cONSULTATION pAPER
ALTERNATIVE DISPUTE RESOLUTION
(LRC CP 50 - 2008)
© Copyright
Law Reform Commission
FIRST PUBLISHED
July 2008
ISSN 1393 – 3140
LAW REFORM COMMISSION’S ROLE
The Law
Reform Commission is an independent statutory body established by the Law
Reform Commission Act 1975. The Commission’s principal role is to keep the law under review and to
make proposals for reform, in particular by recommending the enactment of
legislation to clarify and modernize the law. Since it was established, the
Commission has published over 140 documents containing proposals for law reform
and these are all available at www.lawreform.ie. Most of these proposals have
led to reforming legislation.
The
Commission’s role is carried out primarily under a Programme of Law Reform. Its
Third Programme of Law Reform 2008-2014 was prepared by the Commission following broad
consultation and discussion. In accordance with the 1975 Act, it was approved
by the Government in December 2007 and placed before both Houses of the
Oireachtas. The Commission also works on specific matters referred to it by the
Attorney General under the 1975 Act. Since 2006, the Commission’s role includes
two other areas of activity, Statute Law Restatement and the Legislation
Directory.
Statute Law
Restatement involves the administrative consolidation of all amendments to an
Act into a single text, making legislation more accessible. Under the Statute
Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on
as evidence of the law in question. The Legislation Directory - previously
called the Chronological Tables of the Statutes - is a searchable annotated
guide to legislative changes. After the Commission took over responsibility for
this important resource, it decided to change the name to Legislation Directory
to indicate its function more clearly.
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
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)
Administration Staff
Head of Administration and Development:
John
Glennon
Higher Executive Officer:
Alan
Heade
Executive
Officers:
Simon
Fallon
Emma
Kenny
Darina
Moran
Peter
Trainor
Legal
Information Manager:
Conor
Kennedy BA, H Dip LIS
Cataloguer:
Eithne
Boland BA (Hons), HDip Ed, HDip LIS
Clerical Officers:
Ann Browne
Ann
Byrne
Liam
Dargan
Sabrina
Kelly
Principal legal researcher for this report
Nicola White LLB,
LLM (Dub) Attorney-at-Law (NY)
CONTACT DETAILS
Further
information can be obtained from:
Head of Administration and Development
Law Reform Commission
35-39 Shelbourne Road
Ballsbridge
Dublin 4
Telephone:
+353 1 637 7600
Fax:
+353 1 637 7601
Email:
info@lawreform.ie
Website:
www.lawreform.ie
ACKNOWLEDGEMENTS
The
Commission would like to thank the following people who provided valuable
assistance:
Mr Mark Appel, Senior Vice President, International
Centre for Dispute Resolution
Mr James Bridgeman, SC
Ms Claire Bruton, Barrister-at-Law
Dr Nael Bunni, Chartered Engineer, Bunni &
Associates
Mr Andrew Burr, Barrister, Atkins Chambers
Ms Rosaleen Byrne, Partner, McCann FitzGerald
Solicitors
Mr Oliver Connolly, Barrister-at-Law, Friary Law
Chambers
Ms Karen Erwin, President, Mediators Institute of
Ireland
Mr Ciaran Fahy, Vice Chair, Chartered Institute of
Arbitrators.
Ms Rachel Fehily, Barrister-at-Law
Mr Jonathan FitzGerald, Barrister-at-Law, Friary Law
Chambers
Mr Brian Hutchinson, Barrister-at-Law and Vice Dean
School of Law UCD
Mr Joseph Kelly, Partner, A & L Goodbody
Solicitors
Ms Mary Lloyd, Family Mediation Service
Mr John McBratney, SC
Judge Petria McDonnell, Judge of the Circuit Court
Mr
Patrick Meghen, County
Registrar, Limerick
Mr Colm O hOisin, SC and Chair Bar Council of Ireland
ADR Committee
Ms Polly Phillimore, Family Mediation Service
Ms Paulyn Marrinan Quinn, SC and Ombudsman for the
Defence Forces
Mr Nathan Reilly, Barrister-at-Law
However,
full responsibility for this publication lies with the Commission.
B The Commission’s approach
to alternative dispute resolution
(1) The role of the courts in encouraging
parties to
agree solutions
(2) Delays in the court process and the
development
of ADR
(3) The response to delays in the court
process and related services
(4) Efficiency, including cost efficiency
(5) Other benefits of ADR, including
flexibility
(6) An integrated approach to dispute
resolution
(7) Individual and collective dispute
resolution
(8) Collective disputes and regulatory
bodies,
including Ombudsmen
(9) The main focus of the Consultation
Paper
C Outline of Consultation
Paper Chapters
CHAPTER 1
Alternative Dispute Resolution in CONTEXT: ORIGINS & DEVELOPMENT OF
ADR
(2) Dispute Resolution & Civil Justice
(3) Appropriate Dispute Resolution
C The Development of ADR: An
Overview
(2) ADR in Traditional Societies
(3) Development of Civil & Commercial
ADR
CHAPTER 2
ADR processes & Terminology 37
B ADR Terminology: An
Overview
D Classification of the ADR
Spectrum
(2) Hybrid Models including combinations
of
mediation and arbitration: Med-Arb and
Arb-Med
CHAPTER 3
GENERAL PRINCIPLES and OBJECTIVES
of ADR
B Voluntary Nature of ADR
Processes
(2) Forms of Referral to Mediation or
Conciliation
(5) Voluntary Schemes v Compulsory Schemes
& the Impact of Costs Sanctions: England &
Wales
(1) Protection of Confidentiality: An
Overview
(2) Agreement Guaranteeing Confidentiality
(3) ‘Without Prejudice’ Communications
(4) Distinct Mediation Privilege
(1) An Overview of Self Determination
H Quality and Transparency
of Procedure
I European
Directive and Principles of Mediation 126
(1) Voluntary Nature of Mediation
(5) Neutrality & Impartiality of
Mediators
(7) Quality & Transparency of Process
(8) Enforceability of Mediated Agreements
CHAPTER 4
Employment Disputes & Industrial
Relations: The ROle of adr
B Employment Disputes: An
Overview
(2) Advisory Services Division
(3) Rights Commissioner Services
(4) Workplace Mediation Service
(1) Mediation at the Equality Tribunal: An
Overview
(2) Flexibility of Agreements Reached at
Mediation
(1) Main Functions of the Labour Court
G Other Developments in Ireland
(2) National Employment Rights Authority
CHAPTER 5
Family Disputes & ADR
(1) The Commission Report on Family Courts
1996
(2) 2007 Courts Service Report on Family
Law
Reporting Pilot Project
(3) Models in Other Jurisdictions
(1) Family Mediation: An Overview
(2) Legislative Development of Family
Mediation
in Ireland
(4) Issues in Family Mediation
(5) Mediation Schemes in Other
Jurisdictions
(3) Developments in Other Jurisdictions
G Case Conferencing in Family Law
Disputes
H Government Initiatives in
England and Wales
I Mediating
Family Probate Disputes
CHAPTER 6
Medical Issues & ADR
B Civil Claims: Medical
Negligence
(1) Role for ADR in Resolution of Medical
Negligence Disputes: Alternative Dispute
Remedies
(2) Flexibility & Creativity of
Mediation Agreements
in Medical Disputes
(1) Medical Practitioners Act 2007
D Developments in England &
Wales
(1) National Health Service (NHS)
(2) Pre-Action Protocol for the Resolution
of
Clinical Disputes
E Developments in the United
States
(1) Medical Mediation Panels: Wisconsin
(2) Pre-litigation Screening Panel: Maine
CHAPTER 7
Commerical Disputes & ADR
B Commercial Dispute
Resolution: An Overview
(1) ADR Clauses in Commercial Contracts
(3) ADR Clauses in Irish Government Public
Works Contracts
(4) Shareholder Disputes & ADR
(5) Commercial ADR Schemes &
Associations
D International Commercial Dispute
Resolution in
Ireland
(1) International Centre for Dispute
Resolution
(2) International Chamber of Commerce
(3) The Permanent Court of Arbitration
(4) Court of Arbitration for Sport
CHAPTER 8
consumer disputes & adr
B Consumer Disputes: An
Overview
C ADR Mechanisms for
Resolving Domestic
Consumer Disputes
(1) Direct Negotiation & Internal
Complaints
Handling
D Cross Border Consumer Disputes
(1) European Consumer Centre Dublin
(2) FIN-NET and the Financial Services
Ombudsman
(3) European Small Claims Procedure
E Online Dispute Resolution
of Consumer Disputes
(1) Electronic Consumer Dispute Resolution
G Redress Mechanisms in Other
Jurisdictions
(4) Queensland: Commercial & Consumer
Tribunal
CHAPTER 9
Property Disputes & ADR
(1) Nature of Boundary Disputes
(2) Appropriateness of ADR for Resolution
of
Boundary Disputes
(3) Role for Mediation in Neighbour
Disputes
(1) Private Residential Tenancies Board
(PRTB)
(2) Mediation and Adjudication at the PTRB
(3) Tenancy Tribunals of the PRTB
D Planning Application Disputes
& ADR
(1) Planning Applications & ADR: An
Overview
(2) Role for ADR in the Planning System:
International Experiences
CHAPTER 10
TRAINING AND ACCREDITATION OF
MEDIATORS
B Accreditation & Regulation
of Mediators: An
Overview
(1) Prescribed Bodies under the Civil
Liability
and Courts Act 2004
(2) Mediators Institute of Ireland
C Training &
Accreditation Systems in Other
Jurisdictions
(3) Civil Mediation Council of England
& Wales
(4) Family Mediation Council in England
and
Wales
(5) Canada: Chartered Mediators
(6) Global Quality Mark: International
Mediation
Institute
CHAPTER 11
Role of Court & adr
B Role of the Court in
Encouraging ADR
(1) Costs Sanctions: Good Faith
Requirement
& Genuine Effort to Compromise
(2) Costs Sanctions in England & Wales
-
“Unreasonable Refusal to Mediate”
D Mediator Reporting to the Court
CHAPTER 12
summary of PROViSIONAL
RECOMMENDATIONS
|
1998, No. 14 |
Irl |
|
|
Arbitration Act 1954 |
1954, No. 26 |
Irl |
|
Arbitration Act 1980 |
1980, No. 7 |
Irl |
|
Central Bank and Financial Services Authority of Ireland Act 2004 |
2004, No. 21 |
Irl |
|
Child Family and Community Service Act 1996 |
1996, c.46 |
Can |
|
Children Act 1997 |
1997, No. 40 |
Irl |
|
Civil Liability and Courts Act 2004 |
2004, No. 31 |
Irl |
|
Civil Procedure Act 1997 |
1997, c.12 |
Eng |
|
Civil Procedure Act 2005 (NSW) |
2005, No. 28 |
Aus |
|
Compensation Act 2006 |
2006, c.29 |
Eng |
|
Consumer Protection Act 2007 |
2007, No. 19 |
Irl |
|
Defence Act 1954 |
1954, No. 18 |
Irl |
|
Disability Act 2005 |
2005, No. 14 |
Irl |
|
Divorce Act 1985 |
1985, c.3 |
Can |
|
Education for Persons with Special Educational Needs Act 2004 |
2004, No. 30 |
Irl |
|
Employment Equality Act 1998 |
1998, No. 21 |
Irl |
|
Equal Status Act 2000 |
2000, No. 8 |
Irl |
|
Equality Act 2004 |
2004, No. 24 |
Irl |
|
Family Law (Divorce) Act 1996 |
1996, No. 33 |
Irl |
|
Family Law Act 1975 |
1975, No. 53 |
Aus |
|
Family Law Act 1996 |
1996, c.27 |
Eng |
|
Family Law Amendment (Shared Responsibility) Act 2006 |
2006, No. 46 |
Aus |
|
Family Law Reform Act 1995 |
1995, No. 167 |
Aus |
|
Family Proceedings Act 1980 |
1980, No. 94 |
NZ |
|
Family Support Agency Act 2001 |
2001, No. 54 |
Irl |
|
Garda Síochána Act 2005 |
2005, No. 20 |
Irl |
|
Guardianship of Infants Act 1964 |
1964, No. 7 |
Irl |
|
Health (Repayment Scheme) Act 2006 |
2006, No. 17 |
Irl |
|
Health and Social Care Professionals Act 2005 |
2005, No. 27 |
Irl |
|
Industrial Relations Act 1990 |
1990, No. 19 |
Irl |
|
Interstate Commercial Act 1887 |
|
US |
|
Judicial Separation and Family Law Reform Act 1989 |
1989, No. 6 |
Irl |
|
Medical Practitioners Act 2007 |
2007, No. 25 |
Irl |
|
National Economic and Social Development Office Act 2006 |
2006, No. 21 |
Irl |
|
National Minimum Wage Act 2000 |
2000, No. 5 |
Irl |
|
Newlands Act 1913 |
|
US |
|
Ombudsman (Defence Forces) Act 2004 |
2004, No. 36 |
Irl |
|
Ombudsman Act 1980 |
1980, No. 26 |
Irl |
|
Ombudsman for Children Act 2002 |
2002, No. 22 |
Irl |
|
Organisation of Working Time Act 1997 |
1997, No. 20 |
Irl |
|
Pensions (Amendment) Act 2002 |
2002, No. 18 |
Irl |
|
Pensions Act 1990 |
1990, No. 25 |
Irl |
|
Protection of Employees (Fixed-Term Work) Act 2003 |
2003, No. 29 |
Irl |
|
Protection of Employees (Part-Time Work) Act 2001 |
2001, No. 45 |
Irl |
|
Redundancy Payments Act 1967 |
1967, No. 21 |
Irl |
|
Residential Tenancies Act 2004 |
2004, No. 27 |
Irl |
|
Succession Act 1965 |
1965, No. 27 |
Irl |
|
Unfair Dismissals Act 1977 |
1977, No. 10 |
Irl |
TABLE OF CASES
|
(1999) 153 FLR 236 |
Aus |
|
|
Alan Wibberley Building Ltd v Insley |
Eng |
|
|
Al-Khatib v Masry |
Eng |
|
|
Barker v Johnson |
[1999] EWCA (Civ) |
Eng |
|
Brown v Rice & Patel |
Eng |
|
|
Burchell v Marshall |
[1854] 58 U.S. 344 |
USA |
|
Burne v 'A' |
Eng |
|
|
Cable and Wireless plc v IBM plc |
Eng |
|
|
Carleton Seventh Earl of Malmesbury v Strutt & Parker |
Eng |
|
|
Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd |
[1993] AC 334 |
Eng |
|
Chantrey Vellacott v Convergence Group plc |
[2007] All ER 492 |
Eng |
|
Charlton v Kenny |
2006, No. 4266P |
Irl |
|
Cook v Carroll |
[1945] IR 515 |
Irl |
|
Cowl v Plymouth City Council |
Eng |
|
|
Cutts v Head |
Eng |
|
|
Devlin v The National Maternity Hospital |
Irl |
|
|
Dickinson v Brown |
[2001] NSWSC 714 |
Aus |
|
Dunnett v Railtrack plc |
Eng |
|
|
Egan v Motor Services (Bath) Ltd |
Eng |
|
|
Forster v Friedland |
[1992] CAT 1052 |
Eng |
|
Fyffes v DCC |
Irl |
|
|
Greencore Group plc v Murphy |
[1995] 3 IR 520 |
Irl |
|
Hall v Pertemps Group Ltd |
[2005] EWHC 3110 (Ch) |
Eng |
|
Haycocks v Neville |
[2007] EWCA (Civ) |
Eng |
|
Hurst v Leeming |
[2001] EWCA Ch 1051 |
Eng |
|
IDA Ltd v University of Southampton |
Eng |
|
|
Instance v Denny Bros Printing |
Eng |
|
|
Keenan v Shield Insurance Co Ltd |
[1988] IR 89 |
Irl |
|
Lobster Group Ltd v Heidelberg Graphic Equipment Ltd |
Eng |
|
|
Morrow v Chinadotcom Corp |
[2001] NSWSC 209 |
Aus |
|
Munt v Beasley |
[2006] EWCA 370 |
Eng |
|
National Westminster Bank v Feeney |
Eng |
|
|
O'Connor v Lenihan |
2001, No. 13001P |
Irl |
|
O'Neill v Ryanair (No 3) |
[1992] 1 IR 166 |
Irl |
|
Reed Executive plc v Reed Business Information Ltd |
Eng |
|
|
Remuneration Planning Corp Pty Ltd v Fitton |
[2001] NSWSC 598 |
Aus |
|
Royal Bank of Soctland v Secretary of State of Defence |
[2003] EWHC 1479 Ch |
Eng |
|
Ryan v Connolly |
[2001] 2 IRLM 174 |
Irl |
|
Scammell v Dicker |
[2005] EWCA 405 (Civ) |
Eng |
|
Scott v Avery |
(1856) 5 HLC 811 |
Aus |
|
Shirayama Shokusan v Danovo Ltd |
[2003] EWHC Ch 3006 |
Eng |
|
The Health Board v BC and the Labour Court |
[1994] ELR 27 |
Irl |
|
Thompson v Commissioner of Police of the Metropolis |
Eng |
|
|
Unilever plc v Proctor & Gamble Co |
Eng |
|
|
Venture Investment Placement Ltd v Hall |
[2005] EWHC 1227 |
Eng |
|
Walker v Wilshire |
[1889] 23 QBD 335 |
Eng |
|
Waterhouse v Perkins |
[2001] NSWSC 13 |
Aus |
A
Background to the project
1.
This Consultation Paper forms part of the Commission’s Third
Programme of Law Reform 2008-2014,[1] under which
the Commission is committed to examining, and exploring reform options for, the
main processes of alternative dispute resolution (ADR)[2]
and associated key principles. As the Consultation Paper indicates, the
main ADR processes are mediation and conciliation. A number of new
processes have also emerged in specific areas, such as collaborative lawyering
in the family law setting. Because this is a fast moving and emerging
area, in respect of which there is no clear framework of relevant principles,
the Consultation Paper also places significant emphasis on exploring the key
principles of ADR, including its voluntary nature, the need for
confidentiality, its efficiency and the transparency and quality of the
process.
B
The
Commission’s approach to alternative dispute resolution
2.
In preparing this Consultation Paper, the Commission’s approach is based
on the key objective that civil disputes are resolved in a way that meets the
needs of the parties and conforms to fundamental principles of justice.
This objective involves several related issues, which the Commission sets out
here in order to describe its overall approach to ADR.
(1)
The role of the courts in encouraging parties to agree solutions
3.
It is clear that, from one perspective, the word “alternative” refers to
looking outside the courtroom setting to resolve some disputes. In this
respect, the Commission fully supports the long-standing approach of the legal
profession and of the courts that, where it is appropriate, parties involved in
civil disputes should be encouraged to explore whether their dispute can be resolved
by agreement, whether directly or with the help of a third party mediator or
conciliator, rather than by proceeding to a formal “winner v loser” decision by
a court. This happens every day in the courts, in family litigation, in
large and small commercial claims and in boundary and other property disputes
between neighbours. In that respect there are strong reasons to support
and encourage parties to reach a solution through agreement, especially in
disputes where emotional issues combine with legal issues, provided that this
alternative process meets fundamental principles of justice.
(2)
Delays in the court process and the development of ADR
4.
In addition to the recognition by the legal profession and the courts that
some disputes would be better resolved by agreement rather than court decision,
the emergence in Ireland (and internationally) of alternative dispute
resolution processes has also been associated with real problems of delays in
the court system. An undoubted advantage of mediation and conciliation is
the ability to get speedy access to a process that may produce a satisfactory
outcome for the parties in a short space of time. The Commission accepts
that any long delays in the court process involve clear barriers to justice:
justice delayed is, indeed, justice denied. While some ADR processes may have
emerged in response to delays in the court process, the Commission also
considers it is important to note that the court process has not stood still or
ignored the problem of delay.
(3)
The
response to delays in the court process and related services
5.
The court process in Ireland has responded to the problem of delay - and
the connected development of ADR processes - with important initiatives. For
example, the Commercial Court list in the High Court, which was established in
2004 to deal with large commercial disputes,[3]
uses active judicial case management to improve the efficiency of the
litigation process itself and also encourages the use of mediation and
conciliation. Similarly, the Smalls Claims Court in the District Court is a
mediation process for certain consumer disputes (which can be filed on-line and
is available for a small handling fee), under which the first step is to seek
informal resolution of the dispute using a document-only approach.[4]
In a wider setting, the Family Mediation Service, which forms part of the
statutory Family Support Agency,[5] provides an
important alternative resolution facility in the context of family conflicts.
(4)
Efficiency,
including cost efficiency
6.
