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    The Family Law Act 1975 should be a

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    senior judiciary and rule committee

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    the will or otherwise. 193 In makin

  • Page 241 and 242:

    6 CHAPTER 6 MEDICAL ISSUES & ADR A

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    provide parties to a medical disput

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    (2) Flexibility & Creativity of Med

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    6.18 The statute defines ―benevol

  • Page 249 and 250:

    circumstances could one facilitate

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    the 12 mediated cases, the report s

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    efore they can proceed to court. 55

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    7 CHAPTER 7 COMMERICAL DISPUTES & A

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    disputes that arise. These include,

  • Page 259 and 260:

    C Commercial ADR in Ireland 7.11 Ir

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    ―... all disputes... shall be res

  • Page 263 and 264:

    may provide a template for contract

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    ―Ensuring the continued growth…

  • Page 267 and 268:

    (v) is likely to make a substantial

  • Page 269 and 270:

    organisation. ”49 The Report argu

  • Page 271 and 272:

    een noted in this respect that the

  • Page 273 and 274:

    (e) Confidentiality 7.58 The confid

  • Page 275 and 276:

    7.66 The Commission provisionally r

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    (c) Irish Commercial Mediation Asso

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    has implemented the UNCITRAL Model

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    (4) Court of Arbitration for Sport

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    processes such as mediation, to lit

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    C ADR Mechanisms for Resolving Dome

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    Establishing private sectoral compl

  • Page 290 and 291:

    that offence.‖ These provisions a

  • Page 292 and 293:

    under the 2006 Financial Regulator

  • Page 294 and 295:

    (II) Tour Operators Holiday Package

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    efund for the consumer, plus the ad

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    Develop consumerconnect.ie to inclu

  • Page 300 and 301:

    on principles applicable to bodies

  • Page 302 and 303:

    written procedure but the Court may

  • Page 304 and 305:

    therefore entirely voluntary. This

  • Page 306 and 307:

    8.52 Similarly, Forfás recommended

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    need to attend court. 97 Of all app

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    statutory Consumer Dispute Commissi

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    success rate of mediated outcomes.

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    9.04 The Irish Courts have repeated

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    financially and emotionally, can fa

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    9.16 When the High Court hearing re

  • Page 320 and 321:

    community based organisations. It i

  • Page 322 and 323:

    9.29 The PRTB operates a two-stage

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    9.37 Failure to comply with a deter

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    9.44 The Report referred to a pilot

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    10 CHAPTER 10 TRAINING AND ACCREDIT

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    There is concern that mediators wit

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    professional practice of mediation

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    (1) The Netherlands 10.18 In the Ne

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    a complaints system that either mee

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    (3) Civil Mediation Council of Engl

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    10.41 The Chartered Mediator design

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    will then build up IMI education, e

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    Ministry of Justice, which will the

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    essential foundation for a fully fu

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    11.04 As the Commission has previou

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    11.10 The general approach of the E

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    ecome infected with the conciliator

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    have a fundamental role in integrat

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    making a judgement, not about the d

  • Page 360 and 361:

    mediation participants…. With an

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    Whilst the Court of Appeal did not

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    to follow the court‘s earlier sug

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    11.57 The importance of the Halsey

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    party that the successful party unr

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    invite submissions on this issue an

  • Page 372 and 373:

    of the Rolls in England and Wales,

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    12 CHAPTER 12 SUMMARY OF PROVISIONA

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    12.18 The Commission provisionally

  • Page 379 and 380:

    attempt mediation or conciliation i

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