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

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definitions of the terms. It must be assumed that those drafting the 2004 and 2005 Rules intended them to have different meanings. 4 2.04 The Commission considers that the development of clear and consistent definitions of the more commonly used ADR terms would serve several important functions. Four functions were highlighted by the Australian National Alternative Dispute Resolution Advisory Council of Australia: i) Common definitions or descriptions of ADR processes guarantee those who use, or make referrals to, ADR services receive consistent and accurate information, and have reasonable and accurate expectations about the processes they are undertaking. This will enhance their confidence in, and acceptance of, ADR services. ii) Consistent use of terms for ADR processes helps courts and other referring agencies to match dispute resolution processes to specific disputes. Better matching would improve outcomes from ADR processes. iii) A common understanding of ADR terms helps ADR service providers and practitioners to develop consistent and comparable standards. iv) Common terms provide a basis for policy and programme development, data collection and evaluation. 5 2.05 While consistent and clear terminology is necessary, it is important that this does not limit the creativity and innovation that have made ADR services so effective and popular. 6 Only a very limited number of key terms should be defined in statute, where consistency and compliance are essential. Where diversity and flexibility are important, may be more appropriate to have descriptive terms. 7 4 See Singer The EU Mediation Atlas (LexisNexis 2004) at 73. 5 Dispute Resolution Terms (National Alternative Dispute Resolution Advisory Council of Australia, September 2003). See also Tillett ―Terminology in Dispute Resolution: A Review of the Issues and Literature‖ (2004) 15 Australian Dispute Resolution Journal 180. 6 The Hon. Daryl Williams, Federal Attorney General VCAT Mediation Newsletter 7 Ibid. No. 6, November 2002. 38
C Definition of ADR 2.06 In general terms, the Commission understands ADR to represent a broad spectrum of structured processes which are fundamental to any modern civil justice system in providing greater access to individualised justice for all citizens. ADR should not been seen as a separate entity from the court-based arrangements for civil justice but rather should be seen as an integral part of the entire system. 2.07 The acronym ADR is as flexible as the processes it embodies. It has been described as ―A halfway house between the certainty of the adversarial system and the flexibility of negotiation.‖ 8 Emanating from the United States, the letters ADR evolved originally as an acronym for Alternative Dispute Resolution. Historically this referred to an alternative to the courts. This original view of ADR as an ―alternative‖ dispute resolution mechanism to litigation in the court system is no longer appropriate. Current practice of mediation internationally (and in Ireland in the Commercial Court) demonstrates that ADR and litigation ―are not homogenous, separate and opposed entities.‖ 9 2.08 A number of other ‗A‘ words have been developed which are aimed at identifying ADR as a dispute resolution concept in its own right and not as an alternative, but rather ‗additional‘ to some other procedures, including litigation. 10 ‗Amicable‘ dispute resolution‘ has been proposed to emphasis the non-adversarial objectives and processes of ADR, as has ‗accelerated‘ dispute resolution, which underlines one of the main advantages of many dispute resolution processes, in that disputes are often resolved more quickly than traditional litigation. As ADR has developed, importance has been placed on choosing techniques to match the needs of a dispute and the interests of the parties. Thus, ‗appropriate‘ dispute resolution is often encouraged as an alternative component of the ADR acronym. 2.09 Moving on from ‗ADR‘, BDR for ‗better dispute resolution‘, or IDR, for ‗innovative dispute resolution‘ have also been promoted in other jurisdictions such as Canada. In some jurisdictions ADR is now so popular that it is no longer an alternative form of dispute resolution but a primary form of dispute 8 Applebey ―What is Alternative Dispute Resolution?‖ (1991-1992) 15 Holdsworth Law Review 20 at 32. 9 Astor & Chinkin Dispute Resolution in Australia (2nd ed Butterworths, 2002) at 77. 10 Ibid. 39
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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
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 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 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
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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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5.135 An Association of Collaborati
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sets out certain fundamental provis
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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
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(3) Public Awareness Campaign 5.167
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limitations to the difficulties and
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(d) The success rate is lower than
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Case Study: Medical Complaint to Om
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apologies should not be used simply
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explanation without these being con
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step should be taken in the remitte
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appropriate way of resolving the pa
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6.40 This scheme has not been imple
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7.03 Commercial disputes can lead t
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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
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Superior Courts (Competition Procee
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Provide for the costs of any ADR pr
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increase toward the end of the peri
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large financial outlay and exposure
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have attended courses on conciliati
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judge very early in the proceedings
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membership includes practitioners i
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sporting context save for anti-dopi
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Branch), and Chambers Ireland. Its
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8 CHAPTER 8 CONSUMER DISPUTES & ADR
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court procedure…mechanisms of ADR
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or more commercial practices) who a
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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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