The research presented in this Consultation Paper on the efficiency of
ADR processes (some based on Irish experience) indicates that mediation and
conciliation processes often provide a speedy resolution to a specific
dispute. That research also indicates that there is – to put it simply –
no such thing as a free conflict resolution process, alternative or
otherwise. Where the resolution process is provided through, for example,
the courts or the Family Mediation Service, most or all of the financial cost
is carried by the State. Where the resolution process involves private
mediation, the cost is often shared by the parties involved. The
Commission accepts, of course, that the additional financial costs involved in
an individual case that goes through an unsuccessful mediation and must then be
resolved in litigation has to be balanced against the possible savings where a
complex case is successfully mediated. The Commission nonetheless
considers it is important not to regard ADR as a patently cheaper alternative
to litigation costs; in some instances, it may be, but where a mediation is not
successful it obviously involves additional expense. On the whole,
careful and appropriate use of ADR processes is likely to reduce the overall
financial costs of resolving disputes.
7.
In addition, the other aspect of efficiency – timeliness – may be of
great value to the parties. The Commission is also conscious of other
values associated with ADR processes, including party autonomy and respect for
confidentiality, which are discussed in detail in the Consultation Paper.
The point of noting the narrow issue of financial cost is primarily to indicate
that the research referred to in this Consultation Paper strongly supports the
view that ADR assists timely resolution of disputes, but is less clear that
direct financial costs savings may arise for the parties.[6]
(5)
Other
benefits of ADR, including flexibility
8.
The Commission appreciates that ADR processes also bring additional benefits
that are not available through the litigation process. ADR processes may,
for example, lead to a meeting between parties where an apology is offered.[7]
They can also facilitate an aggrieved party to participate in the creation of
new arrangements or procedures to prevent a recurrence of the incident in
dispute. This underlines a key element of ADR, that it has the potential
to enhance the empowerment of those involved in its processes. A memorial
to victims of a perceived wrong can also emerge from a mediated
agreement. The flexibility offered by ADR processes is an important
aspect of a civil justice system in its widest sense.
(6)
An
integrated approach to dispute resolution
9.
In making these general points, the Commission wishes to make clear that
the word “alternative” in “alternative dispute resolution” should not be seen
as preventing the court process from continuing to play a positive role in
resolving disputes by agreement. This can be through the long-established
practice of intervening at a critical moment in litigation to suggest
resolution by agreement or though the structured innovations of, for example,
the Commercial Court or the Small Claims Court. In that respect, as the
detailed discussion in the Consultation Paper points out, while mediation and
conciliation should be clearly delineated as quite different from litigation as
such, they can also be appropriately linked to litigation. The Commission
agrees that an integrated civil justice process should include a combination of
ADR processes, such as mediation and conciliation, and the court-based
litigation process. Each process plays its appropriate role in meeting
the needs of the parties involved and fundamental principles of justice.
(7)
Individual and collective dispute resolution
10.
The discussion of dispute resolution in the preceding paragraphs largely
envisages individual disputes, such as a boundary dispute between neighbours or
a family law dispute. In preparing this Consultation Paper, and in
particular in determining the scope of the analysis, the Commission was acutely
aware that disputes do not always involve two parties only. The Commission
had previously examined multi-party litigation, such as the Army deafness
claims of the 1990s,[8] and was
therefore conscious that legal processes, such as litigation, must resolve
collective disputes as well as individual disputes. The Commission
discusses in the Consultation Paper the successful resolution through mediation
of the English Group Litigation concerning organ retention by Alder Hey
Hospital, Liverpool.[9]
11.
In this respect, the Consultation Paper includes a discussion and
analysis of the many different forms in which dispute resolution takes place in
a collective setting as well as the individual setting. For example, the
long-established mediation and conciliation services of the Labour Relations
Commission and the Labour Court[10] almost
invariably involve the resolution of industrial relations disputes directly
affecting a collective group of employees and, sometimes indirectly, the
general public.
(8)
Collective
disputes and regulatory bodies, including Ombudsmen
12.
Quite often, the distinction between individual and collective disputes
is blurred and the solutions found are not ordinarily described as alternative
dispute resolution. For example, the Commission has recently completed an
analysis of multi-unit apartment complexes and made proposals for reform.[11]
In apartment complexes, the individual disputes between unit owners, developers
and property managing agents over, for example, the level of property
management fees could, at one level, be dealt with through litigation or
mediation. Because of the scale and diversity of the problems, other solutions
may also be required. In this, respect, the National Consumer Agency,
which is primarily a regulatory body, played a type of dispute resolution role
by facilitating discussion between relevant representative bodies through a
Consumers Forum on Apartment Complexes. This Forum produced template forms of
contracts to be used by unit owners and property managing agents that have the
potential to prevent future disputes in this area.[12]
13.
The intervention of the National Consumer Agency in this way is
comparable to how an Ombudsman can exercise his or her powers to ensure
appropriate resolution of disputes. It has often happened that an
Ombudsman may receive a series of individual complaints about a particular
problem and that these complaints are investigated collectively in order to
prevent future recurrences.[13]
14.
The Commission notes that, similarly, a professional body with
regulatory or disciplinary functions, such as the Medical Council,[14]
may be required to oversee the individual conduct of its profession against
certain criteria in order to prevent poor practices that could, in turn, lead
to disputes with clients. The regulatory body may also be required, in
some instances, to engage in ADR processes concerning poor professional
conduct.[15]
(9)
The
main focus of the Consultation Paper
15.
The Commission notes, therefore, that ADR, in the sense just discussed,
can be said to encompass a very wide area of law and legal processes. In
this respect, the Commission considered that, to provide as full an analysis as
possible of ADR, it was necessary to provide an overview of the application of
ADR in these different settings. In some places, the Consultation Paper
provides a general overview of ADR processes in a specific setting by way of
describing their long-standing use – this is the case in the discussion of
employment disputes and ADR.[16] In
that area of its use, the Commission does not make any specific suggestions for
reform, for the simple reason that those engaged in using ADR in that setting –
notably the Labour Relations Commission – are fully conscious of the need to
develop and refine their ADR processes. Similarly, while the Commission refers
in the Consultation Paper to the use of arbitration as an alternative to
litigation, it is clear that the future development of this long-established
area of dispute resolution will be debated in the Oireachtas in the immediate
future[17] and that it
would therefore be inappropriate to make reform proposals on arbitration in the
Consultation Paper.
16.
The Commission’s main focus in the Consultation Paper can, therefore, be
divided into three areas in respect of which it makes provisional
recommendations and, where relevant, invites views and submissions on
ADR. First, the Commission examines the terminology associated with ADR,
in particular the need for a consistent definition of mediation and
conciliation, and the underlying general principles concerning ADR
processes. The purpose of this is to seek to achieve consistency in the
use of terminology surrounding ADR and the key underlying principles. The
second area of focus is on the application of ADR in specific areas, including
family law disputes, commercial disputes and property disputes. The purpose
here is to address more specific matters in these settings which the Commission
considers may be in need of further clarification or development. The
third area concerns the training and regulation of ADR professionals. The
Commission regards this as a vital aspect of ensuring the quality of justice
likely to be achieved through ADR.
C
Outline
of Consultation Paper Chapters
17.
Having described its general approach to alternative dispute resolution,
the Commission turns to provide a brief outline of each Chapter in the
Consultation Paper.
18.
In Chapter 1, the Commission presents a general overview of ADR. The
Commission examines the literature on the nature of disputes and discusses the
appropriateness of ADR in resolving disputes. The Commission provisionally
recommends that the key principles underlying ADR, in particular mediation and
conciliation, should be set out in statutory form.
19.
In Chapter 2, the Commission examines ADR processes and terminology.
The Commission provides an overview of the ADR spectrum which is made up
by a body of ADR processes, including preventive (such as partnering),
facilitative (mediation), advisory (conciliation) and determinative (expert
determination). The Commission explains why it is necessary to ensure
that the more commonly used ADR terms, in particular mediation and
conciliation, are clearly defined.
20.
In Chapter 3, the Commission examines several of the main objectives and
principles of ADR in particular in connection with mediation and conciliation.
These include: the voluntary nature of ADR, the principle of confidentiality,
principles of self-determination and party empowerment, the objective of
ensuring efficiency, flexibility, neutrality and impartiality of the mediator
or facilitator and quality of process to consumers. The Commission also
summarises the objectives and principles in the 2008 EC Directive on Certain
Aspects of Mediation in Civil and Commercial Matters.
21.
In Chapter 4, the Commission outlines the use of ADR in the employment
law setting, notably through the Labour Relations Commission and the Labour
Court. As already noted, the Commission does not make any recommendations
in this area, and the discussion is for the purposes of indicating the
suitability of ADR in a specific context.
22.
In Chapter 5, the Commission examines the role of ADR in resolving
family law disputes, which the Commission previously addressed in its 1996 Report
on Family Courts (LRC 52 – 1996). This includes a discussion of the
need for information meetings for separating or divorcing couples. The
Commission also discusses the recent emergence of collaborative lawyering in
the family law setting. The Commission also discusses the appropriateness of
mediation for resolving family probate disputes.
23.
In Chapter 6, the Commission examines how ADR could assist in the
resolution of medical disputes. Among the matters explored is the potential of
ADR in providing alternative non-monetary redress, including an apology, in
medical negligence claims.
24.
In Chapter 7, the Commission discusses ADR in the context of commercial
disputes. The Commission examines in particular the role of the Commercial
Court in encouraging the use of mediation and explores whether the innovations
it has developed could be applied to a wider commercial setting.
25.
In Chapter 8, the Commission examines the development of ADR in
resolving consumer disputes. The Commission examines, for example, whether the
Small Claims Court procedure could be expanded to resolve more consumer
disputes.
26.
In Chapter 9, the Commission explores the potential role for ADR in the
resolution of specific types of property disputes, in particular between
neighbours. The Commission considers whether ADR has any role to play in
the resolution of planning application disputes.
27.
In Chapter 10, the Commission addresses the accreditation and regulation
of mediators and the various non-statutory and statutory schemes for assuring
the quality of mediators.
28.
In Chapter 11, the Commission examines the role of the Court in the
development of ADR. The Commission explores the issue of costs sanctions and
mediation and the precise manner in which mediators report back to the Courts.
The Commission also considers whether mediation costs should be recoverable as
legal costs.
29.
Chapter 12 contains the provisional recommendations made by the
Commission in the Consultation Paper.
30.
This Consultation Paper
is intended to form the basis of discussion and therefore all the
recommendations made are provisional in nature. The Commission will make its
final recommendations on ADR following further consideration of the issues and
consultation with interested parties. Submissions on the provisional
recommendations included in this Consultation Paper are welcome. To enable the
Commission to proceed with the preparation of its Final Report, those who wish
to do so are requested to make their submissions in writing by post to the
Commission or by email to info@lawreform.ie by 31 October 2008.
1
CHAPTER 1
Alternative
Dispute Resolution in CONTEXT: ORIGINS & DEVELOPMENT OF ADR
A
Introduction
1.01
In this chapter the
Commission presents an overview of alternative dispute resolution (ADR). In
Part B the Commission examines the nature of disputes and discusses the appropriateness
of ADR in resolving disputes. In Part C the Commission summarises the
development of ADR.
B
Resolution
of Disputes
(1)
The
Nature of Disputes
1.02
The majority of people in Ireland are likely to become involved in a
civil dispute at least once during their lifetime. Disputes are an inevitable
element of human interaction and society needs to develop efficient and
innovative methods of dealing with them.
1.03
A dispute is a product of unresolved conflict. Conflict can simply be
viewed as “the result of the differences which make individuals unique and the
different expectations individuals bring to life.”[18] While conflict is inevitable, disputes need not be. Miller
and Sarat note that:
“Disputes are not discrete events like births or deaths; they
are more like such constructs as illnesses and friendships, composed in part of
the perceptions and understandings of those who participate in and observe
them. Disputes are drawn from a vast sea of events, encounters, collisions,
rivalries, disappointments, discomforts, and injuries. The span and
composition of that sea depend on the broad contours of social life …The
disputes that arrive at courts can be seen as the survivors of a long and
exhausting process.”[19]
(i)
Development of a Dispute
1.04
Disputes often begin as grievances. “A grievance is an individual’s
belief that he or she is entitled to a resource which someone else may grant or
deny.”[20] For example,
if a consumer purchases a product which they believe is defective, they may
respond to such a belief in various ways. They may, for example, choose to
‘lump it’ and not return to the shop to complain so as to avoid potential
conflict. They may redefine the problem and redirect blame elsewhere, for
example to a family member for damaging the product. They may register a claim
to communicate their sense of entitlement to the most proximate source of
redress, in this instance, the shop assistant, the party perceived to be
responsible.[21]
1.05
For something to be called a dispute, it must have moved past the
solitary awareness of one person, the consumer, to a joint recognition with at
least one more person, such as the shop assistant. Both parties need not agree
on the nature of the dispute, its origin, or its substance, but they must agree
that there is a dispute. If only one person sees a problem, it is not yet a
dispute.[22] If one party
accepts the entitlement of the other, that the consumer should be refunded,
there is no dispute. It is only when there is partial or total rejection of the
other party’s claim, for example, if the shop assistant rejects the belief that
product was defective when it was purchased, that a dispute is born.[23]
1.06
It is important to distinguish disputes from differences. A dispute may
be viewed as “a class or kind of conflict which manifests itself in distinct
justiciable issues.”[24] A
“justiciable problem” is defined as “a matter experienced by a respondent which
raised legal issues, whether or not it was recognised by the respondent as
being ‘legal’ and whether or not any action taken by the respondent to deal
with it involved the use of any part of the civil justice system.”[25]
Justiciable problems are, for the most part, those that people face in their
every day lives, such as child support, consumer, education, employment,
health, and welfare benefits.
(ii)
The Dispute Iceberg
1.07
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The dynamics of a dispute are often compared to an iceberg.[26]
The iceberg model below serves to illustrate that only a fraction of the issues
in a dispute are immediately accessible.[27]
The submerged part of the iceberg represents the personal interests of the
party, the fundamental underlying factors contributing to any given conflict,
which do not always surface during formal rights-based processes such as
litigation or arbitration.[28]
1.08
Interest-based dispute resolution processes expand the discussion beyond
the parties’ legal rights to look at these underlying interests; they address
parties’ emotions, and seek creative solutions to the resolution of the
dispute. The focus of these processes is on clarifying the parties’ real
motivations or underlying interests in the dispute with the aim of reaching a
mutually acceptable compromise which meets the interests of both parties.
1.09
Preventive, facilitative and advisory dispute resolution processes
explore below the surface of the iceberg and can be described as interest-based
resolutions. Determinative processes such as arbitration can be described as
rights-based processes which focus on the positions and issues of the parties illustrated
at the tip of the iceberg. These processes tend to narrow issues, streamline
legal arguments, and predict judicial outcomes or render decisions based on
assessments of fact and law.[29]
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Moving From a Distressed to an
Effective Dispute Resolution System.[30]
1.10
A simple example can
illustrate the idea of the dispute iceberg. Two neighbours are in
dispute over a tree. Each neighbour takes the position that the tree is on
their land. This represents the tip of the iceberg and the main issue. No
compromise is possible, since the tree cannot be sawn in half. It turns out,
however, that the interest of one neighbour is in using the fruit of the tree
and the interest of the other is in having the shade. Without exploring the
underlying expectations and interests of the parties, no compromise would be
possible. Characteristic of almost every conflict is that the party standpoint
or the claim (the self-chosen solution to the conflict) is not considered
acceptable by the other. However, one or more interests are often behind each
standpoint and, once they have become known, can form the key to a possibly
effective solution.[31]
(2)
Dispute
Resolution & Civil Justice
1.11
The process of resolving a dispute has also been represented in the
shape of a pyramid, which moves from the most common response at the base of
the pyramid to the least common response at its apex. As the pyramid[32]
below illustrates the most common response to disputes that arise is for a
disputant to take no action at all. Reasons for this may include that the issue
is small (‘more trouble than its worth’) or that the disputant does not feel
empowered to pursue a course of action. In a larger number of matters
disputants will attempt informal negotiation. Indeed, many disputes are heard
by school principals and shop keepers – i.e. in the forum that are part of the
social setting within which the dispute arose. Such forums process a tremendous
number of disputes.[33] Fewer still disputants will seek legal
advice. This may be because of the cost and time involved in consulting with a
solicitor. ADR processes occupy the second tier of the pyramid. Court
based-litigation occupies the apex. In other words, ADR processes, and to an
even greater extent, the courts will resolve a small percentage of disputes and
probably the more complex ones with more significant financial, personal or
social consequences.
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1.12
In promoting access to justice, a modern civil justice system should
offer a variety of approaches and options to dispute resolution. Citizens
should be empowered to find a satisfactory solution to their problem which
includes the option of a court-based litigation but as part of a wider ‘menu of
choices’.
1.13
As one commentator noted:
“We are living in a time of social and legal evolution and it
appears as if a single civil adversary court style process will not be adequate
to satisfy all of the desiderata of a good justice system. With specialisation
in some areas…and varying claimant preferences in others… it certainly appears
that a modern civil justice system ought to permit some menu of choices for
particular kinds of processes.”[34]
1.14
The concept of such a ‘menu of choices’ emphasises the importance of
taking into account the preferences of those in dispute and increasing avenues
to access to justice. It also reflects the American concept of ‘fitting the
forum to the fuss.’[35] This
involves allocating civil justice problems to the most appropriate process,
depending on what the parties involved wish to achieve.
1.15
In this respect, “access to justice” encompasses access to a range of
processes.[36] Justice may
sometimes require a decision from a High Court judge who has heard and
considered evidence and legal arguments from both sides after an adversarial
hearing. In another case, justice might mean an apology and change of
administrative process in response to a particular problem. It is clear that in
that sense there are circumstances in which ADR can provide resolutions which a
court cannot.[37]
Case Study: Alder Hey Children’s Hospital
An example from England is the
huge controversy and individual grievances of over 1,000 people, which arose
from the discovery that Alder Hey Children’s Hospital in Liverpool had, over a
period of decades, retained organs of children who had died there. This had
occurring without obtaining any consent to retention from the parents. From a
legal perspective, each non-consensual retention involved a justiciable
assault. To deal with the mass nature of the claims (over 1,000), the claimants
were organised as a group litigation. This claim had the potential to take up
enormous court time. In addition, however, the emotional element of the claim
was, arguably, not suitable for litigation. The claimants and defendants agreed
to mediation through the Centre for Effective Dispute Resolution (CEDR). The
settlement included financial compensation but it was accepted that the ability
to discuss non-financial remedies ensured a successful conclusion. The families
involved produced a ‘wish list’ and this resulted in the provision of a memorial
plaque at the hospital, letters of apology, a press conference and contribution
to a charity of the claimants’ choice. These remedies were essential to the
successful conclusion of the case and the need of the participants to achieve
what they felt to be a just resolution.
1.16
The Alder Hey example provides another reason
why ADR can be suitable in some cases. Mass litigation involving over 1,000
claimants is likely to take a long time to resolve and the Court should be free
to deal with claims that will not overburden its available resources.[38]
(3)
Appropriate
Dispute Resolution
1.17
There is increasing recognition that while many disputes can be
resolved, there is no single formula to decide which resolution process is
suitable for or appropriate to a conflict situation. “There are many variations
in relation to disputes: the range of subject matters is very wide; within any
category, a multitude of issues can arise; various factors can influence
parties who disagree; and there are some conflicts which are not readily
amenable to dispute resolution processes.”[39]
Therefore, one of the more challenging aspects of alternative dispute resolution
is to determine which process is most appropriate for a particular
dispute.
1.18
The potential for dealing constructively with conflicts often depends on
the type of conflict and its stage of development. Glasl has identified nine
stages of conflict development.[40]
1.19
Using this analysis and depending on which level the dispute is at, a
specific process is appropriate for its resolution. The earlier a dispute
resolution mechanism is introduced in a dispute, the more effective it is
likely to be in resolving that dispute. The longer a dispute continues, the
more parties tend to become entrenched in their positions. In addition, both
the financial and emotional costs continue to escalate while party control over
the outcome decreases.
.gif)
1.20
When deciding which dispute resolution process to use, there are two key
questions which must also be addressed.
(a)
Is the dispute suitable for ADR?
1.21
The Commission’s clear view is that not all cases are suitable for
resolution by ADR, just as the court based adversarial process is not suitable
for all cases. The decision to use ADR should be made on the basis of a range
of factors including how best to serve the specific interests of the parties
and to ensure that justice is accessible, efficient, and effective.
