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

Commission notes in this respect the constitutional right of access to the courts
under Article 40.3 of the Constitution. 29 Thus, other forms of dispute resolution
are often seen to be conducted ‗in the shadow of the court‘. Furthermore, there
will be cases where fundamental rights, such as those enshrined in the
Constitution, will require judicial protection. Finally, courts can also be seen to
perform an important function in preserving peace and stability in society as a
whole.
1.27 While the courts will always retain a central place in the civil justice
system, it is increasingly recognised throughout the world that in many
instances there may be alternative and perhaps better ways of resolving civil
disputes. Other less formal means of dispute resolution may be quicker,
cheaper and better suited to the needs of the parties involved. ―Where there
exists an appropriate alternative dispute resolution mechanism which is capable
of resolving a dispute more economically and efficiently than court proceedings,
then the parties should be encouraged not to commence or pursue proceedings
in court until after they have made use of that mechanism." 30 Once it is
determined that the dispute is suitable for ADR, the next step is to consider the
goals of the parties involved.
(b) What are the goals of the parties?
1.28 One of the key questions to be asked when selecting a dispute
resolution process is what process can best satisfy the interests and goals of
the party to the dispute. 31 This outcome-oriented approach asks what should
happen as a result of the choice of the particular dispute resolution process. 32
1.29 The criteria which might influence the parties‘ choice of process could
include the following:
the need or desire for confidentiality or privacy,
whether a precedent is required,
where a reputation or good name is at risk,
the costs involved,
29 See Hogan and Whyte (eds) JM Kelly: The Irish Constitution (4 th ed Butterworths
2003).
30 Lord Woolf Access to Justice, Interim Report (1995) at Chapter 4.7. 2.
31 Sander & Rozdeiczer ―Matching Cases and Dispute Resolution Procedures:
Detailed Analysis Leading to a Mediation-Centered Approach‘‖ (2006) 11 Harv
Negot L Rev 1 at 2.
32 Ibid. at 10.
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