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

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ACKNOWLEDGEMENTS The Commission would like to thank the following people who provided valuable assistance: Mr Mark Appel, Senior Vice President, International Centre for Dispute Resolution Mr James Bridgeman, SC Ms Claire Bruton, Barrister-at-Law Dr Nael Bunni, Chartered Engineer, Bunni & Associates Mr Andrew Burr, Barrister, Atkins Chambers Ms Rosaleen Byrne, Partner, McCann FitzGerald Solicitors Mr Oliver Connolly, Barrister-at-Law, Friary Law Chambers Ms Karen Erwin, President, Mediators Institute of Ireland Mr Ciaran Fahy, Vice Chair, Chartered Institute of Arbitrators. Ms Rachel Fehily, Barrister-at-Law Mr Jonathan FitzGerald, Barrister-at-Law, Friary Law Chambers Mr Brian Hutchinson, Barrister-at-Law and Vice Dean School of Law UCD Mr Joseph Kelly, Partner, A & L Goodbody Solicitors Ms Mary Lloyd, Family Mediation Service Mr John McBratney, SC Judge Petria McDonnell, Judge of the Circuit Court Mr Patrick Meghen, County Registrar, Limerick Mr Colm O hOisin, SC and Chair Bar Council of Ireland ADR Committee Ms Polly Phillimore, Family Mediation Service Ms Paulyn Marrinan Quinn, SC and Ombudsman for the Defence Forces Mr Nathan Reilly, Barrister-at-Law However, full responsibility for this publication lies with the Commission. viii
TABLE OF CONTENTS INTRODUCTION 1 A Background to the project 1 B The Commission‘s approach to alternative dispute resolution 1 (1) The role of the courts in encouraging parties to agree solutions 1 (2) Delays in the court process and the development of ADR 2 (3) The response to delays in the court process and related services 2 (4) Efficiency, including cost efficiency 2 (5) Other benefits of ADR, including flexibility 3 (6) An integrated approach to dispute resolution 4 (7) Individual and collective dispute resolution 4 (8) Collective disputes and regulatory bodies, including Ombudsmen 5 (9) The main focus of the <strong>Consultation</strong> <strong>Paper</strong> 6 C Outline of <strong>Consultation</strong> <strong>Paper</strong> Chapters 6 CHAPTER 1 ALTERNATIVE DISPUTE RESOLUTION IN CONTEXT: ORIGINS & DEVELOPMENT OF ADR 9 A Introduction 9 B Resolution of Disputes 9 (1) The Nature of Disputes 9 (2) Dispute Resolution & Civil Justice 12 (3) Appropriate Dispute Resolution 15 C The Development of ADR: An Overview 20 (1) ADR in Classical Times 20 (2) ADR in Traditional Societies 21 (3) Development of Civil & Commercial ADR 24 D Conclusion 34 CHAPTER 2 ADR PROCESSES & TERMINOLOGY 37 A Introduction 37 B ADR Terminology: An Overview 37 C Definition of ADR 39 D Classification of the ADR Spectrum 40 ix
Page 1: ALTERNATIVE DISPUTE RESOLUTION (LRC
Page 5 and 6: LAW REFORM COMMISSION‘S ROLE The
Page 7 and 8: LAW REFORM RESEARCH STAFF Director
Page 9: CONTACT DETAILS Further information
Page 13 and 14: D Self-Determination 112 (1) An Ove
Page 15 and 16: (2) Flexibility & Creativity of Med
Page 17: (2) Australia 312 (3) Civil Mediati
Page 20 and 21: Garda Síochána Act 2005 2005, No.
Page 22 and 23: Hall v Pertemps Group Ltd [2005] EW
Page 25 and 26: INTRODUCTION A Background to the pr
Page 27 and 28: thing as a free conflict resolution
Page 29 and 30: industrial relations disputes direc
Page 31 and 32: 18. In Chapter 1, the Commission pr
Page 33 and 34: 1 CHAPTER 1 ALTERNATIVE DISPUTE RES
Page 35 and 36: their every day lives, such as chil
Page 37 and 38: of the pyramid to the least common
Page 39 and 40: discuss non-financial remedies ensu
Page 41 and 42: Mediation or determination by an ex
Page 43 and 44: the time the process might take, th
Page 45 and 46: organisation advocated that commerc
Page 47 and 48: econciliation. 50 Family disputes a
Page 49 and 50: conclusion. 57 According to records
Page 51 and 52: 1.52 Beginning in the late 1960‘s
Page 53 and 54: what later became known as the ―M
Page 55 and 56: civil case in which mediation canno
Page 57 and 58: (III) Directive on Certain Aspects
Page 59: 1.74 The Commission concurs with th
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definitions of the terms. It must b
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esolution. Within the family law ar
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esolution procedures to deal with g
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(2) Partnering 2.25 Partnering is a
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Federation. If a settlement of a di
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dispute. 36 In evaluative mediation
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to negotiate an outcome that they c
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without modification. This approach
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Ombudsman‘s to resolve complaints
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arising in the first place and thus
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or less (SMEs), and unincorporated
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(c) Office of the Pensions Ombudsma
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(d) Ombudsman for Children 2.87 The
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(f) Garda Síochána Ombudsman Comm
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against a barrister or solicitor. A
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2.112 Judicial ADR processes are we
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settlement is not reached, the advi
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neutral and independent third party
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B Voluntary Nature of ADR Processes
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4. Access to court is denied, where
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mediator's appointment, unless all
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(4) Court-Annexed ADR Schemes 3.25
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ased a considerable distance away f
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Advice Bureaux and 5 were referred
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including a simple self test in whi
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3.54 The main objectives of the cou
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Toronto. Under the OMMP, cases are
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(iii) New South Wales 3.66 The Civi
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actually mediated during the year.