1.22
In 1999, the Lord Chancellor’s Department in its Alternative Dispute
Resolution - A Discussion Paper[41] set out a number of situations in which certain forms of
ADR could be considered appropriate for the resolution of a dispute. These
included:
·
Mediation or conciliation may be helpful where parties wish to preserve
an existing relationship;
·
Parties involved in a sensitive family or commercial dispute may prefer
to use a form of ADR to keep sensitive information private;
·
Arbitration may be suitable in cases where there is no relationship to
preserve, and a rapid decision is needed;
·
Trade association arbitration schemes, regulators and ombudsmen may
provide a cheaper alternative for an individual seeking redress against a
company or large organisation, but they may be limited in the redress they can
provide;
·
Early neutral evaluation might be applicable in cases where there is a
dispute over a point of law, or where one party appears to have an unrealistic
view of their chances of success at trial;
·
Mediation or determination by an expert might be best where there is a
technical dispute with a great deal of factual evidence;
·
Mediation
has achieved settlement in many apparently intractable multi-party cases;
and
·
Any form of ADR will be worth considering where the cost of court
proceedings is likely to equal or exceed the amount of money at issue.[42]
1.23
However, ADR is not a panacea
for all disputes, it has its limitations and it is not always appropriate. In some cases power imbalances may
exist which put the parties on an unequal footing, allowing one party to place
undue pressure on the other. The result may be that one party may impose
their solution on the other side. This could arise from the relative economic positions of the parties or
from the nature of the personal or business relationship between them.[43] In such cases ADR may not be
appropriate.
1.24
It has also been suggested that “cases based on allegations of
fraudulent conduct or illegal behaviour are not conducive to mediation because
the polarised positions that characterise these disputes inhibit discussion.
Moreover, they often place the mediator in an impossible ethical position.”[44]
1.25
In other cases there
may be uncertainties in the law which is important to clarify, either because
there is a lot at stake in a particular case, or because its outcome could
affect a number of other cases.[45] Sometimes
legal precedents need to be relied on, or to be established for future cases.
There are cases in which public interest dictates that a public hearing should
take place and a public decision be made.
1.26
It is important to note, therefore, that the courts will always remain
central and indispensible to our civil justice system for a number of reasons.
Firstly, while the courts should be viewed as the ultimate port of call to
resolve a dispute, they must always be available should other ADR processes
fail. The Commission notes in this respect the constitutional right of
access to the courts under Article 40.3 of the Constitution.[46]
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."[47]
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.[48] This
outcome-oriented approach asks what should happen as a result of the choice of
the particular dispute resolution process.[49]
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,
·
the time the process might take,
·
the importance of preserving relationships,
·
the desire for non-legal solutions,
·
the desire for an opinion or evaluation by a third party,
·
the desire to have their ‘day in court’,
·
the complexity of the issue,
·
the need for a final and binding determination, and
·
the number of parties involved.[50]
1.30
To take a hypothetical case where Mary is going through a separation
with John.[51] She brings
her problem to her solicitor and asks for advice on how to proceed. Her choice
of procedure will partly depend on the goals that she wants to achieve. Does
she want to preserve a good relationship with John? Does she want John to
participate in raising their children or, on the contrary, does she want to
prevent him from seeing them? How important is it for her to maximise her
monetary income from the separation? Does she want to come to a flexible
agreement with John in relation to maintenance and the family home that meets
both their needs? Does she want to resolve matters as quickly as possible?
1.31
Without knowing what Mary really wants, it is impossible to make an
informed decision about the preferable process. If Mary wishes to preserve and
even enhance her relationship with John, mediation or collaborative lawyering
may be the best options. On the other end of the spectrum, litigation often
threatens to destroy relationships. However, a future amicable relationship
with John may not be what Mary wants. On the contrary, she may prefer her
children to have as little contact as possible with John. In such a case, she
should probably go to court and request it to grant very limited visitation
rights to John. Depending on the goals of a party to a dispute, the most
appropriate dispute resolution process can be determined. [52]
1.32
The role of the legal profession should not be overlooked in relation to
assessing the appropriateness of ADR. Many disputants may not be aware of the
full spectrum of dispute resolution processes which are available to them and,
when assessing a client case, solicitors should also assess whether ADR is
appropriate. As noted by the Former US Chief Justice Warren Burger:
“The obligation of the legal profession is to serve as the
healers of human conflicts. To fulfil this traditional obligation of our
profession means that we should provide the mechanisms that can produce an
acceptable result in the shortest possible time with the least possible expense
and with a minimum of stress on the participants. That is what a system of
justice is all about.”[53]
C
The
Development of ADR: An Overview
1.33
The concept of ADR is not a new phenomenon. For centuries, societies
have been developing informal and non-adversarial processes for resolving
disputes. In fact, archaeologists have discovered evidence of the use of ADR
processes in the ancient civilizations of Egypt, Mesopotamia, and Assyria.[54]
Furthermore, it can be argued that many of the modern methods of ADR are not
modern alternatives, but merely a return to earlier ways of dealing with such
disputes in traditional societies. The court system itself was once an
alternative dispute resolution process, in the sense that it superseded older
forms of dispute resolution, including trial by battle and trial by ordeal.
This section will look at some of the more relevant periods in the development
of ADR.
(1)
ADR
in Classical Times
1.34
One of the earliest recorded mediations occurred more than 4,000 years
ago in the ancient society of Mesopotamia when a Sumerian ruler helped avert a
war and developed an agreement in a dispute over land.[55]
Further evidence reveals that the process of conciliation among disputants was
very important in Mesopotamian society.[56] During the
First Century BC a merchant organisation advocated that commercial disputes be
resolved outside of the court process through a confrontation between the
creditor and debtor in the presence of a third party referee. The role of the
referee was to help facilitate conciliation. In this way, the referee would
suggest alternative settlements, if the options put forward by the parties
themselves were rejected. If the dispute was not resolved according to this
manner, the dispute could be brought before the court.
1.35
The development of ADR in the Western World can be traced to the ancient
Greeks. As Athenian courts became overcrowded, the city-state introduced the
position of a public arbitrator around 400 B.C.[57]
The arbitral procedures were structured and formal. The arbitrator for a given
case was selected by lottery. His first duty was to attempt to resolve the
matter amicably. If he did not succeed, he would call witnesses and
require the submission of evidence in writing. This can be described as the
modern day process of med-arb.[58] The parties
often engaged in elaborate schemes to postpone rulings or challenge the
arbitrator’s decision. An appeal would be brought before the College of
Arbitrators, who would refer the matter to the traditional courts.[59]
1.36
The Classical Greek epic poem The Iliad, contains several
examples of mediation and arbitration in Greek culture. One such example
concerns the negotiation of an agreement between a murderer and the victim’s
family. Traditional law required that the accused make an offer to the victim’s
family which was laid out in public view for all to assess. Some negotiation
regarding the offer occurred. However, the final assessment of the offer was
made by a respected elder whose decision would be accepted by all.[60]
This example incorporates the modern processes of restorative justice and
arbitration.
(2)
ADR
in Traditional Societies
1.37
Arbitration was an important feature of Irish Brehon Law. A 'brithem'[61]
who had trained in a law-school but had not been appointed by the king as the
official judge for the area earned his living by arbitrating disputes between
parties who had agreed to be bound by the decision.[62]
They simply judged the amount of fines due from those guilty, and left it to
extended families, patrons or chiefs to enforce payment. If a brithem left a
case undecided he would have to pay a fine of 8 ounces of silver. Founded in
the maxim 'to every judge his error', he would have to pay a fine for an
erroneous judgment.[63]
1.38
There are many other examples of ADR processes which have developed in
traditional societies as mechanisms for resolving disputes. The Bushmen of
Kalahari, a traditional people in Namibia and Botswana, have sophisticated
systems of resolving disputes that avoid physical conflict and the
courts.
“When a serious problem comes up everyone sits down – all the
men, all the women – and they talk, and they talk and they talk. Each
person has a chance to have his or her say. It may take two or three
days. This open and inclusive process continues until the dispute is
literally talked out.”[64]
This process incorporates negotiation, mediation, and consensus
building and bears some resemblance to the parliamentary filibuster.
1.39
Hawaiian islanders of Polynesian ancestry use a form of mediation called
‘ho’oponopono’ for resolving disputes. This process involves a family coming
together to discuss interpersonal problems under the guidance of a respected
leader.[65]
Similarly, the Abkhazian people of the Caucasus Mountains of Georgia have long
practised mediation by elders to resolve disputes within their group and among
tribes in surrounding areas.[66]
1.40
In Nigeria, the Yoruba live in modern cities but continue to revert to
traditional methods of resolving disputes. Courts are seen as the last resort
as it is generally considered a mark of shame on the disputants when a matter
ends up in the courts. They are viewed as ‘bad people’ who should favour
reconciliation.[67] Family
disputes are generally brought before the ‘baale’, who is an elderly head of
the district. After both disputants state their case, the elders ask questions
and then try to work towards a compromise in which both sides accept some of
the blame. The elders have a variety of techniques for reaching an agreement:
subtle blackmail, precedent, proverbs, and even magic. “The only real power
behind the elders’ decisions is cultural: they can threaten social
excommunication or use emotional blackmail.”[68]
1.41
India also has a long tradition of using ADR processes. The most popular
method of dispute resolution, ‘panchayat’, began 2,500 years ago and is widely
used for resolution of both commercial and non-commercial disputes.
1.42
Similarly, since the Western Zhou Dynasty in China 2,000 years ago the
post of mediator has been included in all governmental administration.
Today in China it is estimated that there are 950,000 mediation committees with
6 million mediators. Article 111 of the Constitution of the People's Republic
of China states "People's Mediation Committees (PMC) are a working
committee under grassroots autonomous organizations - Residents Committee,
Villagers Committee - whose mission is to mediate civil disputes." Today, these
Committees handle between 10 and 20 million cases per year, ranging from family
disputes to minor property disputes. Chinese citizens are not forced to use the
PMCs and can bypass them for the courts. But since the committees are tasked
with settling matters in no longer than a month, PMCs can be an efficient way
to administer justice. Judgments also can also be appealed to the courts.[69]
1.43
It is well-documented that mediation has a long and varied history in
all the major cultures of the world. Both the Koran and the Bible[70]
provide references to the resolution of disputes through arbitration or
mediation.
(3)
Development
of Civil & Commercial ADR
(a)
Ireland
1.44
The first Arbitration Act was the “Act for Determining Differences by
Arbitration, 1698”.[71]
The 1698 Act provided, inter alia, that “It shall and may be lawful for all merchants
and traders and others desiring to end any controversy, suit or quarrel ... by
a personal action or suit in equity, by arbitration whereby they oblige
themselves to submit to the award or umpirage of any person or persons ... so
agreed." One of Ireland's first recorded arbitral institutions was the
Ouzel Galley Society. Its name derived from an Irish merchant ship. In
the autumn of 1695 the Ouzel Galley sailed out of Ringsend in Dublin under the
command of Capt Eoghan Massey of Waterford. Her destination, it was supposed at
the time, was the great Ottoman port of Smyrna in what is now Turkey where the
vessel's owners - the Dublin shipping company of Ferris, Twigg & Cash -
intended her to engage in a trading mission before returning to Dublin the following
year. The Ouzel, however, did not return as scheduled; nor was she seen the
year after that. When a third year passed without any sign of her or her crew,
it was generally assumed by the people of Dublin that she had been lost at sea.[72]
1.45
In 1698 a panel comprising the city's most distinguished merchants was
established to settle the question of insurance. The panel's ruling was that
the ship had been lost and that its owners and insurers should receive their
due compensation. The galley's complement of 37 crew and 3 officers were
declared dead and the insurance was paid out.[73]
1.46
Two years later, however, in the autumn of 1700, the Ouzel made her
unexpected reappearance, sailing up the River Liffey. The ownership of the
Ouzel's cargo became a matter of dispute. Litigation commenced later that year
but was arduously slow. Eventually in 1705 the merchants of Dublin decided to
form an arbitration court to hear the dispute and the panel of merchants which
had arbitrated in the case in 1698 was formally established as a permanent
arbitration body to deal with similar shipping disputes that might arise. In
contrast with the court proceedings the arbitration reached a relatively speedy
conclusion.[74] According to
records, "It was resolved that the entire of the pirates' booty would form
a fund for the alleviation of poverty among the merchants of Dublin.” [75]
The Ouzel Galley Arbitration led to the formation of the Ouzel Galley
Society.
1.47
The Ouzel Galley Society thrived until the 1820's. Between 1799 and 1869
for instance it is known to have made 318 awards - the majority of these being
made before 1824. The members were generally drawn from among the city's most
eminent politicians and businessmen - among them Arthur Guinness and John
Jameson. For much of the 18th Century the society met in public
houses. In 1783 the society was partially subsumed by the newly formed Dublin
Chamber of Commerce. From that year on it declined, in parallel to the decline
in the city's fortunes, and it was eventually wound up in 1888.[76]
1.48
Further developments in the field of arbitration in Ireland include the
enactment of the Arbitration Act 1954 (as
amended by the Arbitration Act 1980)
which continues to govern domestic arbitrations and the Arbitration
(International Commercial) Act 1998 which governs international arbitrations. The 1998 Act
adopts the UNCITRAL Model Law on International Commercial Arbitration with a
few minor amendments. In 1998, the Bar Council opened the Dublin International
Arbitration Centre.[77] In May 2001,
the International Centre for Dispute Resolution, a separate division of the
American Arbitration Association, the world’s largest provider of commercial
conflict management and dispute resolution services, opened its European headquarters
in Dublin.[78]
1.49
Provision for mediation has been made in a number of recent Acts and
statutory instruments, including:
·
Judicial Separation and Family Law Reform Act 1989;
·
Family Law (Divorce) Act 1996;
·
Employment Equality Act 1998;
·
Family Support Agency Act 2001;
·
Civil Liability and Courts Act 2004;
·
Residential Tenancies Act 2004;
·
Rules of the Superior Courts (Commercial Proceedings) 2004;
·
Rules of the Superior Courts (Competition Proceedings) 2005; and
·
Medical Practitioners Act 2007.
(b)
United States
1.50
In the United States, Chambers of Commerce created arbitral tribunals in
New York in 1768, in New Haven in 1794, and in Philadelphia in 1801. These
early panels were used primarily to settle disputes in the clothing, printing,
and merchant seaman industries. Arbitration received the full endorsement of
the Supreme Court in 1854, when the court specifically upheld the right of an
arbitrator to issue binding judgments in Burchell v Marshall.[79] Writing for
the court, Grier J stated that “Arbitrators are judges chosen by the parties to
decide the matters submitted to them, finally and without appeal. As a
mode of settling disputes, it should receive every encouragement from courts of
equity.”[80]
1.51
The federal government has promoted commercial arbitration since as
early as 1887, when it passed the Interstate Commercial Act 1887. The Act set up a mechanism
for the voluntary submission of labour disputes to arbitration by the railroad
companies and their employees. In 1898, Congress followed initiatives that
began a few years earlier in Massachusetts and New York and authorised
mediation for collective bargaining disputes. The Newlands Act 1913 and later legislation
reflected the belief that stable industrial peace could be achieved through the
settlement of collective bargaining disputes; settlement in turn could be
advanced through conciliation, mediation, and voluntary arbitration. Special
mediation agencies, such as the Board of Mediation and Conciliation for Railway
Labor 1913[81] and
the Federal Mediation and Conciliation Service 1947 were formed and funded to
carry out the mediation of collective bargaining disputes.
1.52
Beginning in the late 1960’s, American society witnessed the start of a
significant movement in ADR, in a climate of criticism of the adversarial
nature of litigation, and, perhaps, loss of faith in traditional adjudication
and the competence and professionalism of lawyers.[82]
It is, however, the Pound Conference held in 1976, which is recognised as being
the birthplace of the modern ADR movement.
1.53
The Pound Conference full title was the ‘National Conference on the
Causes of Popular Dissatisfaction with the Administration of Justice.’ The
Pound Conference picked up on the dissatisfaction with the adversarial system.[83]
According to Subrin,
“There was an unmistakeable tone at the Conference that the
underlying ideology of liberality of pleading, wide-open discovery and attorney
latitude was no longer feasible. The alleged litigation explosion would have to
be controlled; the few bad lawyers could not be trusted to control themselves.”[84]
1.54
Professor Frank Sander’s speech entitled ‘Varieties of Dispute
Processing’, urged American lawyers and judges to re-imagine the civil courts
as a collection of dispute resolution procedures tailored to fit the variety of
disputes that parties bring to the justice system.[85]
The goal, Sander argued, should be to ‘let the forum fit the fuss’. Sander criticised
lawyers for tending “to assume that the courts are the natural and
obvious dispute resolvers, when, in point of fact there is a rich variety of
different processes…that may provide far more effective conflict resolution.”[86]
He advocated “a flexible and diverse panoply of dispute resolution processes,
with particular types of cases being assigned to different processes.”[87]
Sander then outlined the spectrum of disputing methods he regarded as apt,
these included;
·
adjudication,
·
arbitration,
·
problem-solving efforts by a government ombudsman,
·
mediation or conciliation,
·
negotiation,
·
avoidance of the dispute.[88]
1.55
He stated that we should “reserve the courts for those activities for
which they are best suited and to avoid swamping and paralysing them with cases
that do not require their unique capabilities.”[89]
He envisioned that “not simply a court house, but a Dispute Resolution Center,
where the grievant would first be channelled through a screening clerk who
would then direct him to the process (or sequence of processes) most
appropriate to his type of case.”[90] The room
directory in the lobby of such a Center might look as follows:
|
Screening Clerk |
Room 1 |
|
Mediation |
Room 2 |
|
Arbitration |
Room 3 |
|
Fact Finding |
Room 4 |
|
Malpractice Screening Panel |
Room 5 |
|
Superior Court |
Room 6 |
|
Ombudsman |
Room 7 |
1.56
A screening unit at the centre would “diagnose” disputes, then using
specific referral criteria, refer the disputants to the appropriate dispute
resolution process, the “door”, for handling the dispute.[91]
Sander’s idea was a catalyst for what later became known as the “Multi-Door
Courthouse”. Multi-door courthouses were established, initially on a pilot
basis, in Tulsa (Oklahoma); Houston (Texas); and in the Superior Court of the
District of Columbia. From these experiments, the idea spread to many courts
throughout the world.[92] “In a
relatively short amount of time, the use of ADR processes in American courts
has increased to the extent that this once unusual process is now commonplace
…and hailed as the most important tool available to the courts.”[93]
(c)
England & Wales
1.57
Sander’s concerns for the future of the civil justice system were echoed
in the Woolf Reports on the civil justice system of the 1990’s when the system
in England and Wales was viewed as
“… too expensive in that the costs often exceed the
value of the claim; too slow in bringing cases to a conclusion and too unequal:
there is a lack of equality between the powerful, wealthy litigant and the
under resourced litigant. It is too uncertain: the difficulty of forecasting
what litigation will cost and how long it will last induces the fear of the
unknown; and it is incomprehensible to many litigants.”[94]
1.58
The then Lord Chancellor appointed Lord Woolf in 1994 to review the
rules of civil procedure with a view to improving access to justice and
reducing the cost and time of litigation. The aims of the review were “to
improve access to justice and reduce the cost of litigation; to reduce the
complexity of the rules and modernise terminology; to remove unnecessary
distinctions of practice and procedure.”[95]
Perceived problems within the existing civil justice system, summed up by Lord
Woolf in his review in England and Wales as “the key problems facing civil
justice today...cost, delay and complexity.”[96]
1.59
The Woolf Reports led to the enactment of the UK Civil Procedure Act
1997 and the Civil Procedure Rules 1998 (CPR). The
new CPR Rules apply both to proceedings in the High Court and the County Court.
The stated objective of the procedural code is to enable the court to deal with
cases justly.[97] Dealing with
a case justly includes, so far as practicable:
·
Ensuring that the parties are on an equal footing;
·
Saving expense;
·
Dealing with the case in ways which are proportionate;
·
Ensuring that the case is dealt with expeditiously and fairly; and
·
Allotting it to an appropriate share of the court’s resources.[98]
1.60
The CPR vests in the court the responsibility of active case management
by encouraging the parties to co-operate and to use ADR.[99]
Under the CPR a court may either at the request of the parties or of its own
initiative stay proceedings while the parties try to settle the case by ADR or
other means.
1.61
Since the introduction of the CPR, ADR has significantly developed in
England and Wales and the judiciary has also strongly encouraged the use of
ADR. The judgments of the Court of Appeal in Cowl v Plymouth City
Council[100]
and Dunnett v Railtrack plc[101] both
indicated that unreasonable failure to use ADR may be subject to cost
sanctions.[102] Indeed,
the CPR have also introduced the possibility for cost sanctions if a party does
not comply with the court’s directions regarding ADR.[103]
1.62
The English judge, Lightman J who is a strong supporter of incorporating
mediation into the justice system, summarised the main developments in relation
to ADR since the introduction of the CPR Rules as follows:
(1) The abandonment of the notion that mediation is
appropriate in only a limited category of cases. It is now recognised that
there is no civil case in which mediation cannot have a part to play in
resolving some (if not all of) the issues involved;
(2) Practitioners generally no longer perceive mediation as a
threat to their livelihoods, but rather a satisfying and fulfilling livelihood
of its own;
(3) Practitioners recognise that a failure on their part
without the express and informed instructions of their clients to make an
effort to resolve disputes by mediation exposes them to the risk of a claim in
negligence;
(4) The Government itself adopts a policy of willingness to
proceed to mediation in disputes to which it is a party;[104]
(5) Judges at all stages in legal proceedings are urging
parties to proceed to mediation if a practical method of achieving a settlement
and imposing sanctions when there is an unreasonable refusal to give mediation
a chance; and
(6) Mediation is now a respectable legal study and research
at institutes of learning.[105]
(d)
European Developments
(i)
Council of Europe
1.63
In 1998 the Committee of Ministers of the Council of Europe adopted a
Recommendation on Family Mediation in Europe.[106]
This Recommendation focused on the use of mediation in resolving family
disputes. It sets out principles on the organisation of mediation services, the
status of mediated agreements, the relationships between mediation and
proceedings before the courts and other competent authorities, the promotion
of, and access to mediation and, the use of mediation in international matters.
