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

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TABLE OF LEGISLATION Arbitration (International Commerical) Act 1998 1998, No. 14 Irl Arbitration Act 1954 1954, No. 26 Irl Arbitration Act 1980 1980, No. 7 Irl Central Bank and Financial Services Authority of Ireland Act 2004 xvii 2004, No. 21 Irl Child Family and Community Service Act 1996 1996, c.46 Can Children Act 1997 1997, No. 40 Irl Civil Liability and Courts Act 2004 2004, No. 31 Irl Civil Procedure Act 1997 1997, c.12 Eng Civil Procedure Act 2005 (NSW) 2005, No. 28 Aus Compensation Act 2006 2006, c.29 Eng Consumer Protection Act 2007 2007, No. 19 Irl Defence Act 1954 1954, No. 18 Irl Disability Act 2005 2005, No. 14 Irl Divorce Act 1985 1985, c.3 Can Education for Persons with Special Educational Needs Act 2004 2004, No. 30 Irl Employment Equality Act 1998 1998, No. 21 Irl Equal Status Act 2000 2000, No. 8 Irl Equality Act 2004 2004, No. 24 Irl Family Law (Divorce) Act 1996 1996, No. 33 Irl Family Law Act 1975 1975, No. 53 Aus Family Law Act 1996 1996, c.27 Eng Family Law Amendment (Shared Responsibility) Act 2006 2006, No. 46 Aus Family Law Reform Act 1995 1995, No. 167 Aus Family Proceedings Act 1980 1980, No. 94 NZ Family Support Agency Act 2001 2001, No. 54 Irl
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 and 10: CONTACT DETAILS Further information
Page 11 and 12: TABLE OF CONTENTS INTRODUCTION 1 A
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 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.‖
Page 54 and 55: 1.59 The Woolf Reports led to the e
Page 56 and 57: (ii) European Commission (I) Green
Page 58 and 59: combination of different mechanisms
Page 61 and 62: 2 CHAPTER 2 ADR PROCESSES & TERMINO
Page 63 and 64: C Definition of ADR 2.06 In general
Page 65 and 66: 2.14 This spectrum can also be grou
Page 67 and 68: 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
Page 83 and 84:
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
Page 89 and 90:
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
Page 97 and 98:
3 CHAPTER 3 GENERAL PRINCIPLES AND
Page 99 and 100:
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
Page 109 and 110:
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
Page 117 and 118:
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
Page 123 and 124:
administrative support from the cou
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3.96 The Commission provisionally r
Page 127 and 128:
dispute, since the courts will not
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(iii) To prove the existence of a c
Page 131 and 132:
3.119 In Chantrey Vellacott v Conve
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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
Page 162 and 163:
―There is no reason why employers
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industrial action where these have
Page 166 and 167:
With the objective help of the IRO
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Service became involved with the pa
Page 170 and 171:
small groups of employees and indiv
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expects that it should take no long
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D The Equality Tribunal 4.42 The Eq
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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)
Page 187 and 188:
5 CHAPTER 5 FAMILY DISPUTES & ADR A
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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
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family consultants) under the 1975
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eferral‖ after an application for
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Parenting - how will the children s
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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
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insist on the application of the or
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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
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programmes have been introduced in
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application for separation, divorce
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for cases not proceeding to mediati
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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
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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
Page 245 and 246:
(2) Flexibility & Creativity of Med
Page 247 and 248:
6.18 The statute defines ―benevol
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circumstances could one facilitate
Page 251 and 252:
the 12 mediated cases, the report s
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efore they can proceed to court. 55
Page 255 and 256:
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
Page 265 and 266:
―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
Page 277 and 278:
(c) Irish Commercial Mediation Asso
Page 279 and 280:
has implemented the UNCITRAL Model
Page 281:
(4) Court of Arbitration for Sport
Page 284 and 285:
processes such as mediation, to lit
Page 286 and 287:
C ADR Mechanisms for Resolving Dome
Page 288 and 289:
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
Page 296 and 297:
efund for the consumer, plus the ad
Page 298 and 299:
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
Page 308 and 309:
need to attend court. 97 Of all app
Page 310 and 311:
statutory Consumer Dispute Commissi
Page 312 and 313:
success rate of mediated outcomes.
Page 314 and 315:
9.04 The Irish Courts have repeated
Page 316 and 317:
financially and emotionally, can fa
Page 318 and 319:
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
Page 324 and 325:
9.37 Failure to comply with a deter
Page 326 and 327:
9.44 The Report referred to a pilot
Page 329 and 330:
10 CHAPTER 10 TRAINING AND ACCREDIT
Page 331 and 332:
There is concern that mediators wit
Page 333 and 334:
professional practice of mediation
Page 335 and 336:
(1) The Netherlands 10.18 In the Ne
Page 337 and 338:
a complaints system that either mee
Page 339 and 340:
(3) Civil Mediation Council of Engl
Page 341 and 342:
10.41 The Chartered Mediator design
Page 343 and 344:
will then build up IMI education, e
Page 345 and 346:
Ministry of Justice, which will the
Page 347:
essential foundation for a fully fu
Page 350 and 351:
11.04 As the Commission has previou
Page 352 and 353:
11.10 The general approach of the E
Page 354 and 355:
ecome infected with the conciliator
Page 356 and 357:
have a fundamental role in integrat
Page 358 and 359:
making a judgement, not about the d
Page 360 and 361:
mediation participants…. With an
Page 362 and 363:
Whilst the Court of Appeal did not
Page 364 and 365:
to follow the court‘s earlier sug
Page 366 and 367:
11.57 The importance of the Halsey
Page 368 and 369:
party that the successful party unr
Page 370 and 371:
invite submissions on this issue an
Page 372 and 373:
of the Rolls in England and Wales,
Page 375 and 376:
12 CHAPTER 12 SUMMARY OF PROVISIONA
Page 377 and 378:
12.18 The Commission provisionally
Page 379 and 380:
attempt mediation or conciliation i
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