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mediate in order to avoid potential
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that judgment was necessary; that l
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mediation, that does not in itself
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that the confidentiality of all par
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held that communications made in a
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and communications made during it.
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the absence of a waiver by both par
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3.130 The Court noted that the poss
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interest in fostering mediation. Ho
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choice of Mediator, content of proc
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3.153 The Commission provisionally
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29% said that costs had been increa
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undertaken for improper strategic p
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3.172 Estimates of time saved as a
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an agreement by one party to do som
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status of any agreed solution for r
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unique position to evaluate the sit
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(3) Self Determination 3.205 Return
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settlement and the obligations flow
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4 CHAPTER 4 EMPLOYMENT DISPUTES & I
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elationship restored and enhanced.
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disputes as well as stable, high qu
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explore the possibilities for a set
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potential clients. 35 In its Strate
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are written in consultation with em
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Case Example: Rights Commissioner S
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Services Division. A group of 8 med
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case for mediation to an equality m
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outcomes of the 65 Employment Equal
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Establish Joint Labour Committees a
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investigated 100 cases which were s
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more informal inquisitorial model t
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• high performance/ high commitme
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5.03 The Commission also recommende
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a variation of an existing order fo
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disputes arising by ensuring that p
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the provisions of the plan became l
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D Counselling 5.31 In its 1994 <str
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E Mediation (1) Family Mediation: A
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Mediation offers the parties an opp
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for guardianship to discuss the pos
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order for parents and mediators to
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mediators had ever consulted school
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mediators must uphold throughout th
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5.76 There are approximately 150,00
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5.82 At the pre-mediation informati
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5.88 Custody mediation is an early
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(i) Phasing in Mandatory Mediation
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(d) reporting to the court (e) advi
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(i) Child Protection Mediation Prog
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not resolve the matter, a hearing d
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(f) Hong Kong 5.124 Divorce is a gr
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asis. 149 It was also recommended t
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5.135 An Association of Collaborati
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sets out certain fundamental provis
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5.148 Collaborative law is now wide
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on a collaborative basis and at a p
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or to make any necessary orders. 18
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(3) Public Awareness Campaign 5.167
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limitations to the difficulties and
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(d) The success rate is lower than
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Case Study: Medical Complaint to Om
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apologies should not be used simply
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explanation without these being con
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step should be taken in the remitte
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appropriate way of resolving the pa
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6.40 This scheme has not been imple
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7.03 Commercial disputes can lead t
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for improved relations among the pa
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efore any dispute arises. 19 Consis
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Rules of Court] and as reflected in
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Superior Courts (Competition Procee
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Provide for the costs of any ADR pr
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increase toward the end of the peri
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large financial outlay and exposure
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have attended courses on conciliati
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judge very early in the proceedings
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membership includes practitioners i
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sporting context save for anti-dopi
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Branch), and Chambers Ireland. Its
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8 CHAPTER 8 CONSUMER DISPUTES & ADR
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court procedure…mechanisms of ADR
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or more commercial practices) who a
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The Commission has already noted th
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(c) Other Regulators 8.19 The Commi
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members of their industry. Many suc
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D Cross Border Consumer Disputes (1
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with the Department to nominate sui
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complaints, best practice and futur
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that comply with the principles of
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online mediation, and online arbitr
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conciliators and adjudicators. This
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cost is the €15 fee which is paya
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usually settled at a meeting with t
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8.68 When a decision is reached by
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9 CHAPTER 9 PROPERTY DISPUTES & ADR
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It has been noted that a formal leg
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in 2006 seeking a declaration that
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9.19 A similar development has also
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opportunity to address any other un
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9.34 Mediation at the PTRB is volun
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planning authorities. In recent yea
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Environment List. The Planning and
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10.04 As previously noted by the Co
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(1) Prescribed Bodies under the Civ
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interview assessment or pass a writ
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certification. The fundamentals of
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Specify requirements for mediators
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a nationally based register of memb
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(6) Global Quality Mark: Internatio
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conclude the terms of an agreement.
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―The court has given its stamp of
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11 CHAPTER 11 ROLE OF COURT & ADR A
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emedy from the civil courts. 6 Lord
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simply adding to the total costs, d
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factors suggesting that mediation w
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explicitly allow for the possibilit
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11.33 In this respect, the Commissi
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jurisdiction to encourage mediation
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11.46 The Court of Appeal interpret
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11.53 Lightman J stated the critica
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(d) Whether the costs of mediation
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11.66 The Commission considers this
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costs of the action, or such part o
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greater proximity to the proceeding
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12.08 The Commission provisionally
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12.30 The Commission invites submis
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consider mediation or conciliation:
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