In addition, it calls for the government of all Member States to introduce or
promote family mediation and to take or reinforce measures necessary for this
purpose, and to promote family mediation as an appropriate means of resolving
family disputes.
(ii)
European Commission
(I)
Green Paper on Alternative Dispute Resolutions in
Civil and Commercial Law 2002 [107]
1.64
As a follow-up to the conclusions of the 1999 Tampere European Council,
the Council of Justice and Home Affairs asked the European Commission to
present a Green Paper on alternative dispute resolution in civil and commercial
law other than arbitration. Priority was to be given to examining the
possibility of laying down basic principles, either in general or in specific
areas, which would provide the necessary guarantees to ensure that out-of-court
settlements offer the same guarantee of certainty as court settlements.
1.65
In 2002 the European Commission published a Green Paper on Alternative
Dispute Resolutions in Civil and Commercial Law. It deals with the promotion on
an EU wide basis of ADR as an alternative to litigation primarily due to the
ever increasing number of international disputes but also with the aim of
promoting a framework to ensure that disputes can be dealt with in an efficient
and cost effective manner.
1.66
The questions in the Green Paper related to the essence of the various
means of alternative dispute resolution such as clauses in contracts,
limitation periods, confidentiality, the validity of consent given, the
effectiveness of agreements generated by the process, the training of third
parties, their accreditation and the rules governing their liability.
(II)
European Code of Conduct for Mediators 2004
1.67
In 2004, a European Code of Conduct for Mediators was developed by a
group of stakeholders with the assistance of the European Commission.[108] It sets
out a number of principles to which individual mediators can voluntarily decide
to commit. It is intended to be applicable to mediation in civil and commercial
matters. Organisations providing mediation services can also make such a
commitment, by asking mediators acting under the auspices of their organisation
to respect this code. Adherence to the code is without prejudice to national
legislation or rules regulating individual professions.[109]
(III)
Directive on Certain Aspects of Mediation in Civil and
Commercial Matters 2008
1.68
In 2008 a European Directive on Certain Aspects of Mediation in Civil
and Commercial Matters was agreed. The purpose of the Directive is to
facilitate access to dispute resolution and to promote the amicable settlement
of disputes by encouraging the use of mediation and by ensuring a sound
relationship between mediation and judicial proceedings. The Directive must be
implemented by 2011.[110]
1.69
The Directive applies to processes where two or more parties to a
cross-border dispute of a civil or commercial nature attempt by themselves, on
a voluntary basis, to reach an amicable settlement to their dispute with the
assistance of a mediator. The Directive only applies to cross-border disputes,
although it does not prevent Member States from applying the provisions of the
Directive to internal mediation processes. Given the broad definition of
“cross-border disputes”, the Directive's provisions on confidentiality and on
limitation and prescription periods also apply in situations which are purely
internal at the time of mediation but become international at the judicial
proceedings stage, for example, if one party moves abroad after mediation
fails.
(IV)
Organisation for Economic Co-operation and Development
(OECD)
1.70
The Organisation for
Economic Co-operation and Development (OECD) Recommendation on
Consumer Dispute Resolution and Redress which was adopted by the OECD
Council in July 2007 sets out principles for an effective and comprehensive
dispute resolution and redress system that would be applicable to domestic and
cross-border disputes.[111] Member
countries, including Ireland, are required to review their existing dispute
resolution and redress frameworks to ensure that they provide consumers with
access to fair, easy to use, timely, and effective dispute resolution and
redress without unnecessary cost or burden. In so doing, the Recommendation
states that Member countries should ensure that their domestic frameworks
provide for a combination of different mechanisms for dispute resolution and
redress in order to respond to the varying nature and characteristics of
consumer complaints.
D
Conclusion
1.71
ADR facilitates early
settlement of disputes. Early settlement can be both financially and
emotionally advantageous to the disputant. It may also mean that an important
relationship can be repaired and maintained, something which may be at risk in
adversarial litigation. While it is true that lawyers often engage in
negotiation and settlement, sometimes on the steps of the court, a successful
negotiation often depends on the strength of the legal rights-based arguments,
which can only be fully developed following expensive and time-consuming
processes such as discovery. This legalistic approach often overlooks other
avenues of settlement opportunity, which may better address a client’s
underlying interests and needs.[112]
1.72
Alternative dispute
resolution must be seen as an integral part of any modern civil justice system.
“It must become such a well established part of it that when considering
the proper management of litigation it forms as intrinsic and as instinctive a
part of our lexicon and of our thought processes, as standard considerations
like what, if any, expert evidence is required.”[113]
1.73
The Commission
considers that citizens should be given a variety of options to resolve their
disputes in a way which best needs their interests and goals. While litigation
must always remain available for clients, this can be a very stressful
undertaking and should be seen as the final place for resolving a dispute.[114] The Commission concurs with the view that, “we should want much
more than an effective court system. We should want an integrated civil justice
system wherein the courts are a forum of last resort, supported by other,
closely related techniques for ensuring the law is open to all.”[115]
1.74
The Commission concurs with the view that ADR provides a suitable
means of resolving disputes in appropriate circumstances and provisionally
recommends that the key principles underlying ADR, in particular mediation and
conciliation, should be set out in statutory form.
2
CHAPTER 2
ADR
processes & Terminology
A
Introduction
2.01
In this chapter the
Commission examines ADR processes and terminology. In Part B the Commission
provides a general overview of ADR terminology and explains why it is necessary
to ensure that the more commonly used ADR terms are clearly defined. In Part C
the Commission defines the acronym ADR. In Part D the Commission provides an
overview of the ADR spectrum which is made up of a body of ADR processes. In
Part E the Commission defines and describes the main preventive ADR processes.
In Part F the Commission defines and describes the main facilitative ADR
processes. In Part G the Commission defines and describes the main advisory ADR
processes. In Part H the Commission describes and defines the main
determinative ADR processes. In Part I the Commission examines the concept of
collective ADR. In Part J the Commission defines and describes judicial ADR
processes.
B
ADR
Terminology: An Overview
2.02
An examination and clarification of ADR terminology is a necessary
starting point in any discussion of ADR. The terminology of the mechanisms that
make up the spectrum of dispute resolution processes appears to be understood
and interpreted in many different ways. One of the questions asked by many is
what is meant by conciliation and mediation? Whether they are the same and, if
not, what are the differences?[116]
2.03
|
|
The Rules of the Superior Courts
(Commercial Proceedings) 2004[117] and the Rules of the Superior Courts
(Competition Proceedings) 2005[118]
expressly mention both mediation and conciliation, but do not provide any
definitions of the terms. It must be assumed that those drafting the 2004 and
2005 Rules intended them to have different meanings.[119]
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.[120]
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.[121]
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.[122]
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.”[123]
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.”[124]
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.[125] ‘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
resolution. Within the family law area ADR has been renamed “primary dispute
resolution” in Australia for this reason.[126]
2.10
Furthermore, ADR has come to represent not only a body of processes for
dispute resolution but also a body of processes for dispute avoidance and
dispute management. This is increasingly evident in the employment sector.
Recognising this, it has been argued that the letters should be seen in their
own right as describing “a holistic concept of a consensus-oriented approach to
dealing with potential and actual disputes. The concept encompasses dispute
avoidance, dispute management and dispute resolution.”[127]
2.11
Today, ADR has flourished to the point that it has been suggested that
the adjective should be dropped altogether and that ‘dispute resolution’ should
be used to describe the modern range of dispute resolution methods and choices.[128]
The Commission has provisionally concluded that at this stage in its
development in Ireland it remains appropriate to refer to Alternative Dispute
Resolution the Commission.
2.12
The Commission defines ADR as a broad spectrum of structured
processes, including mediation and conciliation, which does not include
litigation though it may be linked to or integrated with litigation, and which
a involves the assistance of a neutral third party, and which empowers parties
to resolve their own disputes.
D
Classification
of the ADR Spectrum
2.13
Dispute resolution processes can be arranged along a spectrum which
correlates with increasing third party involvement, decreasing control of the
parties over the process and outcome, and, usually, increasing likelihood of
having the relationship between the disputants deteriorate during and after resolution
of the dispute.[129]
2.14
This spectrum can also be grouped into five distinct categories.
|
Preventive ADR |
Facilitative ADR |
Advisory ADR |
Determinative ADR |
Collective ADR |
Court-Based ADR |
|
Negotiation |
Mediation |
Conciliation |
Arbitration |
Ombudsman Schemes |
Early Neutral Evaluation |
|
Partnering |
|
Collaborative Lawyering |
Adjudication |
|
Court Settlement Masters |
|
ADR Clauses |
|
|
Expert Determination |
|
Court Referred ADR |
|
|
|
|
|
|
Small Claims Court |
2.15
The Commission now turns to discuss each of these categories of ADR in
turn.
E
Preventive
ADR Processes
2.16
Preventive ADR can be described as conflict avoidance processes that
provide for efficient and systematic management of disputes. It is obvious that
preventing unnecessary disputes can result in enormous monetary savings for
individuals, avoid relationship break-downs and enhance trust and confidence
between individuals.
2.17
Preventive ADR is a tool which is widely used in the construction and
employment sector. For example, The Advisory Development and Research Service
of the Labour Relations Commission advise on and develop specific grievance,
disciplinary, and disputes procedures. Section 1(5) of the Industrial
Relations Act 1990, Code of Practice on Dispute Procedures (Declaration) Order
1992[130] expressly promotes the use of preventive ADR in the
workplace:
“The major objective of agreed procedures is to establish
arrangements to deal with issues which could give rise to disputes. Such
procedures provide for discussion and negotiation with a view to the parties
reaching agreement at the earliest possible stage of the procedure and without
resort to any form of industrial action.”
2.18
It is becoming increasingly mandatory that, in employment and consumer
sectors, organisations must put in place internal structured dispute resolution
procedures to deal with grievances.[131]
There are various types of internal dispute resolution processes aimed at
resolving grievances fairly, consistently and in a timely manner. These can
range from a very formal arbitration procedure to the informal “open door”
policy. Normally employees or consumers must first exhaust these internal
procedures when a grievance occurs. If no resolution can be reached, the
parties may then proceed to use external mechanisms. These internal dispute
procedures resolve an overwhelming percentage of grievances and prevent the
escalation of the grievance into a full-blown dispute.
2.19
Preventive ADR processes include negotiation, partnering, ADR clauses,
joint problem solving, and systems design.
(1)
Negotiation
2.20
Negotiation is any form of voluntary communication between two or more
people for the purpose of arriving at a mutually acceptable agreement.
Negotiation is something that occurs in everyday life, without most of us
really being aware that we are engaging in a process. For example, it may
consist of a simple and informal conversation between a parent and a child
regarding an increase in pocket money. On the other end of the spectrum,
negotiation can be a highly structured and formal process between parties and
their solicitors on the steps of the courthouse. Indeed, the majority of
disputes, justiciable and non- justiciable, are resolved by this process and
negotiation is at the core of all ADR processes.
2.21
Ury and Fisher note that “Negotiation is a basic means of getting what
you want from others. It is a back and forth communication designed to reach an
agreement when you and the other side have some interest that are shared and
others that are opposed.”[132] By
contrast, in adversarial negotiations the sides often begin from fixed
positions with the two sides make offers and counteroffers supported by
arguments until reaching a settlement. “To a large extent, the settlement will
reflect the relative power of the parties”[133]
and may result in a win-lose situation.
2.22
Principled negotiation refers to the interest-based approach to
negotiation.[134] The
essence of this approach is that parties concentrate on solving the problem by
finding a mutually-beneficial solution rather than on defeating the other side.
The four fundamental principles of principled negotiation are :
1) separating the people from the
problem;
2) focusing on interests, not
positions;
3) inventing options for mutual
gain; and
4) insisting on objective criteria.[135]
2.23
In most settlement negotiations, parties are influenced consciously or
unconsciously by their assessment of their alternatives to a negotiated
agreement. The better their alternatives, the more they may may push for a more
favourable settlement. The worse their alternatives, the more accommodating
they may be in the settlement negotiations. This is sometimes referred to using
the acronym which refers to “best alternative to a negotiated agreement."[136]
BATNAs are important to negotiation because a party cannot make an informed
decision about whether to accept a negotiated agreement unless they know what
their alternatives are. Fisher and Ury outline a simple process for determining
a party’s BATNA:
·
develop a list of actions you might conceivably take if no agreement is
reached;
·
improve some of the more promising ideas and convert them into practical
options; and
·
select, tentatively, the one option that seems best.[137]
2.24
In effect, the BATNA is the best result the party can hope to achieve if
a settlement cannot be negotiated. For example, when negotiating a pay rise,
having another job offer with a different employer at a higher rate of pay may
be a powerful BATNA. The concept of determining a party’s BATNA is also used in
mediation and conciliation.
(2)
Partnering
2.25
Partnering is a co-operative arrangement between two or more parties. It
is based on the promotion and recognition of mutual goals and it requires all
parties to agree on how they will make decisions, including strategies for
resolving disputes during the lifetime of the project.
2.26
When partnering is successful, it can enhance communication and trust in
business relationships such as in the context of a building or public
infrastructure project. In that setting it addresses concerns of other
stakeholders, such as private developers, community groups, governmental
organisations and regulatory authorities, since they can be invited to
participate in the partnering process. This can help build widespread support
for a project.[138]
2.27
Partnering is used extensively in the construction industry. It was
first used by the US Army Corps of Engineers in the late 1980s and was first
applied in the UK in the North Sea oil and gas industries in the early 1990s.[139]
Successive UK construction industry review reports emphasised the importance of
partnering arrangements in order to facilitate and enhance team work across
contractual boundaries.[140]
2.28
Partnering is also promoted within the employment sector. The National
Centre for Partnership and Performance was established by the Irish Government
in 2001 to promote and facilitate workplace change and innovation through
partnership.[141]
2.29
Joint problem solving, consensus building and systems design are
concepts which are similar to partnering. They involve determining, in
advance, what processes will be used for handling conflicts which arise within
an organisation or between organisations and individuals.
(3)
ADR
Clauses
2.30
An ADR clause is a contractual clause requiring the parties to attempt
to settle any dispute arising out of the contract using an ADR process or
processes. The Law Society of Ireland offers the following standard clause for
mediation:
“If any dispute arises in connection with this agreement, the
parties will attempt to settle it by mediation. Unless otherwise agreed between
the parties, the mediator will be nominated by ...... Notice in writing
(“mediation request”) must be given by one party to the other party [ies] to
the dispute requesting a mediation. The mediation will start not later than [ ]
days after the date of the mediation request. [No party will commence court
proceedings / arbitration in relation to any dispute arising out of this
agreement until it has attempted to settle the dispute by mediation.]”[142]
2.31
Similarly, the International Centre for Dispute Resolution offers the
following short form model standard clause for international commercial
contracts:
"Any controversy or claim arising out of or relating to
this contract, or the breach thereof, shall be determined by arbitration
administered by the International Centre for Dispute Resolution in accordance
with its International Arbitration Rules."[143]
2.32
ADR clauses can also be ‘multi-tiered’ or ‘stepped’ which means that the
parties agree to move along the ADR spectrum and they are required to engage in
distinct and escalating stages of dispute resolution often finishing in final
and binding resolution by arbitration or litigation. In other words, if one
process fails, another dispute resolution process is attempted in order to
resolve the dispute. For example Clause 38 (a) of the RIAI Articles of
Agreement[144]
states that:
“If a dispute arises between the parties with regard to any of
the provisions of the Contract such dispute shall be referred to conciliation
in accordance with the Conciliation Procedures published by the Royal Institute
of Architects of Ireland in agreement with the Society of Chartered Surveyors
and the Construction Industry Federation. If a settlement of a dispute is not
reached under the Conciliation Procedures either party may refer the dispute to
arbitration.”[145]
2.33
The Commission notes that ADR clauses must be carefully drafted as the
Courts have shown a strong willingness to enforce them.[146]
F
Facilitative
ADR Processes
2.34
Facilitative processes involve a neutral and independent third party
providing assistance in the management of the process of dispute resolution.
The neutral and independent third party has no advisory or determinative role
in the resolution of the dispute or in the outcome of its resolution but
assists the parties in reaching a mutually acceptable agreement by encouraging
parties to define the issues with the aim of finding common ground between the
parties. This category of ADR includes the process of mediation.
(1)
Mediation
2.35
The mediation process consists of the neutral and independent third
party meeting with the parties who have the necessary authority to settle the
dispute. The mediator begins the process by explaining the process to the
parties, assessing the appropriateness of mediation to the situation and
ensuring that the parties are willing and able to participate. This is known as
a joint session.
2.36
The neutral and independent third party then meets with each party
privately to discuss their respective positions and their own underlying needs
and interests. These private meetings are known as caucus. Information which is
provided by the party to the third party during a caucus is strictly
confidential, unless a party expressly consents to the third party informing
the other party of such information.
2.37
Once all parties have expressed their views and interests to the
mediator in private, the mediator will try to establish areas of common ground
and provide the parties with the opportunity of exploring proposals for a
mutually acceptable settlement. When an agreement is reached between the
parties, the mediator will draft the terms of agreement, ensuring that all
parties are satisfied with the agreement, and have all parties sign the
agreement.[147] This
final session is known as the closing joint session.[148]
.jpg)
2.38
The parties are not bound by any positions taken during a mediation
until a final agreement is reached and signed, at which point it becomes an
enforceable contract. Mediation aims to achieve a ‘win-win’ result for the
parties to a dispute. Some of the proclaimed advantages of mediation include:
speed, privacy, cost, flexibility, informality, party-control, and preservation
of relationships.
2.39
Several varieties of mediation have been developed. Shuttle mediation is
a form of mediation where the mediator goes between the parties and assists them in reaching an agreement without
meeting "face to face".[149]
Transformative mediation does not seek resolution of the immediate problem, but
rather, seeks the empowerment and mutual recognition of the parties involved.[150]
Therapeutic mediation is an assessment and treatment approach that assists
families in dealing with emotional issues in high conflict separation and
divorce. The focus is on the parties themselves as opposed to the dispute.[151]
In evaluative mediation the third party plays a more advisory role in assisting
in the resolution of the disputes. The mediator allows the parties to present
their factual and legal arguments. After evaluating both sides, he or she may
then offer his or her own assessment of the dispute or put forward views about
the merits of the case or particular issues between parties. This form of
mediation mirrors conciliation.[152]
Community mediation is mediation of a community issue. [153] Peer mediation is a process whereby
young people, trained in the principles and skills of mediation, help
disputants of their own age group to find solutions to a range of disputes and
is often promoted in school settings for resolving disputes between peers.
2.40
Facilitation and fact-finding are similar concepts to mediation and
involve a neutral and independent third party assisting the parties in
identifying problems and positions but they do not impose or recommend any
solutions to the parties.
2.41
The Commission views mediation as a facilitative, consensual and
confidential process, in which parties to the dispute select a neutral and
independent third party to assist them in reaching a mutually acceptable
negotiated agreement. The participation of the parties in the process is
voluntary and the mediator plays no advisory or evaluative role in the outcome
of the process, but may advise on or determine the process.
G
Advisory
ADR Processes
2.42
Advisory processes include for example, conciliation and collaborative
lawyering. They are also called evaluative processes, because they involve a
neutral and independent third party, actively assisting the parties in reaching
a mutually acceptable agreement. [154] The third party may evaluate the
positions of the parties, advise the parties as to the facts of the dispute and
recommend options for the resolution of the dispute.
(1)
Conciliation
2.43
Conciliation is the process which is used by the Labour Relations
Commission to settle industrial disputes.[155]
It is also extensively used in the construction industry and is a feature of
the New Public Sector (GCCC) Contracts.[156]
2.44
Conciliation is a process similar to mediation but the neutral third
party takes a more interventionist role in bringing the two parties together.
