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

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limitations to the difficulties and problems it can realistically address and help resolve.‖ 195 5.176 The Commission considers that, where possible mediation (and other ADR processes such as collaborative lawyering) should form part of an overall suite of processes that aim to resolve what are complex human and legal problems in family law disputes. The Commission reiterates that this is not an ―either or‖ issue but a question of a suitable mix of approaches that are tailored to the particular circumstances of those involved in family disputes in the wide sense discussed in this Chapter. 195 Remarks by President McAleese at the opening of the second European Collaborative Law Conference, Cork, 2 May 2008. Available at www.president.ie 216
6 CHAPTER 6 MEDICAL ISSUES & ADR A Introduction 6.01 In this chapter the Commission examines how ADR could assist in the resolution of medical disputes. In Part B the Commission explores the potential of ADR in providing alternative non-monetary redress, including an apology, medical negligence claims. In Part C the Commission discusses the provision for mediation under the Medical Practitioners Act 2007. In Part D the Commission examines developments in England and Wales in relation to the promotion of ADR in medical negligence claims. In Part E the Commission discusses various schemes in the United States which have been implemented for the early and effective resolution of medical negligence claims. B Civil Claims: Medical Negligence 6.02 It has been estimated that up to 1,500 deaths are caused annually by medical errors in Ireland. 1 Medical negligence litigation has long been criticised ―… as complex, costly, and gruelling for all concerned, yet the number of medical negligence claims being brought in this country has risen sharply in recent years.‖ 2 6.03 Lord Woolf in his Final Report on Access to Justice, identified the following problems associated with medical negligence claims in England and Wales: (a) The disproportion between costs and damages in medical negligence is particularly excessive, especially in lower value cases. (b) The delay in resolving claims is more often unacceptable. (c) Unmeritorious cases are often pursued, and clear-cut claims defended, for too long. 1 See Clancy ―Risk Management in the Irish Health Service – where do we go from here?‖ (2003) 9 Medico-Legal Journal of Ireland 88. 2 Moloney ―Dealing with Medical Negligence Claims: a review of options for reform‖ (1999) 5 Medico-Legal Journal of Ireland 2 at 79. 217
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ALTERNATIVE DISPUTE RESOLUTION (LRC
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LAW REFORM COMMISSION‘S ROLE The
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LAW REFORM RESEARCH STAFF Director
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CONTACT DETAILS Further information
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TABLE OF CONTENTS INTRODUCTION 1 A
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D Self-Determination 112 (1) An Ove
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(2) Flexibility & Creativity of Med
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(2) Australia 312 (3) Civil Mediati
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Garda Síochána Act 2005 2005, No.
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Hall v Pertemps Group Ltd [2005] EW
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INTRODUCTION A Background to the pr
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thing as a free conflict resolution
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industrial relations disputes direc
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18. In Chapter 1, the Commission pr
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1 CHAPTER 1 ALTERNATIVE DISPUTE RES
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their every day lives, such as chil
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of the pyramid to the least common
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discuss non-financial remedies ensu
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Mediation or determination by an ex
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the time the process might take, th
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organisation advocated that commerc
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econciliation. 50 Family disputes a
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conclusion. 57 According to records
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1.52 Beginning in the late 1960‘s
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what later became known as the ―M
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civil case in which mediation canno
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(III) Directive on Certain Aspects
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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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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
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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
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Page 218 and 219: (d) reporting to the court (e) advi
Page 220 and 221: (i) Child Protection Mediation Prog
Page 222 and 223: 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 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
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Page 254 and 255: 6.40 This scheme has not been imple
Page 256 and 257: 7.03 Commercial disputes can lead t
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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
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Page 272 and 273: have attended courses on conciliati
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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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Page 287 and 288: or more commercial practices) who a
Page 289 and 290: 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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