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

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MEMBERSHIP Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are: President: The Hon Mrs Justice Catherine McGuinness Former Judge of the Supreme Court Full-time Commissioner: Patricia T. Rickard-Clarke, Solicitor Part-time Commissioner: Professor Finbarr McAuley Part-time Commissioner: Marian Shanley, Solicitor Part-time Commissioner: Donal O‘Donnell, Senior Counsel iv
LAW REFORM RESEARCH STAFF Director of Research: Raymond Byrne BCL, LLM (NUI), Barrister-at-Law Legal Researchers: Áine Clancy BCL, LLM (NUI) Philip Flaherty BCL, LLM (NUI), Diop sa GH (NUI) Eleanor Leane LLB, LLM (NUI) Gemma Ní Chaoimh BCL, LLM (NUI) Verona Ní Dhrisceoil BCL (Dlí agus Gaeilge), LLM (NUI) Jane O‘Grady BCL, LLB (NUI ), LPC (College of Law) Charles O‘Mahony BA, LLB (NUI), LLM (Lond), LLM (NUI) Ciara Staunton BCL, LLM (NUI), Diop sa GH (NUI) STATUTE LAW RESTATEMENT Project Manager for Restatement: Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor Legal Researchers: John P. Byrne BCL, LLM (NUI), Barrister-at-Law Elizabeth Fitzgerald LLB, M.Sc. (Criminology & Criminal Justice), Barrister-at-Law LEGISLAT ION DIRECTORY Project Manager for Legislation Directory: Heather Mahon LLB (ling. Ger.), M.Litt., Barrister-at-Law Legal Researchers: Margaret Devaney LLB Eóin McManus BA, LLB (NUI), LLM (Lond) v
Page 1: ALTERNATIVE DISPUTE RESOLUTION (LRC
Page 5: LAW REFORM COMMISSION‘S ROLE The
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 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
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1.74 The Commission concurs with th
Page 62 and 63:
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
Page 196 and 197:
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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