In the event of the parties are unable to reach a mutually acceptable
settlement, the conciliator issues a recommendation which is binding on the
parties unless it is rejected by one of them. While the conciliator may have an
advisory role on the content of the dispute or the outcome of its resolution,
it is not a determinative role. A conciliator does not have the power to impose
a settlement. This interpretation of conciliation mirrors the Model Law on
International Commercial Conciliation of the United Nations Commission on
International Trade Law. Article 6 (4) of the Model law states that “The
conciliator may, at any stage of the conciliation proceedings, make proposals
for a settlement of the dispute.”[157]
(2)
Collaborative
Lawyering
2.45
Collaborative lawyering is a problem-solving method of dispute
resolution, used primarily for the resolution of family disputes, where the
parties and their lawyers agree, through a contractual commitment, to resolve
the issues without litigation. Typically, each spouse retains a solicitor to
help them to negotiate an outcome that they consider, following independent
advice, to be fair and acceptable.[158]
Lawyers represent the parties for settlement purposes only and should the
process end, both solicitors are disqualified from any further involvement in
the case. The aim is to find a fair and equitable agreement for the couple. The
success and effectiveness of the system depends on the honesty, cooperation and
integrity of the participants.[159]
2.46
If a client wishes to proceed through the collaborative law process,
both sides must sign a legally-binding agreement to disclose all documents and
information that relate to the issues. Negotiation sessions take place during
four-way meetings, with the solicitors and clients all meeting together. Both
the clients and the solicitors must agree to work together honestly and in good
faith. Neither party may go to court, or even threaten to do so, when
they are working within the collaborative law process.[160]
H
Determinative
ADR Processes
2.47
Determinative processes involve a neutral and independent third party
hearing both sides of the dispute and making a determination, which is
potentially enforceable, for its resolution. This category of ADR
includes the processes of arbitration, adjudication, and expert determination.
(1)
Arbitration
2.48
Arbitration is a long-established procedure in which a dispute is
submitted, by agreement of the parties, to one or more impartial and
independent arbitrators who make a binding and enforceable decision on the
dispute. It is a sophisticated method of dispute resolution in Ireland and is
the preferred method of dispute resolution in a number of sectors in Ireland,
including the construction and insurance industries.
2.49
Ireland has separate legal regimes for international and domestic
arbitration. Domestic arbitrations are governed by the Arbitration Act 1954
as amened by the Arbitration Act 1980. The Arbitration (International
Commercial) Act 1998 introduced the UNCITRAL Model Law as the procedural
framework for international arbitrations.
2.50
The arbitrator is usually selected from a panel of available arbitrators
or may have already been agreed upon in the arbitration clause. Once the
matter has been submitted to the arbitrator, the arbitrator will contact all
parties. A schedule will be set, which includes when all documents must be
exchanged, when all witnesses must be disclosed, when arbitration briefs are to
be submitted, and where and when the hearing will be conducted. A preliminary
meeting will be held at arbitrator's request. This may be a joint session with
all parties present or may be conducted by telephone conference. At the
arbitration hearing, each of the respective parties is allowed to present
evidence. After review of the evidence, the arbitrator will make an
"arbitrator's award.” After the arbitrator's award has been issued, the
prevailing party often has the ability to have it issued as an enforceable
court order.[161]
2.51
The Chartered Institute of Arbitrators, Irish Branch, which is a
non-statutory body, currently administers the training and promotion of
arbitration on the island of Ireland. The Institute refers to a number of
advantages which it states arbitration enjoys over litigation:
·
Flexibility: The arbitrator is typically chosen by the parties or
nominated by a trusted third party.
·
Specialist Knowledge: The arbitrator will usually have specialist
knowledge of the field of activity.
·
Efficiency: The parties can decide on the location, language and to a
great extent, the timing of the hearing to facilitate the parties and their
witnesses.
·
Informality: The process is less formal than court.
·
Certainty: The arbitral award is binding and enforceable.
·
Finality: The arbitral award is final and cannot be appealed.
·
Speed: Expedition results in cost savings.
·
Privacy: Arbitral awards are private and do not become binding
precedents.[162]
2.52
There are now many variants of arbitration developing in other
jurisdictions. These include
·
Baseball arbitration - In this arbitral process, each party submits a
proposed monetary award to the arbitrator. At the conclusion of the hearing,
the arbitrator is required to select one of the proposed awards, without
modification. This approach, sometimes called “Last Offer Arbitration”,
severely limits the arbitrator's discretion.[163]
·
Bounded arbitration: In this process the parties agree privately without
informing the arbitrator that the arbitrator's final award will be adjusted to
a bounded range.[164]
·
Incentive arbitration: In this form of arbitration, the parties agree to
a penalty if one of them rejects the arbitrator’s decision, resorts to
litigation, or fails to improve his position by some specified percentage.
Penalties may include payment of attorneys' fees incurred in the litigation;[165]and
·
High-low arbitration: This is an arbitration in which the parties agree
in advance to the parameters within which the arbitrator may render his or her
award.[166]
(2)
Hybrid
Models including combinations of mediation and arbitration: Med-Arb and Arb-Med
2.53
Hybrid models, which involve a combination of mediation and arbitration,
have also developed. These hybrid processes are known as med-arb and arb-med.
Both models allow the parties to select a single third party to serve as both
mediator and arbitrator.
2.54
Med-arb is a process in which the parties first attempt to settle the
dispute through mediation. If mediation does not yield a settlement, the
mediator switches roles from mediator to arbitrator, and imposes a binding
decision on the disputing parties. Med- arb is commonly used in labour disputes
in the United States and is considered suitable for patent disputes also.[167]
2.55
Arb-med is a process where the parties first present their case to
arbitration. At the end of the hearings, the arbitrator writes up a decision
and seals it without disclosing its contents to the parties. Then, for a fixed
period the parties mediate the dispute. If the parties reach agreement before
the deadline for the end of the mediation, the parties never learn about the
contents of the arbitrator’s decision. If they do not reach agreement by the
specified deadline, the arbitrator’s decision becomes final and binding on the
parties.[168] The
arb-med procedure has been used in South African union management relations in
the auto and steel industries and, to a limited extent, in the United States.
2.56
These hybrid models have been met with some criticism. It has been
suggested that the parties are likely to be inhibited in their discussions with
the mediator if they know that the mediator might be called upon to act as
arbitrator in the same dispute;[169]
and a third party who mediates and then assumes the role of arbitrator may be
biased by what has been conveyed to him or her informally and confidentially in
the mediation process.[170]
2.57
The Commission views mediation and arbitration as two very distinct ADR
processes. The Commission recognises that many disputes which are not settled
by mediation may then be arbitrated.
(3)
Adjudication
2.58
Adjudication is a process similar to expert determination and involves a
neutral and independent third party, an adjudicator, who uses his or her own
knowledge and investigations, whilst also weighing the evidence presented by
the parties, in order to reach a legally binding decision.
2.59
Adjudication is used in this jurisdiction by the Private
Residential Tenancies Board (PRTB) to resolve disputes between landlords and
tenants. A PRTB adjudicator is appointed to the case and examines the
evidence of the parties and investigates the dispute fully. The Adjudicator
will decide how the dispute is to be resolved. The hearing is confidential. An
adjudication decision that is not appealed will become a binding determination
order of the PRTB in resolution of the dispute.[171]
Adjudication is also used by the Financial Service Ombudsman’s to resolve
complaints that have not been settled by mediation.[172]
The process is most commonly associated with the resolution of disputes in the
building and construction industry in the UK.
(4)
Expert
Determination
2.60
Expert determination is a process in which the parties to a dispute
appoint a neutral and independent third party to make a final and binding
determination on a dispute which relates to that expert’s particular area of
specialisation. The parties therefore agree in advance to be bound by the
decision of the expert determination.
2.61
Expert determinations can be particularly useful in disputes involving
technical issues. For example, Bord Gáis Eireann’s dispute resolution
procedures provide that a dispute relating exclusively to technical issues
which is not resolved by mediation within 30 days may be referred to
“determination by an Expert.”[173]
2.62
Expert determinations are often conducted purely on written submissions.
It has been suggested that this makes the process short and cost effective
compared to litigation. It can also be used in conjunction with other dispute
resolution systems such as mediation, where a technical issue needs to be
resolved quickly and with the correct expertise. Common examples of expert
determination include the use of a surveyor in a rent review, or an accountant
to provide a valuation under a share purchase agreement.[174]
2.63
Whilst the expert determination process can resemble arbitration there are
several notable differences between the two processes.[175]
There are currently no statutory provisions applicable to expert
determinations. In terms of enforcement, an expert’s determination will not be
enforceable domestically without separate court action.[176]
Consequently, whilst expert determination may resolve the dispute in a quickly,
enforcing the determination may necessitate arbitration or litigation in any
event.[177]
I
Collective
ADR
2.64
Collective ADR can be used successfully as a method of dealing with
multi-party scenarios without resorting to litigation. An example of collective
ADR was the Alder Hay mediation case.[178]
Similarly, “test cases” such as those used in the Social Welfare Equality
Claims of the 1980s can be used as a means of assisting the administrative
resolution of similarly situated parties.[179]
In 2002 a single complaint by a visually impaired man to the Office of the
Ombudsman resulted in almost 700 similarly situated people receiving an
increased social welfare allowance.[180]
2.65
Collective ADR processes can also prevent the creation and escalation of
disputes through regulation. Examples of regulators include the Environmental
Protection Agency,[181]
the Health and Safety Authority,[182]
Financial Regulator,[183] the
Commission for Energy Regulation,[184]
the Commission for Aviation Regulation,[185]
and the Commission for Communications Regulation.[186]
As noted in the Law Reform Commission’s Report on Multi-Party Litigation “the
impact of effective regulatory mechanisms will often work to prevent the wrong
arising in the first place and thus head off the need for any form of
multi-party litigation from the outset.”[187]
2.66
In addition to the collective ADR processes represented by regulators
another collective ADR process is offered by ombudsman schemes.
(1)
Ombudsman Schemes
2.67
An Ombudsman can either be appointed by statute or through a
non-statutory sectoral scheme. Ombudsmen have wide powers of investigation and
their recommendations need not be limited to the form of orders commonly
associated with litigation. There are a number of Ombudsmen operating in the
State.
(a)
Office of the Ombudsman
2.68
The Office of the Ombudsman which was created by the Ombudsman Act
1980, investigates complaints against Government
Departments and Offices and other public bodies such as local authorities, the
Health Service Executive and An Post. The Office of the Ombudsman has dealt
with over 68,000 complaints since its inception. In 2007, 2,578 valid
complaints were received by the Ombudsman which was an increase of 14.8% on the
intake for 2006. In addition 9,334 enquiries were dealt with during 2006.[188]
2.69
Most complaints are finalised following an informal examination but, if
it is not possible to resolve the complaint informally, the Ombudsman may
decide to undertake a formal investigation of the matter. If, at the end of
this process, the complaint is found to be justified the Ombudsman will make
recommendations to resolve it.
2.70
The Ombudsman has extensive powers. They can demand any information,
document or file from a public body complained of and can require any official
to give information about a complaint. In most instances the Ombudsman's
recommendations are complied with but if the public body concerned fails to act
on the Ombudsman's recommendations he or she may present a special report to
the Houses of the Oireachtas on the matter.
2.71
Typical examples of matters dealt with by the Ombudsman include:
entitlement to old age and retirement pensions; disputes about income tax
credits; entitlement to higher education grants; entitlement to agricultural
livestock grants; entitlement to local authority housing; and disputes about
the medical card scheme.[189]
Ombudsman Case Study
The complainant's car was
ticketed for being parked on a yellow box in a Castlebar Town Council car park.
The complainant acknowledged that she may not have been parked in a designated
parking space but maintained that, on the day in question, it was snowing and
that when she arrived at the car park the ground was covered with snow and
there was no way of knowing the exact location of the designated parking
spaces. She appealed the matter to the Council but her appeal was rejected. The
Traffic Warden who had issued the ticket maintained that, at the time of the
offence, there was no snow on the ground and that there is an onus on drivers
to be aware of parking signs etc. The Ombudsman considered that while the
complainant was not parked correctly, having regard to the circumstances which
existed on the day, inflexibility in the application of the relevant
regulations would give rise to inequity in this case. The Ombudsman requested
that the Council review its position and having considered the situation in
detail the Council decided to cancel the fine and issued a refund to the
complainant.[190]
2.72
This mediated result indicates the broad extent of the Ombudsman’s
statutory role.
(b)
Financial Services Ombudsman
2.73
Voluntary ombudsman schemes for the credit institutions and the
insurance sector were in place in Ireland since the early 1990s. These schemes
constituted recognition by the sectors that a complaints resolution process
outside of the courts was necessary and appropriate. While the voluntary
schemes worked well it was felt in the late 1990s that a statutory Ombudsman
scheme for all providers of financial services with enhanced statutory powers
was necessary.[191] This was
enacted in the Central Bank and Financial Services Authority of Ireland Act
2004.
2.74
The Financial Services Ombudsman deals independently with unresolved
complaints from consumers about their individual dealings with all financial
service providers. The service is currently free to eligible consumers who
include all natural persons, limited companies with a turnover of €3 million or
less (SMEs), and unincorporated bodies, including clubs, charities, trusts and
partnerships.
2.75
The principal function of the Financial Services Ombudsman is to deal
with complaints by mediation and, where necessary, by investigation and
adjudication.[192]
Participation in the mediation by the parties to a complaint is voluntary, and
a party may withdraw at any time. The Financial Services Ombudsman may abandon
an attempt to resolve a complaint by mediation on forming the view that the
attempt is not likely to succeed.[193]
Evidence of anything said or admitted during a mediation, or an attempted
mediation, of a complaint, and any document prepared for the purposes of the
mediation, are not admissible in any subsequent investigation without the
consent of the person who made the admission, or in any proceedings before a
court or a tribunal.[194]
2.76
The Financial Services Ombudsman can direct a financial service provider
to do one or more of the following: rectify or change the conduct complained of
or its consequences; provide reasons or explanation for that conduct; change
that practice; pay compensation up to a maximum of €250,000 or €26,000 annuity;
or take any other lawful action.[195]
2.77
The Financial Services Ombudsman has extensive legal powers to require
the financial services provider to provide information including the power to
require employees to provide information under oath. If necessary the Ombudsman
can enter premises of providers and demand the production of documents.[196]
In the case of non compliance, the Financial Services Ombudsman can seek a
Circuit Court Order. Any person who obstructs the Financial Services Ombudsman
commits an offence and is liable on summary conviction to a fine of up to
€2,000, imprisonment for up to 3 months or both.[197]
2.78
In 2007, 4,374 complaints (2,445 involving insurance sector and 1,929
involving credit institutions) were received by the Ombudsman. This was an
increase of 15% over 2006.[198] In 2005,
the highest compensation awarded by the Ombudsman was €56,000 against a credit
institution and €32,000 against an insurance sector provider. [199] By contrast, €116,000 was awarded in
five instances in 2007 and over €200,000 was awarded to a professional rugby
player.[200]
Financial Services Ombudsman Case Study
The complainant had booked a
holiday. After the booking she was diagnosed with a serious illness and as a
result was not able to travel. The complainant then claimed her cancellation
costs of €4,000 from the insurance company with whom she had arranged travel
insurance.
The company informed her that
as holiday would have lasted 61 days, it would not be covered by the insurance
policy. The insurance policy stated that: “The duration of a trip must not
exceed 60 days”. The complainant claimed that her holiday was for 59 nights
and, with the varying schedule of flights, her trip would not have exceeded the
time frame of 60 days.
The Financial Services
Ombudsman noted that the insurance policy did not specifically provide a
definition in its policy document as to what constituted a “day” for the
purpose of cover and he referred to a dictionary definition of a “day” - “A
period of 24 hours as a unit of time usually from midnight to midnight”. Using
this definition, and taking the times of departure and arrival to be exact, he
found that the complainant’s intended trip would have only been for 59 full
days. He directed the company to pay the complainant her cancellation costs.[201]
2.79
This determination used interpretive techniques familiar to lawyers. The
difference in this case is that the adjudicative process was free to the
consumer.[202]
(c)
Office of the Pensions Ombudsman
2.80
The Pensions Ombudsman was established by Part 11 of the Pensions Act
1990 (inserted by the Pensions (Amendment)
Act 2002) to investigate and decide complaints and
disputes involving occupational pension schemes and Personal Retirement Savings
Accounts (PRSAs).
2.81
Complaints are usually made against those responsible for the management
of occupational pension schemes and PRSAs. A complaint may be against those who
are (or have been) trustees, managers, employers, former employers and
administrators (including PRSA providers). The Pensions Ombudsman also
investigates disputes of fact or law concerning pension schemes, between
members and others entitled to benefit from the schemes, and trustees or
managers or employers.[203]
2.82
The Pension Ombudsman Regulations 2003[204] require that all occupational pension scheme trustees
and PRSA providers put in place internal procedures for dealing with complaints
and disputes that come under the jurisdiction of the Pensions Ombudsman. The
outcome of an internal dispute resolution procedure is not binding on any party
to a dispute. The right to complain to the Pensions Ombudsman remains available
if the individual is dissatisfied at the end of the internal dispute resolution
procedure.[205] The
Pensions Ombudsman has discretion to waive the requirement for internal
disputes resolution in appropriate circumstances.
2.83
When the Pensions Ombudsman nears the end of an investigation, he may,
but will not always, give a "preliminary view" to all parties to the
complaint or dispute. This will list the facts as found during the
investigation and the Pension Ombudsman's view on how he is likely to rule on
the matter. This can be said to be similar to the process of early neutral
evaluation. At that stage the parties will have a chance to provide any further
information or evidence that they feel is important to the case.
2.84
The Pensions Ombudsman will then make a final ruling. Financial
compensation may be awarded in a case where the Pensions Ombudsman decides that
a complainant has been at a financial loss due to the poor administration of a
pensions scheme or a PRSA. The Pension Ombudsman's ruling is final, subject to
a right of appeal to the High Court. The Pensions Ombudsman may make a ruling
even if the complaint is withdrawn during the investigation.
2.85
The Pensions Ombudsman, under section 137 of the Pensions (Amendment)
Act 1990, has the statutory power to formally require any person who, in
the opinion of the Pensions Ombudsman, is in possession of information, or has
a document in his power or control, that is relevant to the investigation to
furnish that information to the Pensions Ombudsman for the purposes of the
investigation. If it appears to the Pensions Ombudsman that a person has failed
to furnish this information, the Pensions Ombudsman may apply to the Circuit
Court for an order requiring that person to comply with the requirement. In May
and April 2008, the Pensions Ombudsman initiated separate legal actions to
secure court orders against builders who had failed to produce the requested
documents. The Pensions Ombudsman has stated that
“Anybody who
fails to comply with a request for information from my Office should be fully
alive to the fact that I will not hesitate to instigate a criminal action for
non compliance and civil action to enforce the request.”[206]
2.86
In 2006, of a total of 730 complaints made or on hand, 117 were resolved
by mediation.[207] The
average time taken to arrive at a satisfactory resolution through mediation was
33 weeks, compared with an average of 64 weeks where a final determination was
made.[208] This
indicates the benefits in terms of time efficiency in a mediated resolution as
opposed to one which requires a final adjudicated decision. In 2007, the
Pensions Ombudsman succeeded in closing 584 cases which was an increase of 90%
on 2006. The construction industry was instructed by the Pensions Ombudsman to
repay over €1.6 million in arrears in pension and death benefit in 2007.[209]
|
Cases Received |
2004 |
2005 |
2006 |
2007 |
|
Total
|
297 |
389 |
439 |
515 |
(d)
Ombudsman for Children
2.87
The Ombudsman for Children is a free, independent and impartial
complaints handling service which was established under the Ombudsman for
Children Act 2002. The Ombudsman may
examine complaints made by children (or adults on their behalf) against public
organisations, schools or hospitals. In accordance with the 1989 Convention
on the Rights of the Child the Ombudsman also promotes the rights of
children in the Convention and assists the development of government policy on
children.
2.88
By December 2007, 1,710 complaints had been received by the Ombudsman
for Children, representing a 43% increase from 2006.[210]
Ombudsman for Children Case Study
A mother made a complaint that
her local authority had failed to provide adequate housing for her son who had
been diagnosed with a progressive disabling disease. The mother refused a house
offered by the local authority on foot of medical advice that the accommodation
would not meet her son’s specific and changing needs. The local authority
contended that the house was developed for her son in consultation with his
occupational therapist. Since 2000, the local authority had refused to review
the child’s case despite several medical representations outlining the
deterioration in the boy’s condition.
Following an investigation, the
Office of the Ombudsman for Children found that there was no evidence that the
house had been adapted for the boy’s specific needs and, therefore, did not
constitute a reasonable offer and that no review of the case took place for a
period of almost 4 years. On this basis, the Office made a number of
recommendations including that the child’s case be reviewed to find a suitable
housing solution for him; that the local authority administrative processes be
reviewed; and that the local authority adopt a more integrated and responsive
approach to children. The local authority recognised the findings and
recommendations as fair and accurate and agreed to work on implementing them.[211]
(e)
Ombudsman for the Defence Forces
2.89
The Ombudsman for the Defence Forces was established by the Ombudsman
(Defence Forces) Act 2004. The Ombudsman for the Defence Forces
investigates complaints by members and former members of the Defence Forces
where these have not been adequately addressed by the internal military
complaints process.
