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

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Garda Síochána Act 2005 2005, No. 20 Irl Guardianship of Infants Act 1964 1964, No. 7 Irl Health (Repayment Scheme) Act 2006 2006, No. 17 Irl Health and Social Care Professionals Act 2005 2005, No. 27 Irl Industrial Relations Act 1990 1990, No. 19 Irl Interstate Commercial Act 1887 US Judicial Separation and Family Law Reform Act 1989 1989, No. 6 Irl Medical Practitioners Act 2007 2007, No. 25 Irl National Economic and Social Development Office Act 2006 xviii 2006, No. 21 Irl National Minimum Wage Act 2000 2000, No. 5 Irl Newlands Act 1913 US Ombudsman (Defence Forces) Act 2004 2004, No. 36 Irl Ombudsman Act 1980 1980, No. 26 Irl Ombudsman for Children Act 2002 2002, No. 22 Irl Organisation of Working Time Act 1997 1997, No. 20 Irl Pensions (Amendment) Act 2002 2002, No. 18 Irl Pensions Act 1990 1990, No. 25 Irl Protection of Employees (Fixed-Term Work) Act 2003 2003, No. 29 Irl Protection of Employees (Part-Time Work) Act 2001 2001, No. 45 Irl Redundancy Payments Act 1967 1967, No. 21 Irl Residential Tenancies Act 2004 2004, No. 27 Irl Succession Act 1965 1965, No. 27 Irl Unfair Dismissals Act 1977 1977, No. 10 Irl
TABLE OF CASES Aiton Australia Pty Ltd v Transfield Pty Ltd Alan Wibberley Building Ltd v Insley (1999) 153 FLR 236 Aus [1998] 2 All ER 82 Eng Al-Khatib v Masry [2004] EWCA Civ 1353 Eng Barker v Johnson [1999] EWCA (Civ) Eng Brown v Rice & Patel [2007] EWHC 625 Eng Burchell v Marshall [1854] 58 U.S. 344 USA Burne v 'A' [2006] EWCA Civ 24 Eng Cable and Wireless plc v IBM plc Carleton Seventh Earl of Malmesbury v Strutt & Parker Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd Chantrey Vellacott v Convergence Group plc [2002] EWHC 2059 (Comm) Eng [2008] EWHC 424 Eng [1993] AC 334 Eng [2007] All ER 492 Eng Charlton v Kenny 2006, No. 4266P Irl Cook v Carroll [1945] IR 515 Irl Cowl v Plymouth City Council [2001] EWCA Civ 1935 Eng Cutts v Head [1984] Ch 290 Eng Devlin v The National Maternity Hospital [2007] IESC 50 Irl Dickinson v Brown [2001] NSWSC 714 Aus Dunnett v Railtrack plc [2002] 2 All ER 850 Eng Egan v Motor Services (Bath) Ltd [2007] EWCA Civ 1002 Eng Forster v Friedland [1992] CAT 1052 Eng Fyffes v DCC [2007] IESC 36 Irl Greencore Group plc v Murphy [1995] 3 IR 520 Irl xix
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 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
Page 62 and 63: definitions of the terms. It must b
Page 64 and 65: esolution. Within the family law ar
Page 66 and 67: esolution procedures to deal with g
Page 68 and 69: (2) Partnering 2.25 Partnering is a
Page 70 and 71:
Federation. If a settlement of a di
Page 72 and 73:
dispute. 36 In evaluative mediation
Page 74 and 75:
to negotiate an outcome that they c
Page 76 and 77:
without modification. This approach
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Ombudsman‘s to resolve complaints
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arising in the first place and thus
Page 82 and 83:
or less (SMEs), and unincorporated
Page 84 and 85:
(c) Office of the Pensions Ombudsma
Page 86 and 87:
(d) Ombudsman for Children 2.87 The
Page 88 and 89:
(f) Garda Síochána Ombudsman Comm
Page 90 and 91:
against a barrister or solicitor. A
Page 92 and 93:
2.112 Judicial ADR processes are we
Page 94 and 95:
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
Page 108 and 109:
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
Page 114 and 115:
Toronto. Under the OMMP, cases are
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(iii) New South Wales 3.66 The Civi
Page 118 and 119:
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
Page 124 and 125:
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
Page 134 and 135:
3.130 The Court noted that the poss
Page 136 and 137:
interest in fostering mediation. Ho
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choice of Mediator, content of proc
Page 140 and 141:
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
Page 146 and 147:
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
Page 154 and 155:
(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
Page 165 and 166:
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
Page 171 and 172:
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
Page 188 and 189:
5.03 The Commission also recommende
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a variation of an existing order fo
Page 192 and 193:
disputes arising by ensuring that p
Page 194 and 195:
the provisions of the plan became l
Page 196 and 197:
D Counselling 5.31 In its 1994 <str
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E Mediation (1) Family Mediation: A
