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

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sporting context save for anti-doping and employment issues.‖ 82 It also states that it supports and is founded on the principles of ―simplicity, accessibility and enforceability.‖ 83 7.76 A dispute may be referred either to arbitration or mediation by JSI provided one of the following three conditions is met: the rules of the sporting organisation involved in the dispute allow for recourse to JSI; the contract/agreement in dispute contains a clause referring disputes should they arise to JSI; or the parties to the dispute agree in writing to submit the dispute to JSI for arbitration/mediation. The parties need not be represented by legal advisers but may choose to do so. 7.77 Arbitral awards handed down by JSI are final, binding and enforceable in favour of and/or against the parties. The only instance in which an appeal against an arbitral award can be made is where the rules of a sporting organisation make provision for an appeal to the international Court of Arbitration for Sport. 84 D International Commercial Dispute Resolution in Ireland 7.78 In Keenan v Shield Insurance Co Ltd 85 McCarthy J, delivering a judgment, with the other members of the Supreme Court agreed, stated: "... the field of international arbitration is an ever expanding one. It ill becomes the courts to show any readiness to interfere in such a process; if policy considerations are appropriate, as I believe they are... then every such consideration points to the desirability of making an arbitration award final in every sense of the term." 7.79 In recent years, Ireland has co-ordinated its legislative, professional and service resources to put in place an environment for the conduct of international arbitration. 86 The Arbitration (International Commercial) Act 1998 82 These issues are dealt with by the Irish Sport Council‘s Anti-Doping Disciplinary Panel and the Employment Appeals Tribunal respectively. For more information on Just Sport Ireland see www.justsport.ie. 83 Ibid. 84 See 7.87, below. 85 [1988] IR 89. 86 See generally: O hOisin ―Ireland as a Venue for International Arbitration‖ (2003) 8 Bar Review 3; Byrne ―Ireland‘s Place in International Commercial Arbitration‖ (1998) 3 Bar Review 9 422; Byrne ―Arbitration (International Commercial) Act 254
has implemented the UNCITRAL Model Law on International Commercial Arbitration in full, with some additional measures designed to increase the autonomy of the arbitration process. The State is also a party to the New York Convention on the Enforcement of International Arbitration awards. A purposebuilt International Arbitration Centre has been opened in Dublin. The Centre offers facilities for hosting international arbitrations, including translation facilities and video-conferencing. 87 (1) International Centre for Dispute Resolution 7.80 The International Centre for Dispute Resolution (ICDR) is the international division of the American Arbitration Association (AAA), the world‘s largest provider of commercial conflict management and dispute resolution services. In 2001, ICDR opened its first European office in Dublin. Speaking at the opening of ICDR, the then Tánaiste stated: "The AAA chose Dublin as the site because of Ireland‘s vibrant economy because of the large and increasing number of international corporations currently conducting business here, because of our easy access to other European centres, and because Irish law has long supported the arbitration process." 88 7.81 ICDR is charged with the exclusive administration of all of the AAA's international matters. The ICDR's international system is premised on its ability to ensure that qualified arbitrators and mediators are appointed, control costs, understand cultural sensitivities, resolve procedural impasses, and properly interpret and apply its International Arbitration and Mediation Rules. 89 (2) International Chamber of Commerce 7.82 The International Chamber of Commerce is one of the world‘s leading organisations in the field of international commercial dispute resolution and is the world‘s leading international arbitration institution. 7.83 The ICC has an Irish National Arbitration Committee. The Committee is composed of representative of four constituent bodies: the Law Society of Ireland, the Bar Council of Ireland, the Chartered Institute of Arbitrators (Irish 1998‖ (1999) 17 Irish Law Times 262; Anglade ―Developing International Arbitration in Ireland‖ (1999) 5 Bar Review 3 143. 87 See www.dublinarbitration.ie. 88 ―Dublin Chosen for Major International Dispute Resolution Centre Tánaiste Mary Harney officially opens the new Centre‖ (2001) http://www.entemp.ie/press/2001/200601a.htm. 89 See http://www.adr.org/icdr. 255
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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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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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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
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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
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
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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
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
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Page 305 and 306: conciliators and adjudicators. This
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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
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Page 319 and 320: 9.19 A similar development has also
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Page 323 and 324: 9.34 Mediation at the PTRB is volun
Page 325 and 326: planning authorities. In recent yea
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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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