2.90
Serving members of the Permanent Defence Forces and the Reserve Defence
Forces must, first, make a complaint through the internal Defence Force
structures under section 114 of the Defence Act 1954. If, 28 days after making
that complaint, there is no resolution of the dispute a serving member of the
Defence Forces is entitled to bring their complaint to the Ombudsman. Former
members of the Permanent Defence Forces and former members of the Reserve
Defence Forces can make a complaint directly to the Defence Ombudsman. Serving
and former members of the Defence Forces have to make a complaint either within
12 months of the action happening or within 12 months of becoming aware of the
action.[212]
2.91
The Ombudsman for the Defence Forces has wide powers to investigate any
action that may have been taken without proper authority, taken on irrelevant grounds,
the result of negligence or carelessness, based on wrong or incomplete
information, improperly discriminatory or contrary to fair or sound
administration.[213]
2.92
If the investigation finds that the person who made the complaint was
adversely affected by the action, the Ombudsman for the Defence Forces will
make recommendations to the Minister for Defence. The recommendations may set
out measures that should be taken to rectify the situation. If the Ombudsman
for the Defence Forces believes that the response of the Minister for Defence
to their recommendations is unsatisfactory then he or she may issue a special
report on the case. That special report will be included in the Office’s Annual
Report. The recommendations made by the Ombudsman for the Defence Forces to the
Minister for Defence, and the Minister's response, will be provided to the
person who made the complaint.[214]
2.93
In 2007, the Ombudsman received 168 complaints which represented a 121%
increase on 2006. 76 cases were referred to the Office, a 192% increase on
2006. 29 final reports issued, with 20 cases upheld.[215]
(f)
Garda Síochána Ombudsman Commission
2.94
The Garda Síochána Ombudsman Commission was established under the Garda
Siochana Act 2005. The
Ombudsman Commission is empowered to: investigate complaints against members of
the Garda Síochána; investigate any matter, even where no complaint has been
made, where it appears that a Garda may have committed an offence or behaved in
a way that would justify disciplinary proceedings; and investigate any
practice, policy or procedure of the Garda Síochána with a view to reducing the
incidence of related complaints.
2.95
Any member of the public who is directly affected by or who witnesses
conduct by a member of the Garda Síochána that is alleged to constitute
misbehaviour can complain to the Garda Ombudsman. Generally complaints are to
be made within 6 months of the incident in question. The Garda Ombudsman may
extend this time limit if it considers that there are good reasons for doing
so. If a complaint is admissible the Garda Ombudsman may then refer less
serious complaints for resolution through mediation or informal resolution
process.
2.96
Section 90 of the Garda Siochana Act 2005 provides that mediation
or other informal resolution may take place with the consent of both the
complainant and the Garda member who is the subject of the complaint.[216]
The process involved is confidential and anything said may not be used in any
civil or criminal proceedings.[217]
2.97
The mediation process functions under the auspices of a Mediation Unit
managed by Garda Ombudsman Case Officers and is undertaken by accredited
mediators. These may be Garda Ombudsman staff or independent mediators
appointed from an approved panel.[218]
2.98
If mediation succeeds no further action need be taken in respect of the
complaint. Both parties will record the successful resolution in writing and a
copy of this will be kept by the Garda Ombudsman. The Garda Commissioner will
be advised of the resolution and any record of the complaint held by the Garda
Síochána will be expunged. If mediation does not succeed due to the failure of
the complainant to provide reasonable assistance for the purpose of conducting
the mediation process, the Garda Ombudsman retains the discretion to either
close the case or to have it investigated pursuant to section 92 of the 2005
Act.
(g)
Press Ombudsman
2.99
The Office of the Press Ombudsman is part of a new system of independent
regulation for the print media in Ireland connected with a 2007 Code of
Practice agreed by the Press Council, a representative body of the industry.
The aim of the Ombudsman is to provide the public with a quick, fair and free
method of resolving any complaints about newspapers and periodicals that breach
the Code of Practice.
2.100
The Ombudsman's Office will, in the first instance, attempt to resolve
the matter by making direct contact with the editor of the publication
concerned. It will outline the complaint to the publication and seek to resolve
the matter by a process of conciliation. If conciliation is not possible, the
Ombudsman will examine the case and make a decision and may also refer
significant or complex cases to the Press Council. The Defamation Bill 2006 when
enacted will give statutory backing to the Press Ombudsman.[219]
(h)
Legal Services Ombudsman
2.101
The Legal Services
Ombudsman is to be established under the Legal Services Ombudsman
Bill 2008.[220]
Members of the public will be able to appeal to the Legal Services Ombudsman if
they are dissatisfied with the outcome of complaints to the disciplinary bodies
of the Law Society of Ireland (which deals with complaints concerning
solicitors) or the Bar Council of Ireland (which deals with complaints
concerning barristers).
2.102
The 2008 Bill states that the functions of the Legal Services Ombudsman
are to receive and investigate complaints about the handling by the Law Society
and Bar Council of complaints made to them by clients of barristers and
solicitors, to ensure that such complaints are dealt with fairly, effectively
and efficiently by the two professional bodies, to assess the adequacy of their
admissions policies and to promote public awareness of the complaints
procedures of the two bodies.[221]
2.103
Sections 21 and 22 of the 2008 Bill provide for the making and
investigation of complaints. A complaint may be made to the Ombudsman
concerning the handling by the Bar Council or the Law Society of a complaint
against a barrister or solicitor. A complaint may also be made to the Ombudsman
about a decision of the Law Society to make or refuse to make a payment from
the Law Society’s Compensation Fund which deals with money taken in a
fraudulent manner by solicitors. Complaints to the Legal Services Ombudsman
must be made within 6 months of the determination of the related complaint by
the relevant body.
2.104
Individuals or the professional bodies may ask the High Court to stop an
investigation, and the High Court can also be asked to decide on instances where
the Ombudsman might refuse to discuss specific cases before committees of the
Oireachtas.[222]
(i)
The European Ombudsman
2.105
The Office of European Ombudsman, which is an office of the European
Union, investigates complaints about maladministration in the activities of EU
institutions and bodies, with the exception of the Court of Justice and the
Court of First Instance acting in their judicial role. The European Ombudsman
has defined "maladministration" by reference to a failure to respect
human rights, the rule of law and principles of good administration. The
Ombudsman usually conducts inquiries on the basis of complaints but can also
launch inquiries on his own initiative. [223]
2.106
The European Ombudsman may simply need to inform the institution
concerned about a complaint in order for it to resolve the problem. If the case
is not resolved satisfactorily during the course of his inquiries, the
Ombudsman will try, if possible, to find a friendly solution which puts right
the case of maladministration and satisfies the complainant. If the attempt at
conciliation fails, the European Ombudsman can make recommendations to solve
the case. If the institution does not accept the recommendations, he can make a
special report to the European Parliament
2.107
If an inquiry leads to a finding of maladministration, the European
Ombudsman tries to achieve a friendly solution whenever possible. In some
cases, a friendly solution can be achieved if the institution or body concerned
offers compensation to the complainant. Any such offer is made ex gratia, that
is, without admission of legal liability and without creating a legal
precedent.
2.108
In 2007, the European Ombudsman received 3,211 new complaints, compared
to 3,830 in 2006. In almost 70% of cases, the Ombudsman was able to help the
complainant by opening an inquiry into the case, transferring it to a competent
body, or giving advice on where to turn for a prompt and effective solution to
the problem. The main e-mail account of the Ombudsman was used to reply to a
total of 7,273 e-mails requesting information in 2007. Of these, 3,127 were
mass mailings submitted by citizens and concerned complaints already received
by the European Ombudsman, while 4,146 constituted individual requests for
information. In total, therefore, the European Ombudsman handled 10,484
complaints and information requests from citizens in 2007.[224]
2.109
The main types of maladministration alleged were lack of transparency,
including refusal of information (28% of cases), unfairness or abuse of power
(18%), unsatisfactory procedures (13%), avoidable delay (9%), discrimination
(8%), negligence (8%), legal error (4%), and failure to ensure fulfilment of
obligations, that is, failure by the European Commission to carry out its role
as "guardian of the EC Treaty” (3%).[225]
European Ombudsman Case Study[226]
The Ombudsman received a
complaint alleging that the European Commission had wrongly failed to take
action against Ireland for possible infringement of the EC Habitats Directive.
The complainant also complained about the Commission's decision not to take
further action on arguments relating to possible infringement of the Waste
Directive. The Ombudsman found that the Commission had provided a reasonable
explanation of its strategic role in relation to the implementation of these
Directives. He also noted that the Commission had given the complainant
relevant useful advice in this case.
2.110
As can be seen from the case study above, it is important to note that
the Ombudsman process can lead to a decision in favour of the party about whom
a complaint is made.
J
Judicial
ADR Processes.
2.111
Judicial ADR processes are dispute resolution processes which often
occur after litigation has been initiated and during the lead up to the
commencement of a trial and are aimed at reaching a settlement on some or all
issues. These processes may involve the assistance of a judge of the Court or a
Court official in overseeing the process.
2.112
Judicial ADR processes are well developed in Canada and the United
States and include early neutral evaluation, mini-trial, Court settlement
conferences and small claims procedures. The small claims procedure is also now
well-established in Ireland, operating through the District Court.
(1)
Small
Claims Court
2.113
The small claims procedure is an alternative method of commencing and
dealing with certain civil proceedings. It is currently regulated under the District
Court (Small Claims Procedure) Rules 1997 and 1999. It provides a
fast and inexpensive alternative dispute resolution process for consumers
without having to use a solicitor.[227]
2.114
This process allows parties to a dispute to resolve the issues between
them by mediation through a District Court clerk, who for this purpose is
called the Small Claims Registrar. These court officials settle many cases
through mediation without having to list the case for court. The small claims
procedure operates an online dispute resolution procedure where claims can be
filed online. The current maximum jurisdiction of the small claims procedure is
€2,000. As noted by the Consumer Strategy Group, “The disproportionate costs
and time involved in legal action have been alleviated to some degree by the
introduction of the Small Claims Court, whose procedures are simpler and whose
costs are low.” [228]
(2)
Early
Neutral Evaluation
2.115
Early neutral evaluation is a process in which parties to a dispute
appoint a neutral and independent third person, usually a judge or somebody
legally qualified, who provides an unbiased evaluation of the facts, evidence
or legal merits of a dispute and provides guidance as to the likely outcome
should the case be heard in court. The evaluation is without prejudice and is
non-binding.[229]
2.116
The purpose of early neutral evaluation is to reduce the costs of
litigation by facilitating communications between the parties while at the same
time providing them, early in the process with a realistic analysis of their
case.[230] It is
often described as a means of providing the parties with a ‘reality-check’ of
the strengths and weaknesses of their case. Early neutral evaluation often
occurs early in the litigation process, traditionally in the pre-trial period
prior to the commencement of discovery (the exchange of detailed documents
between the parties).
2.117
The evaluator holds an informal meeting of clients and their legal
representatives where each side presents the evidence and arguments supporting
its case. The evaluator identifies areas of agreement and clarifies and focuses
the issues. The evaluator generally writes an evaluation in private that may
include an assessment of the relative strengths and weaknesses of each party's
case and the reasoning that supports this assessment. This evaluation is
provided to the parties either privately or jointly.
2.118
Early neutral evaluation is often appropriate when the dispute involves
technical or factual issues that lend themselves to expert evaluation. It is
also used when the parties disagree significantly about the value of their
cases. In Australia, early neutral evaluation is increasingly used in family
law disputes where a husband and wife are in conflict over issues arising out
of their martial breakdown. The evaluator, who is often a family law
specialist, will provide to both parties an early neutral evaluation of the
likely result if the matter were to be litigated in the Family Court. This
process is also used in certain US state courts, and is offered by the English
Commercial Court judges and the Technology and Construction Court.[231]
2.119
Case appraisal is a similar process to early neutral evaluation in which
a neutral and independent third party investigates the dispute and provides
advice on possible and desirable outcomes for the resolution of the disputes.
(3)
Mini
Trial
2.120
The mini trial is a flexible voluntary process that involves a blend of
mediation, adjudication and negotiation procedures. It can be described as a
highly structured settlement process.
2.121
A procedural agreement is usually drawn up between the parties,
outlining their obligations, their right to terminate the process, the confidentiality
of the process, and the effect on any litigation. Before the mini trial there
is an exchange of documents, without prejudice to any litigation if the
mini-trial is unsuccessful. The parties select a neutral adviser, often a
retired judge or expert in the matter of the dispute, to preside over the
mini-trial. The adviser’s role is that of a facilitator in the proceedings, as
in mediation. However, if settlement is not reached, the advisor may be asked
what the likely trial outcome would be and so acts then as an arbitrator in a
non-binding arbitration. At the mini-trial, lawyers for each side make summary
presentations, generally in the range of one to six hours. Witnesses, experts
or key documents generally may be used. Once an agreement is reached, it is
enforceable as a contract between the parties.[232]
2.122
The judicial mini-trial, used in Canada and the United States, is a
voluntary process similar to early neutral evaluation. The primary difference
is that a judge serves as the evaluator. In the process, the parties’ legal
representatives present brief argument to a judge, who will not be the judge if
the case goes to trial. The judge hears both sides and then meets with the
parties and their legal representatives in an attempt to resolve the dispute.
In doing so, the judge may point out the strengths and weaknesses of each
party’s case.
(4)
Court
Settlement Process
2.123
Court settlement process is a process similar to the judicial mini-trial
and was introduced into the England and Wales Technology and Construction Court
in 2006 as a pilot scheme. It is a confidential, voluntary and non-binding
dispute resolution process in which a settlement judge (who is a judge of the Technology
and Construction Court) assists the parties in reaching an amicable settlement
at a court settlement conference.[233]
2.124
Unless the parties otherwise agree, during the court settlement
conference the settlement judge may communicate with the parties together or
with any party separately, including private meetings at which the settlement
judge may express views on the disputes. Each party must cooperate with the
settlement judge. A party may request a private meeting with the settlement
judge at any time during the court settlement conference. The parties shall
give full assistance to enable the court settlement conference to proceed and
be concluded within the time stipulated by the settlement judge. If an
agreement is reached, it becomes binding on the parties once they sign the
agreement. If no settlement is reached, the case continues, but with a
different judge. The settlement judge cannot be called as a witness in any
future proceedings connected with the claim. After the process, the
parties have the option of asking the settlement judge for an
"assessment", giving his views on the dispute, including prospects of
success and likely outcome. This will be entirely confidential and the parties
will not be able to use or refer to it in any subsequent proceedings.[234]
2.125
Judicial settlement conferences are either permitted or required by
statute in many United States courts as a procedural step before trial.[235]
Federal judges are expressly authorised under Rule 16 of the Federal Rules
of Civil Procedure 2007 to use settlement procedures to resolve the case or
controversy before the court. Local court rules often provide for mandatory
settlement conferences during the pre-trial proceedings. The judge handling the
case may conduct informal settlement discussions with the parties but, in
recent years, a practice has developed of assigning a judge or magistrate to
conduct the settlement conference. This judge will not be the judge to try the
case if settlement is unsuccessful. This separates the roles of adjudicator and
mediator. Once again, the settlement judge has no power to impose settlement
and does not attempt to coerce a party to accept any proposed terms. The
parties may agree to a binding settlement. If no settlement is reached,
the case remains on the litigation track.
K
Conclusion
2.126
The Commission
considers that ADR processes should become an integral part of the civil
justice system. Therefore it is important that ADR processes and terminology
are clearly defined and understood in order to increase confidence and trust in
their suitability and potential for resolving disputes.
2.127
The Commission provisionally recommends that the more commonly used
ADR terms, in particular mediation and conciliation, should be clearly and
consistently defined in legislative form.
2.128
The Commission provisionally recommends that when provision for
mediation is made in legislative form, it should be defined as a facilitative,
consensual and confidential process, in which parties to the dispute select a
neutral and independent third party to assist them in reaching a mutually
acceptable negotiated agreement.
2.129
The Commission provisionally recommends that when provision for
conciliation is made in legislative form, it should be defined as an
advisory, consensual and confidential process, in which parties to the dispute
select a neutral and independent third party to assist them in reaching a
mutually acceptable negotiated agreement.
3
CHAPTER 3 GENERAL PRINCIPLES and OBJECTIVES of
ADR
A
Introduction
3.01
ADR systems and schemes are usually established in an attempt to fulfil
policy goals and objectives, which are in turn drawn from a set of main
principles.[236] In
Ireland, ADR processes such as mediation and conciliation already form part of
many statutory codes, ranging from industrial relations to commercial
litigation. These codes do not currently contain a set of basic principles
which explain the operation of these ADR processes. The Commission agrees with
the view that such principles are essential foundations to enable the full
development and operation of ADR processes in the context of civil and
commercial matters.[237]
3.02
In this chapter the Commission examines several of the main objectives
and principles of ADR in particular in connection with mediation and
conciliation. Part B explores the voluntary nature of ADR. Part C examines the
principle of confidentiality. Part D considers the principles of self-determination
and party empowerment. Part E discusses the objective of ensuring efficiency in
ADR through the speedy and economical resolution of disputes. Part F sets out
the principle of flexibility. Part G describes the principles of neutrality and
impartiality in guaranteeing that the ADR processes are fair for all parties
involved. Part H discusses the important objective of delivering and ADR system
delivers a quality process to consumers. In Part I, the Commission summaries
the objectives and principles which are contained in the Directive of the
European Parliament and of the Council on Certain Aspects of Mediation in Civil
and Commercial Matters.
B
Voluntary
Nature of ADR Processes
(1)
An
Overview
3.03
The Commission considers that if mediation and conciliation are to
become integral processes in the civil justice system, they must be approached
on a voluntary basis. Voluntariness is exercised at each
moment a party chooses to remain at the table, and is best validated by the
approach that any party may withdraw from the process at any time they choose.
Without this essential principle of voluntariness other underlying principles
of ADR, notably, party empowerment, flexibility, and confidentiality cannot ensue.
3.04
The principle of voluntariness is, and has always been, fundamental to
ADR processes. It has been included in various pieces of Irish legislation
providing for mediation. For example, section 55(3) of the Health and Social
Care Professionals Act 2005 states
that “No attempt may be made to resolve a complaint by mediation or other
informal means without the consent of the complainant and the registrant
against whom the complaint was made.”[238]
3.05
From the outset, parties must be free to voluntarily choose the form of
dispute resolution they wish to pursue. They must not be forced into mediation,
for example, simply because they cannot afford another option.[239]
As in many other settings, parties to a dispute should be educated on the full
spectrum of ADR processes which are available to them to resolve their dispute.[240]
3.06
As ADR develops in this jurisdiction, a question has arisen as to
whether a more compulsory element should be introduced into ADR processes. One
reason for this is that experience suggests that there will always be a
difficulty for disputants ‘taking the first step’ towards ADR as this may be
perceived as a sign of weakness.[241]
3.07
In relation to mediation, those in favour of compulsion argue that
mediation has a good success rate; that it could be compulsory subject to an
opt-out, such as a court concluding that it is not appropriate in a particular
case, and that nothing is lost by attempting it.[242]
Furthermore, it is asserted that if a more compulsory form of mediation was
introduced, such a step would ensure that greater numbers of litigants were
compelled to experience ADR processes, thus, arguably speeding up the process
of public and practitioner education about ADR.[243]
3.08
The contrasting view is that compulsion conflicts with the essence of
mediation as a consensual process. Compelling parties into a process against
their wishes would only increase costs and delays and it has been suggested
that the rates of settlement in court-ordered mediation are much the same as
when mediation is entirely voluntary.[244]
3.09
The Commission considers that there is an important distinction to be
noted between mandatory attendance at an information session about ADR
processes or at a mediation session and mandatory participation in an
ADR process.
(2)
Forms
of Referral to Mediation or Conciliation
3.10
As with many aspects of ADR, the issue of “voluntary” or “compulsory” is
not really an “either, or” choice but rather a matter of a gradual spectrum
which depends on the form of referral. Four variations of referral can be
distinguished:
1. The parties themselves propose the idea for mediation or
conciliation as an option;
2. The court encourages the parties to consider mediation or
conciliation;
3. The court encourages the parties to consider mediation or
conciliation and warns of the possible imposition of cost sanctions for an
unreasonable refusal to consider ADR;
4. Access to court is denied, where mediation or conciliation
has not first being attempted. [245]
3.11
These variations can be represented graphically as follows.
|
|
|
|
|
|
|
.gif){kind=small}
.gif){kind=small}
Voluntary
Compulsory
3.12
On this spectrum, only in the case of variation 1 is there full voluntary
referral, while only in variation 4 is there complete mandatory referral.
Variation 2 is the most common form of referral in Ireland. Variation 3 puts
more pressure on the parties to consider attempting ADR. The cost implications
flowing from a failure to engage in ADR, especially where proposed by the
court, may be said to go somewhat further than merely encouraging the parties
to engage in the process but adds an element of compulsion.