Page 200 and 201:
Mediation offers the parties an opp
Page 202 and 203:
for guardianship to discuss the pos
Page 204 and 205:
order for parents and mediators to
Page 206 and 207:
mediators had ever consulted school
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mediators must uphold throughout th
Page 210 and 211:
5.76 There are approximately 150,00
Page 212 and 213:
5.82 At the pre-mediation informati
Page 214 and 215:
5.88 Custody mediation is an early
Page 216 and 217:
(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
Page 224 and 225:
(f) Hong Kong 5.124 Divorce is a gr
Page 226 and 227:
asis. 149 It was also recommended t
Page 228 and 229:
5.135 An Association of Collaborati
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sets out certain fundamental provis
Page 232 and 233:
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
Page 238 and 239:
(3) Public Awareness Campaign 5.167
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limitations to the difficulties and
Page 242 and 243:
(d) The success rate is lower than
Page 244 and 245:
Case Study: Medical Complaint to Om
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apologies should not be used simply
Page 248 and 249:
explanation without these being con
Page 250 and 251:
step should be taken in the remitte
Page 252 and 253:
appropriate way of resolving the pa
Page 254 and 255:
6.40 This scheme has not been imple
Page 256 and 257:
7.03 Commercial disputes can lead t
Page 258 and 259:
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
Page 264 and 265:
Superior Courts (Competition Procee
Page 266 and 267:
Provide for the costs of any ADR pr
Page 268 and 269:
increase toward the end of the peri
Page 270 and 271:
large financial outlay and exposure
Page 272 and 273:
have attended courses on conciliati
Page 274 and 275:
judge very early in the proceedings
Page 276 and 277:
membership includes practitioners i
Page 278 and 279:
sporting context save for anti-dopi
Page 280 and 281:
Branch), and Chambers Ireland. Its
Page 283 and 284:
8 CHAPTER 8 CONSUMER DISPUTES & ADR
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court procedure…mechanisms of ADR
Page 287 and 288:
or more commercial practices) who a
Page 289 and 290:
The Commission has already noted th
Page 291 and 292:
(c) Other Regulators 8.19 The Commi
Page 293 and 294:
members of their industry. Many suc
Page 295 and 296:
D Cross Border Consumer Disputes (1
Page 297 and 298:
with the Department to nominate sui
Page 299 and 300:
complaints, best practice and futur
Page 301 and 302:
that comply with the principles of
Page 303 and 304:
online mediation, and online arbitr
Page 305 and 306:
conciliators and adjudicators. This
Page 307 and 308:
cost is the €15 fee which is paya
Page 309 and 310:
usually settled at a meeting with t
Page 311 and 312:
8.68 When a decision is reached by
Page 313 and 314:
9 CHAPTER 9 PROPERTY DISPUTES & ADR
Page 315 and 316:
It has been noted that a formal leg
Page 317 and 318:
in 2006 seeking a declaration that
Page 319 and 320:
9.19 A similar development has also
Page 321 and 322:
opportunity to address any other un
Page 323 and 324:
9.34 Mediation at the PTRB is volun
Page 325 and 326:
planning authorities. In recent yea
Page 327:
Environment List. The Planning and
Page 330 and 331:
10.04 As previously noted by the Co
Page 332 and 333:
(1) Prescribed Bodies under the Civ
Page 334 and 335:
interview assessment or pass a writ
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certification. The fundamentals of
Page 338 and 339:
Specify requirements for mediators
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a nationally based register of memb
Page 342 and 343:
(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
Page 349 and 350:
11 CHAPTER 11 ROLE OF COURT & ADR A
Page 351 and 352:
emedy from the civil courts. 6 Lord
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simply adding to the total costs, d
Page 355 and 356:
factors suggesting that mediation w
Page 357 and 358:
explicitly allow for the possibilit
Page 359 and 360:
11.33 In this respect, the Commissi
Page 361 and 362:
jurisdiction to encourage mediation
Page 363 and 364:
11.46 The Court of Appeal interpret
Page 365 and 366:
11.53 Lightman J stated the critica
Page 367 and 368:
(d) Whether the costs of mediation
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11.66 The Commission considers this
Page 371 and 372:
costs of the action, or such part o
Page 373:
greater proximity to the proceeding
Page 376 and 377:
12.08 The Commission provisionally
Page 378 and 379:
12.30 The Commission invites submis
Page 380:
consider mediation or conciliation:
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