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

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Hall v Pertemps Group Ltd [2005] EWHC 3110 (Ch) Eng Haycocks v Neville [2007] EWCA (Civ) Eng Hurst v Leeming [2001] EWCA Ch 1051 Eng IDA Ltd v University of Southampton [2006] EWCA Civ. 145 Eng Instance v Denny Bros Printing [2001] EWCA Civ 939 Eng Keenan v Shield Insurance Co Ltd Lobster Group Ltd v Heidelberg Graphic Equipment Ltd [1988] IR 89 Irl [2008] EWHC 413 (TCC) Eng Morrow v Chinadotcom Corp [2001] NSWSC 209 Aus Munt v Beasley [2006] EWCA 370 Eng National Westminster Bank v Feeney [2006] EWHC 90066 Eng O'Connor v Lenihan 2001, No. 13001P Irl O'Neill v Ryanair (No 3) [1992] 1 IR 166 Irl Reed Executive plc v Reed Business Information Ltd [2004] EWCA Civ 159 Eng Remuneration Planning Corp Pty Ltd v Fitton [2001] NSWSC 598 Aus Royal Bank of Soctland v Secretary of State of Defence [2003] EWHC 1479 Ch Eng Ryan v Connolly [2001] 2 IRLM 174 Irl Scammell v Dicker [2005] EWCA 405 (Civ) Eng Scott v Avery (1856) 5 HLC 811 Aus Shirayama Shokusan v Danovo Ltd The Health Board v BC and the Labour Court Thompson v Commissioner of Police of the Metropolis Unilever plc v Proctor & Gamble Co [2003] EWHC Ch 3006 Eng [1994] ELR 27 Irl [1998] QB 498 Eng [2001] 1 All ER 783 Eng xx
Venture Investment Placement Ltd v Hall [2005] EWHC 1227 Eng Walker v Wilshire [1889] 23 QBD 335 Eng Waterhouse v Perkins [2001] NSWSC 13 Aus xxi
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 20 and 21: Garda Síochána Act 2005 2005, No.
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
Page 78 and 79:
Ombudsman‘s to resolve complaints
Page 80 and 81:
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
Page 96 and 97:
neutral and independent third party
Page 98 and 99:
B Voluntary Nature of ADR Processes
Page 100 and 101:
4. Access to court is denied, where
Page 102 and 103:
mediator's appointment, unless all
Page 104 and 105:
(4) Court-Annexed ADR Schemes 3.25
Page 106 and 107:
ased a considerable distance away f
Page 108 and 109:
Advice Bureaux and 5 were referred
Page 110 and 111:
including a simple self test in whi
Page 112 and 113:
3.54 The main objectives of the cou
Page 114 and 115:
Toronto. Under the OMMP, cases are
Page 116 and 117:
(iii) New South Wales 3.66 The Civi
Page 118 and 119:
actually mediated during the year.
Page 120 and 121:
mediate in order to avoid potential
Page 122 and 123:
that judgment was necessary; that l
Page 124 and 125:
mediation, that does not in itself
Page 126 and 127:
that the confidentiality of all par
Page 128 and 129:
held that communications made in a
Page 130 and 131:
and communications made during it.
Page 132 and 133:
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
Page 138 and 139:
choice of Mediator, content of proc
Page 140 and 141:
3.153 The Commission provisionally
Page 142 and 143:
29% said that costs had been increa
Page 144 and 145:
undertaken for improper strategic p
Page 146 and 147:
3.172 Estimates of time saved as a
Page 148 and 149:
an agreement by one party to do som
Page 150 and 151:
status of any agreed solution for r
Page 152 and 153:
unique position to evaluate the sit
Page 154 and 155:
(3) Self Determination 3.205 Return
Page 156 and 157:
settlement and the obligations flow
Page 159 and 160:
4 CHAPTER 4 EMPLOYMENT DISPUTES & I
Page 161 and 162:
elationship restored and enhanced.
Page 163 and 164:
disputes as well as stable, high qu
Page 165 and 166:
explore the possibilities for a set
Page 167 and 168:
potential clients. 35 In its Strate
Page 169 and 170:
are written in consultation with em
Page 171 and 172:
Case Example: Rights Commissioner S
Page 173 and 174:
Services Division. A group of 8 med
Page 175 and 176:
case for mediation to an equality m
Page 177 and 178:
outcomes of the 65 Employment Equal
Page 179 and 180:
Establish Joint Labour Committees a
Page 181 and 182:
investigated 100 cases which were s
Page 183 and 184:
more informal inquisitorial model t
Page 185:
• high performance/ high commitme
Page 188 and 189:
5.03 The Commission also recommende
Page 190 and 191:
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
Page 198 and 199:
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
Page 208 and 209:
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
Page 220 and 221:
(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
Page 230 and 231:
sets out certain fundamental provis
Page 232 and 233:
5.148 Collaborative law is now wide
Page 234 and 235:
on a collaborative basis and at a p
Page 236 and 237:
or to make any necessary orders. 18
Page 238 and 239:
(3) Public Awareness Campaign 5.167
Page 240 and 241:
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
Page 246 and 247:
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
Page 260 and 261:
efore any dispute arises. 19 Consis
Page 262 and 263:
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
Page 285 and 286:
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
Page 336 and 337:
certification. The fundamentals of
Page 338 and 339:
Specify requirements for mediators
Page 340 and 341:
a nationally based register of memb
Page 342 and 343:
(6) Global Quality Mark: Internatio
Page 344 and 345:
conclude the terms of an agreement.
Page 346 and 347:
―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
Page 353 and 354:
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
Page 369 and 370:
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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