3.13
In the following sections, various referral schemes operating in other
jurisdictions are examined. The purpose of this examination is to provide an
overview of the strengths and weaknesses of voluntary and compulsory schemes.
(3)
Party-Driven
Mediation
3.14
Parties to a dispute are often in the best position to determine which
dispute mechanism best meets their goals in achieving access to justice. As a
result, one party, perhaps on the advice of their solicitor, may suggest
mediation or conciliation prior to the commencement of litigation. The other
party is entirely free to accept or reject this invitation.
3.15
As previously noted, Section 15 of the Civil Liability and Courts Act
2004 provides that mediation can only be initiated at the request of one of
the parties to the action and not by the Court. Upon the request of one party,
a court may then direct that the parties meet to discuss and attempt to settle
the action in a ‘mediation conference’.[246]
3.16
If an element of compulsion is to be introduced into mediation or
conciliation, a possible option would be that parties could initiate the
process and compel the other party to attend either an ADR information session
or a mediation/conciliation session. A model for this can be found in British
Columbia’s Notice to Mediate initiative.
“The theory behind the notice to mediate approach is that
cases partially self-select, so that they are more likely to be ripe for
mediation. It is also a simple, inexpensive program that does not result in a
sudden boost in demand for mediators.”[247]
(a)
British
Columbia’s Notice to Mediate
3.17
In 1998 the British Columbia Attorney-General introduced the mandatory
Notice to Mediate. The Notice to Mediate is a process by which one party to an
action may compel all other parties in the action to mediate the matter(s) in
dispute. “Rather than a court encouraging or mandating participation in
mediation, a party who is presumably intimately familiar with the dispute and
who has assessed the timing and appropriateness of mediation, compels the
participation of the other parties in mediation.”[248]
3.18
The Notice to Mediate process was first introduced as a dispute
resolution option for motor vehicle actions and came into force in April 1998.[249]
From 1998 to 2002, the process was used in more than 6,000 actions. In approximately
74% of the actions mediated under the Notice, all issues were resolved. [250] An additional 10% of actions settled
after delivery of a Notice, but before the mediation session.[251]
3.19
The party who wishes to initiate mediation delivers a Notice to Mediate
to all other parties to the action. Within 10 days after the Notice to Mediate
has been delivered to all parties, the parties must jointly agree upon and appoint
a mediator. The mediation must occur within 60 days of the mediator's
appointment, unless all parties agree in writing to a later date. If the
parties themselves are unable to agree upon a mediator within 10 days, any
party may apply to a roster organisation designated by the Attorney General to
appoint the mediator. The British Columbia Mediator Roster Society maintains a
list of trained and experienced mediators who have agreed to subscribe to a
code of mediation conduct.[252] A
mediation is considered concluded when:
·
all issues are resolved, or
·
the mediator determines that the process will not be productive and so
advises the participants, or
·
the first mediation session is completed and there is no agreement to
continue.[253]
3.20
Similar schemes were introduced in 1999 and 2000, for residential
construction disputes[254] and all
civil, non-family, Supreme Court of British Columbia actions,[255]
respectively.
3.21
In 2007, a similar scheme was introduced on a pilot basis in family
disputes.[256] This
enables any party in a family dispute to require the other parties to attend a
single mediation session, no earlier than 90 days after the filing of the first
Statement of Defence in the proceeding, and no later than 90 days before the
trial date. Once the Notice to Mediate is issued, the party being served with
the notice must participate in mediation unless:
·
all parties have already had a mediation session on the issues in
dispute;
·
one party has a family restraining order or peace bond against another
party;
·
the mediator advises that mediation is not appropriate or would not be
productive;
·
the court orders that one party is exempt from participating in the
mediation process, because it would be impractical or unfair to require that
party to attend; or
·
the parties agree in writing that one party does not have to participate
in mediation, and the mediator confirms that in writing.[257]
3.22
Mediations held under a Notice to Mediate have the following
characteristics: privacy; voluntary settlement; no decision-making authority
invested in the mediator; no requirement to negotiate in good faith; no
requirement to use a specified mediation model; the delivery of a Statement of
Facts and Issues at least seven days before the mediation session; and the
delivery of a Fee Declaration setting out the fees for the mediation and the
agreement of the participants as to how the mediator’s fees will be apportioned.[258]
3.23
If a party refuses to attend a mediation, any party may file a
Declaration of Default with the court. In this situation the court may exercise
its discretion from a number of powers, including staying the action until the
mediation occurs and making an order of costs against the defaulting party.[259]
(b)
Summary
3.24
The Commission considers that parties should be encouraged to propose
mediation to the other side but should not have the power to compel an
unwilling party to mediation. The Commission also considers that the Court
plays a fundamental role in encouraging parties to attempt mediation in
appropriate cases and to limit the option of referring the dispute to mediation
to the parties themselves would overlook the important position of the Court to
encourage the uptake of ADR.
(4)
Court-Annexed
ADR Schemes
3.25
Several degrees of compulsion or encouragement to use ADR, notably
mediation, can be established in schemes of court-annexed ADR. These include:
· entirely
voluntary, with the court limiting its role to encouragement and the provision
of information and facilities;
· made
mandatory by a statutory or court rule for all cases in a defined class.
(a)
ADR is entirely voluntary, with the court limiting its
role to encouragement and the provision of information and facilities.
3.26
In this version of court-annexed ADR, mediation or conciliation is
encouraged by the Courts. However, parties are free to accept or reject the
Court’s recommendation to consider or attempt ADR without any threat of a
sanction, such as refusing costs to a party.
3.27
It can be argued that
this version of court-annexed ADR mirrors current arrangements in Ireland. This
is because cost sanctions have yet to be imposed for an unreasonable refusal to
consider or attempt ADR. The Irish Courts are increasingly encouraging
parties to a dispute to consider ADR where they think it is appropriate.[260]
For example, in Charlton v Kenny a
dispute over land ownership between neighbours, Harding Clark J
encouraged both sides to explore the possibility of mediation.[261]
The parties agreed to suspend legal proceedings and to engage in a mediated
intervention in an effort to resolve their dispute. The parties successfully
mediated the dispute after a 10-hour mediation process and arrived at a
mutually acceptable agreement.
3.28
However, there is
currently no voluntary mediation or conciliation pilot operating in conjunction
with any Court or the Courts Service. Parties may attempt mediation with
private mediators. Furthermore, no information sessions about ADR are offered
to or are available for disputants. The following sections explore some voluntary
mediation and conciliation schemes which have been established in other
jurisdictions.
(i)
Small Claims Mediation Pilot Schemes in England and
Wales
3.29
In 2006, the UK Department of Constitutional Affairs (DCA)[262]
published research reports into three small claims mediation pilot schemes at
Exeter, Manchester and Reading County Courts (the equivalent of the Circuit
Court in Ireland). Each pilot scheme used a slightly different model:
·
In Exeter, solicitors who were also qualified as mediators offered free
30 minute mediation appointments to litigants referred by District Judges.[263]
·
In Manchester, a full time salaried mediation officer was available in
court to give information and advice about mediation, and to provide free one
hour face-to-face mediations to small claims parties. After the start of the
pilot period he began to offer telephone mediation as well, which proved very
popular.[264]
·
The Reading pilot focused on giving advice and information about the
small claims process to unrepresented litigants, with a ‘by-product’ of
facilitating some settlement negotiations. The scheme has since been
discontinued.
3.30
The DCA concluded that the service offered at the Manchester pilot had
achieved a higher rate of settlement relative to the other court-based
mediation services (86%) and that parties who used the mediation service
expressed high levels of satisfaction with the service and the mediation
officer (93%).[265] The
research also highlighted that the mediator had independently developed
telephone mediations to address the needs of parties who were based a
considerable distance away from the Manchester area. The use of telephone
mediation to deal with cases without the need for a judicial hearing
significantly increased the take up by parties wishing to use the service. In
2007, it was reported that telephone mediations accounted for over 70% of all
mediation dealt with by the mediator.[266]
3.31
There were several ways for court users to gain access to the small
claims mediation service: self-referral, judicial referral, and external
referral, through for example, citizens advice bureaux.[267]
3.32
Under the pilot scheme, a leaflet explaining the small claims mediation
procedure was sent or given to all claimants issuing claims at the County
Court. It contained a tear-off reply slip allowing a party to state whether
they were interested in using the small claims mediation. This was also sent to
both parties when they were sent an allocation questionnaire. If one or both
parties completed the slip, it was attached to the issue documents and, after
allocation to the small claims track, the case was referred to the mediation officer.
In such cases the District Judge issued one of the following judicial
directions:
SC7 – “Upon all the parties having indicated they wish to
engage in mediation, it is directed that the case be referred to the Court
Mediator for the mediation to be arranged.”
SC8 – “Note for Court Staff. Some but not all parties have
indicated they wish to engage in mediation. Please notify the Court Mediator of
the case.”
3.33
If neither party completed the slip, the District Judge could refer the
case to mediation at the allocation stage by issuing the following judicial
direction:
SC9 – “The judge has considered your case is suitable for
mediation and you are therefore invited to use the free Small Claims Mediation
Service. The Court Mediator will be notified of your case.” [268]
3.34
If a case was referred to mediation and one or both parties declined,
the mediation officer placed a note on the court file indicating to the judge
that mediation had been offered but had not taken place. No further information
was provided to the judge.[269]
3.35
The success of the Manchester pilot scheme led to its introduction
across England and Wales during 2008.[270]
(ii)
Edinburgh Sheriff Court
3.36
The majority of litigation in Scotland is conducted in the Sheriff
Court. An in-court advice service was introduced at Edinburgh Sheriff Court in
1997, and a mediation service was formally linked with it in 1998. The in-court
advice service provides advice to unrepresented litigants involved in small
claims, summary cause, housing and debt cases. Since 2008, the Service is
available up to a threshold of £5,000.
3.37
Where the in-court adviser identifies a case, at any stage of the court
process, which may be suitable for mediation, that client is referred to the
mediation service. In many cases the adviser is able to refer them to the
mediation service before the court process even begins.[271]
The mediation project offered arms-length negotiation, as well as face-to-face
mediation; both procedures were used by approximately equal numbers of clients.[272]
3.38
The mediation pilot was examined in a 2002 report.[273]
Data was collected from the project’s client records; in addition, interviews
were held with project workers, sheriffs and sheriff court employees,
solicitors, representatives of advice agencies and mediation clients.
3.39
In the 9 month period that was examined, 151 cases were referred to the
mediation project. Of these, 99 were referred by the in-court advice project,
18 were referred by the mediation coordinator, 15 were referred by the Citizens
Advice Bureaux and 5 were referred by the Court Sheriff. The majority of cases
(16 out of 23) involved small claims litigants.[274]
More than half of parties referred agreed to take up mediation, but in only
half of these cases did the second party agree to mediate. Of the 151 cases
referred during the research period a settlement was successfully negotiated by
the mediation coordinator in 21 cases, and a mediated settlement was reached in
20 cases out of the 22 that went to mediation.[275]
3.40
Turning to the procedure used in the ongoing mediation service, a
mediation co-ordinator attends the relevant weekly Court hearing at which a
Sheriff may recommend mediation to litigants. It is not compulsory for the
parties to accept the recommendation, but the majority do. The Sheriff Clerk (a
court officer) then assigns dates for the mediation and for the next Court
hearing. These have been provided in advance by the co-ordinator. The mediation
co-ordinator then takes over the management of the case. If a settlement
agreement is reached at mediation, the mediation co-ordinator arranges for any
further Court proceedings to be dismissed in the absence of the parties.[276]
3.41
From September 2006 to August 2007, 98 cases were referred to the
mediation service.
Of those, 18 did not proceed to mediation. Reasons for this
include one party withdrawing from the process or the case being settled prior
to the mediation. Of the 68 cases that went through the mediation process, 53
cases (78%) were resolved. Mediations lasted an average of 1.8 hours.
The average time from referral by a Sheriff to a mediation meeting was 21 days.
The average time from referral to closing of the mediation file was 19.6 days.[277]
3.42
The Scottish Executive is the sole funder of the mediation service. In
the financial year 2006/2007 it provided £25,571 for the service.[278] This
allows for a part-time Mediation Co-ordinator (20 hours per week) but not for
payment of mediators. The Service is financially viable only because of the
willingness of volunteer mediators. The Scottish Courts Service provides
two purpose-built mediation rooms and the Mediation Co-ordinator works out of
the Citizens Advice Bureau office in the court building. [279]
3.43
Following on from the success of the Edinburgh Sheriff Court in-court
advice service, further in-court advice services were established in Aberdeen,
Airdrie, Dundee, Hamilton and Kilmarnock in 2002 and 2003.[280]
(iii)
The Netherlands
3.44
The Dutch civil justice system has a long-standing tradition of informal
resolution of civil disputes. More recently, the Netherlands has developed a
mediation project on a pilot basis, slowly expanding to incorporate a larger
number of courts. In court-annexed mediation in the Netherlands, mediation
sessions are coordinated by a non-judge coordinator. Parties choose a mediator
from the court’s register and mediations proceed at a specified date. As
mediation in the Netherlands is entirely voluntary, judges do not refer cases
to mediation, but are able to explain to parties the extent of their options
and the advantages of pursuing ADR.[281]
3.45
In 2000, the Netherlands introduced a project entitled Court-connected
Mediation in the Netherlands. Its aim was to examine whether a permanent
system of referral to mediation was justified within the judicial
infrastructure and how this could be organised most effectively. The project
was carried out in five district courts (Amsterdam, Arnhem, Assen, Utrecht and
Zwolle) and one court of appeal.
3.46
Various methods of referral were prepared and tested in the project:
·
Oral referral by the judge at the hearing;
·
Written referral on a selective or non-selective basis:
o Selective :
cases were chosen on the basis of file selection and parties were sent a
customised letter offering them mediation
o Non-selective :
parties were approached on the basis of a random sample and asked by letter to
consider mediation, including a simple self test in which they could assess the
advantages and disadvantages of mediation in their specific case compared with
litigation;
·
Self-referral: besides referral by a member of the judiciary, it was
also possible for the parties themselves to opt for mediation on their own
initiative.
3.47
In 2003, the Dutch Ministry of Justice published a report on the
project. The survey findings confirm that a permanent system of referral to
mediation within the judicial infrastructure was warranted.[282]
3.48
The research found that referral by means of a written invitation at an
early stage of the proceedings was more efficient than referral at the hearing.
This was because those who responded to a written proposal opted voluntarily
for mediation entirely of their own choice and were more committed to the
process.[283] In
addition, the dispute was still reasonably undeveloped and the positions of the
parties were therefore less entrenched.[284]
A specific case-related invitation with a self-assessment test
(person-oriented, with questions about personal motives) was found to have the
best chance of success, with acceptance rates of between 10% and 40%.[285]
3.49
In a separate study it was found that mediation could be successfully
used at any point in the life of a case. This indicated that there is no point
at which referral seems to yield significantly higher settlement rates.
Similarly, the study reported that no single case or group of cases settled
more easily than others through mediation.[286]
3.50
Since the conclusion of the evaluation, steps have been taken towards
the full implementation of a referral facility in all courts in the
Netherlands. Each court now has one or more mediation officers. The mediation
officer acts as adviser for all internal and external parties involved in
mediation. In addition, he or she plays an important role in monitoring the
quality of mediation. The mediation officer is therefore the liaison officer
for the judge in referring cases. The mediation officer also liaises with the
mediators. The duties of a mediation officer in referrals can be summarised as
follows: providing information to those concerned, submitting a list of
mediators from which the parties may choose, arranging the first appointment,
monitoring the progress of the mediation and ensuring that the financial and
administrative aspects are arranged.
3.51
In all Dutch courts judges have been provided with training to select
cases for referral to mediation. They learn how to investigate whether the
parties have a so-called success-predicting motivation that is likely to lead
to an effective and success-promising choice for mediation.[287]
3.52
In 2005, a Dutch judge cited a 61% settlement rate for court-annexed
mediation. She stated that almost 1,000 cases had been referred to mediation,
of which 89% had completed the terms of the mediated settlement within three
months. She stated that a typical case required an average of 6.3 hours of
mediation. She also suggested that 50% of civil cases could be settled via
mediation, reducing case backlogs and increasing the settlement capacity of
judges.[288]
(iv)
Slovenia
3.53
In 2001, the District Court in Ljubljana, which is the biggest court in
the Republic of Slovenia, launched a pilot programme for the reduction of court
backlogs. The programme introduced court-annexed mediation in civil cases and a
Department for Alternative Dispute Resolution (DADR) was established. In 2002,
a mediation programme was established for family law cases and since 2003 a
programme for commercial mediations is available. All the programmes are
voluntary and both parties must consent to mediation. The pilot programmes have
since become permanent features of the court system.
3.54
The main objectives of the court-annexed mediation programme were to:
·
to offer parties additional dispute resolution mechanisms and thus
increase access to justice;
·
to offer the possibility of faster and cheaper dispute resolution;
·
to allow the parties a greater influence on the procedure and the
contents of the dispute resolution.[289]
3.55
The DADR sends parties a brochure with information on the programmes
which are available along with a consent form. Where parties consent to
participate in mediation, DADR selects a mediator from the list of mediators
and appoints him or her to mediate the case. The DADR then summons the parties,
and the Court guarantees that, in civil disputes, the first mediation session
will be held within 3 months, in commercial disputes in 2 months, and in family
cases within 14 days of the receipt of all consents. Mediation sessions are
held in the court premises, and they involve 2 sessions which last for 1.5 hours
each.[290]
Cases resolved in mediation account for 5 to 6% of the total amount of
litigation.[291]
In 2007, the District Court carried out between 30 to 50 mediation sessions a week.
3.56
The mediators who participate in the mediation programmes include
Supreme, Higher and District Court judges as well as the Deputy Human Rights
Ombudsman. All carry out the mediations free of charge in addition to their
regular work. Retired judges and members of the legal profession also mediate
on a contract basis. To be included on the Court’s list of mediators, each
person must undergo specialised training in the field of ADR.[292]
(b)
ADR is made mandatory by a statutory or court rule for
all cases in a defined class
3.57
In situations where mediation is mandated, for
example, by a court or a statute, the principle of voluntariness remains
because even where participation in the process is required, continued
participation is not. Parties are free to withdraw from the process at any time
they choose.
(i)
Ontario Mandatory Mediation Program (OMMP)
3.58
At about the same time
as the Woolf Review was initiated in England and Wales, in the early
1990’s the government of Ontario commissioned a Civil Justice Review which
sought to enhance access to justice for litigants by attempting to stem the
increasing costs in the system, in addition to helping to end the huge backlog
in cases going before the courts.[293]
In 1995, the First Report of the Civil Justice Review in Ontario set out the
following ‘benchmarks’ for a civil justice system: fairness, affordability,
accessibility, timeliness, accountability, efficiency and cost-effectiveness
together with a streamlined process and administration.[294]
It likewise proposed that the concept of court-connected mediation be accepted
“in principle”.[295]
These mirror the Woolf Report principles.
3.59
The Ontario Civil Justice Review proposals were implemented by the 1999
Rules of Civil Procedure made under the Courts of Justice Act 1990.[296]
The Rules included the Civil Justice Review Committee recommendation “that
there be mandatory referral of all non-family cases to a three-hour mediation
session, to be held following the delivery of the first statement of defence,
with a provision for ‘opting out’ only upon leave of a Judge or Case Management
Master”[297]
who may grant an exemption order at their discretion.
3.60
The 1999 Rules of Civil Procedure introduced on a test basis a common
set of rules and procedures mandating mediation for case-managed, civil,
non-family actions in the Ontario Superior Court of Justice in Ottawa and
Toronto. Under the OMMP, cases are referred to a mediation session early in the
litigation process to give parties an opportunity to discuss the issues in
dispute.[298]
Of the cases referred in Toronto, there was a settlement rate of approximately
40%, with a further 17% resulting in partial settlement.[299]
3.61
In 2001, Ontario
established a pilot project for Toronto and the Ottawa regions to require early mandatory
mediation in 100% of case managed civil actions. This change led to
approximately 18,000 extra cases initiated per year in Toronto being placed
under case management and also subject to mandatory mediation.[300]
Members of the legal profession and the judiciary raised numerous concerns as
to the evident rising costs associated with the introduction of a new
procedural step requiring disputants to attempt mediation at an early stage in
the litigation.[301]
3.62
As a result, in 2004 a
practice direction[302] which outlined radical changes to the case management system directed
that the 100% rule would no longer apply but that “mediation will continue to
be mandatory. Parties are expected to conduct mediation at the earliest stage
in the proceeding at which it is likely to be effective, and in any
event, no later than 90 days after the action is set down for trial by any
party.” The explanation provided for abolishing early mandatory mediations in
Toronto provided by the practice note is as follows:
“The bench and bar are concerned about serious delays in the
civil justice system in Toronto. Waiting times to obtain dates for both
interlocutory motions and trials are unacceptably long and growing. Concern has
also been expressed about rising costs occasioned by the increasing number of
formal steps and appearances which must be undertaken (particularly at the
early stages) and the decreasing ability of counsel and parties to determine on
a case-by-case basis how and when to move their cases along.”
3.63
The practical effect of
this change was that not all cases were any longer automatically referred to
case management, rather only those which were complex enough to require it.
Thus parties were free to determine the timing of the mediation, but were
nonetheless expected to conduct it at some point before trial.
(ii)
Germany
3.64
The German Federal
Parliament has enacted a series of laws which provide for the establishment of
both voluntary and mandatory court-related ADR. [303]
Since 2000, all German states may (but do not have to) introduce mandatory court-connected
mediation for certain kinds of civil disputes as part of their Civil Procedure
Codes. These serve two primary goals, firstly, to promote the practice of
mediation as a dispute resolution method among lawyers and disputants and,
secondly, to reduce dramatically the case load at magistrate court level.[304] To qualify for mandatory mediation, the
disputes must fall into one of three categories. They must be either be:
·
financial disputes before the Magistrates Court up to a value of €750;
·
certain neighbourhood disputes; or
·
disputes where any alleged defamation has not occurred through the
media.
3.65
State parliaments in Germany may introduce legislate to require
participation in mediation in these cases as a prerequisite to initiating court
proceedings. The so-called “experimentation clause” aims to encourage
different models in the different Germans states with respect to ADR schemes.[305]
(iii)
New South Wales
3.66
The Civil Procedure
Act 2005 (NSW) permits the Supreme
Court at any stage of the proceedings to refer parties to mediation.[306] This power does not depend on the
consent of the parties nor is it the intention of the Court that mediation will
be ordered in all proceedings.[307] Initially there was a general
acceptance of the view adopted by Barrett J in Morrow v Chinadotcom Corp.[308] that there was no point in a mediation engaged
in by a reluctant party. In a frequently cited passage from Remuneration
Planning Corp Pty Ltd v Fitton[309] the NSW Supreme Court held, however,
“since the
power was conferred upon the Court, there have been a number of instances in
which mediation have succeeded, which have been ordered over opposition, or
consented to by the parties...it has become plain that that there are
circumstances in which parties insist on taking the stance that they will not
go to mediation, perhaps from a fear that to show willingness to do so may
appear a sign of weakness, yet engage in successful mediation when mediation is
ordered.”
(5)
Voluntary
Schemes v Compulsory Schemes &
the Impact of Costs Sanctions: England & Wales
3.67
In 2007, the Ministry of Justice for England and Wales published a
report entitled Twisting arms: court referred and court linked mediation
under judicial pressure.[310] This report evaluated two mediation programmes in
Central London County: a voluntary mediation scheme which had been operating in
the court since 1996 and an experiment in quasi-compulsory mediation which ran
in the court between April 2004 and March 2005.
3.68
Since 1998, the voluntary mediation scheme in central London operates on
the basis that information about the mediation scheme is sent to both parties
once a defence has been received by the court. This again emphasises the
importance of educating parties about the alternative processes which are
available to them for the resolution of their dispute. The decision as to
whether to use the scheme is entirely voluntary. If both parties agree to opt
for mediation, the court fee is £100 per party: this covers a 3 hour mediation
session in mediation rooms on the court premises which is held after the end of
normal court business.
3.69
The Automatic Referral to Mediation (ARM) pilot involved early random
allocation by the court to mediation of 100 defended cases per month[311]
with an opportunity to opt out. [312] Thus for the first time England had in
effect introduced a quasi-compulsory[313]
form of mediation by which cases were automatically referred to mediation.
Following any objection to mediation, the case was to be reviewed by a District
Court Judge who had the authority to impose cost sanctions under the Civil
Procedure Rules if he or she did not reasonably believe the rejection to be
objectively justified. The ARM pilot was inspired by the Ontario mandatory
mediation programme. Some of the main findings of the report are summarised
below.
(i)
Low Uptake in Voluntary Mediation Scheme without a
Threat of Costs Sanctions
3.70
Between 1996 and 1998, parties were being offered the opportunity to
mediate on a voluntary basis. Post-Woolf Civil Procedure Rules had not yet come
into effect so no sanction would be imposed against parties who refused to
mediate. The 2007 Report stated that in the immediate period after the end of
the successful pilot and the establishment of a permanent VOL mediation scheme
at Central London, demand for the scheme showed a modest increase up to about
103 cases in 2000, and then a fall in demand to 68 in 2001.[314]
3.71
However, following the landmark Court of Appeal decisions in Cowl v
Plymouth City Council[315]and Dunnett
v Railtrack plc[316] demand
began to rise steeply, so that in 2005 368 cases entered the scheme of which
333 were actually mediated during the year.[317]
It appears that, faced with the possibility of cost sanctions for an
unreasonable refusal to mediate, parties were more inclined to attempt
mediation.
3.72
.jpg)
Cases entering the VOL mediation scheme 1996-2005 in relation to key
policy milestones.[318]
3.73
As noted in the 2007 Report,
“It is reasonable to infer that this steep increase in the
number of cases entering the scheme can be largely attributed to judicial
policy as expressed in the Dunnett case. Evidently, the decision had the
desired effect in encouraging or frightening litigants and their lawyers into
experimenting with the VOL mediation scheme. Demand prior to Cowl and Dunnett
was certainly showing only a modest increase from a low base, and in 2001, the
demand was actually beginning to fall.”[319]
(ii)
Higher Uptake of Voluntary Mediation with Threat of
Cost Sanctions, but Lower Settlement Rates.
3.74
Despite the significant increase in the uptake of the VOL mediation
scheme, there has been a relatively steady decline in the success rate, in
terms of the number of cases settled at the end of the first or second
mediation attempt. In the period 1996–1998, the settlement rate was steady at
around 62%, but it fell to 44% in 2000 and to a low of 39% in 2003. In 2004 and
2005, the rate appeared to have recovered to 45% and 43%, respectively, but
since 1998, it has not been above 50%.[320]
3.75
|
|
.jpg)
Settlement rate 1996-2005 in VOL mediation scheme (Base = 1,348 mediated
cases).[321]
3.76
A possible explanation given in the report for the decreasing settlement
rate in the VOL scheme is the changed policy environment in which VOL
mediations have been taking place. “If judges have been directly pressing
parties into mediation, or if parties are unwillingly accepting opponents’
offers to mediate in order to avoid potential costs sanctions, this may be
having a depressing effect on the scheme’s settlement rate.”[322]
3.77
Evidence from evaluations of court-based mediation schemes in Exeter, Guildford
and Birmingham support this conclusion. In Birmingham, a purely voluntary
scheme enjoyed a 60% settlement rate during the period 1999-2004. [323] In Guildford, the settlement rate for
the voluntary scheme was 53% between 2003 and 2004.[324]
In the same court, some cases were selectively referred to mediation by the
judiciary and among those cases, the settlement rate at mediation was as high
as 75%. By contrast, in Exeter, where the judiciary exerted considerable
pressure to mediate, the settlement rate was about 40% and only 30% for cases
that had been judicially referred. The author of the evaluation suggests that
the explanation for the lower settlement rate at Exeter, as compared with
Guildford, might be an “over-enthusiasm for mediation” which led to cases being
referred that were more complex and, therefore, unlikely to settle at
time-limited mediations.[325]
3.78
The Commission concurs with the view that a policy of judicial pressure
to mediate, accompanied by the threat of sanctions, is capable of propelling
cases into mediation in a manner that is not necessarily particularly effective
in terms of settlement rates. It is possible that such pressure has drawn in
unwilling parties who have participated through fear of costs’ penalties rather
than a desire to negotiate toward settlement.[326]
The rate of settlements is important because unsettled mediations may actually
increase costs and lead to delays, something that mediation is intended to
reduce.
3.79
It is clear from the findings in the 2007 Report that a genuine
willingness to enter the process and motivation to settle is one of the most
important factors in determining outcome.[327]
It is evident to the Commission, therefore, that the voluntary nature of
mediation is vital to its success.
(iii)
Compulsory Mediation Not Entirely Successful
3.80
The broad figures from the ARM experiment suggest to the Commission that
quasi-compulsion in the London context has not been particularly successful.
The overall opt-out rate began at around 80% and, although there was some
reduction in the number of objections in the last third of the pilot,
nonetheless by the end of the pilot only a minority of cases had been mediated.
3.81
During the ARM pilot, 1,232 defended civil cases were randomly referred
to mediation, of which 82% were personal injury cases. By the end of the
evaluation (10 months after termination of the pilot), only 22% of ARM cases
had a mediation appointment booked and 172 cases (14%) of those originally
referred to mediation – had been mediated. There was a high rate of objection
to automatic referral throughout the pilot scheme. In 81% of cases where the
court received a reply, one or both parties had objected to the referral,
although after the first few months there was a slight decline in the number of
cases in which both parties objected.[328]
3.82
Of the cases actually mediated under the ARM pilot scheme, the
settlement rate over the course of the year followed a broadly downward trend,
from a high of 69% among cases referred in May 2004 to a low of just below 38%
for cases referred in March 2005. The average over the year was 53% with a
handful settling within 14 days of the mediation session. Where neither party
objected to mediation the settlement rate was 55%. Where both parties
originally objected to mediation, but were then persuaded to go ahead with
mediation, the settlement rate was lower at 48%. The majority of cases referred
to mediation under the ARM scheme concluded by means of an out-of- court
settlement, without ever going to mediation, although among those cases
involved in objections hearings, a higher proportion continued to trial.[329]
3.83
The most common reasons for objecting to mediation, given by both
defendants and claimants, were that:
·
the case would settle anyway;
·
that more evidence was needed;
·
that judgment was necessary;
·
that liability was in dispute, or that liability was not in dispute.[330]
3.84
The majority of case management conferences where a District Judge
sought to persuade objecting parties to change their minds did not result in
mediation bookings and tended to introduce delay into the processing of cases.[331]
3.85
In the Commission’s view the evidence from the ARM schemes suggests that
facilitation and encouragement together with selective and appropriate pressure
are likely to be more effective and possibly efficient than a blanket coercion
to mediate.
3.86
It is also worth noting
the views of mediators in the UK which were surveyed by Centre for Effective
Dispute Resolution (CEDR) in its most recent audit in 2007. CEDR found
that mediators strongly (67.5%) favoured the civil justice system taking a more
directive approach towards the promotion of mediation, but only 10.3% went so
far as to support a fully mandatory system. Lawyers also support change,
albeit less strongly - 56% favour a more directive approach (as compared to
only 41% in 2005), with 8% favouring a fully mandatory system. However,
mediators continued to be opposed to a Mediation Act (60% v 17% with 23%
undecided), a strength of feeling which has hardened since 2005 (when only 46%
were opposed, 23% in favour, and 31% undecided).[332]
(iv)
Willingness of Parties to Negotiate is Crucial to
Successful Mediation
3.87
In the 2007 Ministry of Justice Report on the ARMS scheme, mediators
thought that key factors contributing to ARM settlement were:
·
the willingness of the parties to negotiate and compromise;
·
the contribution of legal representatives
·
their own skill as mediators; and
·
administrative support from the court.[333]
3.88
The significance of the parties’ willingness to negotiate and compromise
as an explanation both for success and for failure in mediation sits
uncomfortably with the evident support shown by some mediation organisations
for experimenting with compulsory mediation.[334]
3.89
Interviewees who felt that they had been compelled to attend
unsuccessful mediations frequently expressed discontent about the ARM scheme,
arguing that bringing unwilling parties to the mediation table was
inappropriate and costly. In almost every interview with representatives involved
in unsettled mediations, the view was that the mediation had increased the
legal costs of the case, on average by around £1,000 to £2,000.[335]
Explanations for failure to settle ARM cases at mediation include:
·
the parties’ unwillingness to compromise having been pressed into
mediation;
·
lack of understanding by the legal representatives of the mediation
process;
·
there were also concerns about mediations occurring too early,
·
the influence of legal aid and other costs indemnities reducing pressure
to settle;
·
the constraint of 3-hour mediations; and
·
the uncomfortable facilities provided for mediation at the court.[336]
3.90
The research has, in the Commission’s view, shown that if mediation is
mandatory, parties will of course use it, especially if they face a penalty
when they bring a case to trial without having tried mediation first. Thus,
first effect of compulsory mediation is that it receives a higher uptake than
voluntary mediation. There second effect is, however, a declining success rate.
The Commission agrees with the view that if parties are forced to engage in
mediation, that does not in itself provide them with the right mindset to work
towards negotiated and mutually satisfactory settlements.[337]
(6)
Conclusion
3.91
It is evident to the Commission from the various schemes discussed that
voluntary court-annexed schemes are successful for the resolution of disputes,
particularly for small claims cases. Many of the schemes have evolved from
Court- driven initiatives as opposed to legislative initiatives.
3.92
The Commission provisionally recommends that, in civil claims
generally, courts should be permitted, either on their own motion
initiative or at the request of a party to such claims, to make an order
requiring the parties to consider resolving their differences by mediation or
conciliation.
3.93
A recurring theme in each of the voluntary schemes is the important role
which information and education plays in the successful uptake of the schemes.
In Manchester, Edinburgh, the Netherlands, and Slovenia, in-court advice on ADR
and the processes which are available to the parties have been the catalyst in
the development of the schemes.[338]
The Commission considers that, for ADR to develop as a workable dispute
resolution option within the court system in Ireland, it may be appropriate to
mandate that parties to a dispute attend an information session on ADR.
3.94
The Commission considers that a court-annexed scheme would make
engagement in the mediation process procedurally mandatory in that the Court
should have the power to recommend mediation and to impose cost sanctions if
the parties unreasonable refuse to consider attempting mediation.[339]
Such procedural requirements are consistent with the concept that court-annexed
mediation should remain a wholly consensual process.[340]
3.95
The Commission provisionally recommends that the participation of
parties in mediation should be voluntary and that the mediator should
play no advisory or evaluative role in the outcome of the process, but may
advise on or determine the process.
3.96
The Commission provisionally recommends the participation of parties
in conciliation should be voluntary and that the conciliator should not
have the authority to impose on the parties a solution to the dispute but may
make recommendations to the parties for the settlement of the dispute, which
the parties may or may not accept.
3.97
In the Commission’s view voluntary court-annexed schemes would be a
positive development in Ireland. As the uptake for purely voluntary mediations
is generally low however, judicial encouragement of mediation would be
necessary for the successful implementation of such a pilot.
3.98
The Commission provisionally recommends that a pilot Court-annexed
mediation scheme should be established in the District Court based on the
principles of the voluntary participation of the litigants.
C
Confidentiality
(1)
Protection
of Confidentiality: An Overview
3.99
As noted in the EU Green Paper on ADR “Confidentiality appears to be the
key to the success of ADR because it helps guarantee the frankness of the
parties and the sincerity of the communications exchanged in the course of the
procedure.”[341] The
primary reason for protecting confidentiality in ADR is to enhance trust both
in the neutral third party and in the ADR process itself. “The fundamental
principle has always been regarded as being that a mediation should be a safe
haven, where the parties benefit from the privacy it affords, as it gives them
the chance to behave in ways which they would not adopt if they were in any
sense ‘on the record’ in doing so.”[342]
3.100
Confidentiality operates on two levels. First the process should be
confidential as between the participants, preventing third party knowledge of
the dispute of any attempt to settle it, and also in terms of all matters
disclosed in the process. Secondly, matters discussed between one party and the
neutral third party in private sessions should be confidential between them and
may not be disclosed to any other party without express consent.[343]
During the debates on the Civil Liability and Courts Act 2004 it was
noted that “It is vital in mediation that the confidentiality of all parties is
respected, otherwise people will just be defensive and will stand their
ground.”[344]
3.101
One of the most common legal mechanisms used to ensure confidentiality
in mediation and conciliation is a confidentiality clause in an agreement made
prior to entering the process In addition to contractual protections of
confidentiality, the common law has also recognised to some extent the need to
protect the confidentiality of mediation and conciliation. Some protection for
confidentiality in mediation can also be found in, for example, section
15(5) of the Civil Liability and Courts Act 2004 which provides that the
notes of a chairman of a mediation conference and all communications during a
mediation conference or any records or other evidence shall be confidential.[345]
The Commission now turns to examine the different ways in which confidentiality
is currently protected.
(2)
Agreement
Guaranteeing Confidentiality
3.102
Standard agreements frequently contain confidentiality provisions and
have the benefit of eliminating uncertainty about the existence and scope of
confidentiality protections.[346] For
example, the Family Mediation Service Mediation Agreement states:
“It has been a precondition of the mediator assisting us that
the mediation sessions have been conducted without prejudice and that any
information disclosed by either of us in our negotiations with each other is
confidential.”[347]
3.103
When parties enter into such an agreement they are thus contractually
obliged to preserve the confidentiality of the process.
(3)
‘Without Prejudice’ Communications
3.104
Irish law provides for the concept of “without prejudice” negotiations,
which means that oral and written statements made on a “without prejudice”
basis during negotiations towards the settlement of a dispute are inadmissible
in subsequent court proceedings relating to the same subject matter. It is
fundamental to the operation of the “without prejudice” rule that
communications expressed to be “without prejudice” are made for the purposes of
settling the dispute, since the courts will not find the privilege to relate to
communications which have a different purpose.[348]
3.105
The “without prejudice” rule is founded upon the public policy of
encouraging litigants to settle their differences rather than litigate them to
a finish.[349] As Keane J
explained in Greencore Group plc v Murphy[350]
it is in the public interest that:
“Parties should be encouraged as far as possible to settle their
disputes without recourse to litigation and should not be discouraged by the
knowledge that anything that is said in the course of negotiations may be used
in the course of proceedings.”[351]
3.106
Similarly, in the English Court of Appeal decision in Cutts v Head,[352]
Oliver LJ stated that parties who are trying to settle their dispute:
“… should not be discouraged by the knowledge that anything
that is said in the course of such negotiations (and that includes … as much
the failure to reply to an offer as an actual reply) may be used to their
prejudice in the course of the proceedings. They should … be encouraged fully
and frankly to put their cards on the table …. The public policy justification,
in truth, essentially rests on the desirability of preventing statements or
offers made in the course of negotiations for settlement being brought before
the court of trial as admissions on the question of liability.”
3.107
In the Australian case of AWA Ltd v Daniels[353]
Rolfe J stated that mediation is somewhat analogous to “without prejudice”
discussions. Express or implied admissions made in the course of a mediation
cannot be disclosed.
3.108
In Instance v Denny Bros Printing[354]
the English Court of Appeal reinforced the “without prejudice” status of
mediation negotiations. The Court held that communications made in a mediation
which did not settle an earlier dispute extended to later litigation connected
with the same subject-matter.
(a)
Exceptions
to ‘Without Prejudice’ Privilege
3.109
There are a number of exceptions to the “without prejudice” privilege at
common law. The Commission now turns to the relevant guiding principles in this
area.
(i)
Unambiguous impropriety
3.110
In Unilever plc v Proctor & Gamble Co[355], Laddie J outlined
some circumstances where without prejudice negotiations, which would otherwise
be privileged, can be disclosed. The first is where the entitlement to
rely on the privilege may be treated as waived. Secondly a court may come
to the conclusion that the claim to without prejudice status is not bona
fide. Laddie J cited with approval the dicta of Hoffmann LJ in Forster
v Friedland[356]
that “whatever the parties may stipulate the rule covers only those communications
which are genuinely aimed at a settlement to avoid litigation.” Thirdly, Laddie
J stated that there are occasions where, even though the parties treated the
negotiations as being without prejudice, the Court refuses to allow the claimed
privilege where “the protection afforded by the rule had been unequivocally
abused.”
3.111
It was then noted that any further exceptions should not be encouraged,
particularly when an important ingredient of the Woolf civil justice reforms
were to encourage those who were in dispute to engage in frank discussions
before they resorted to litigation.[357]
(ii)
Threats
3.112
In Venture Investment Placement Ltd v Hall[358] the Court was faced with the question was whether
something said during mediation, alleged to amount to threats, could override
the confidentiality created by the mediation agreement. The English High Court
answered no, and it restrained Mr Hall from referring to or disclosing any part
of the discussion that took place during the mediation on the basis that any
such threat essentially involved a question of defamation.
(iii)
To prove the existence of a concluded agreement
3.113
If there is a dispute as to whether or not there has been a settlement,
it may be necessary to look to the detail of the mediation or negotiation to
determine the terms of that settlement.[359]
In Brown v Rice & Patel[360] the
plaintiff asserted that, during a mediation, the defendant had bound herself to
leave open defined settlement terms for acceptance until noon the following
day, and that he had accepted them before the deadline. The defendants both
denied that any such agreement had been duly concluded within the mediation.
3.114
The defendants argued that the court should not hear evidence as to
whether there was a concluded agreement because:
·
a form of overall mediation privilege exists to prevent such an
investigation;
·
the only exception to the without prejudice rule applicable to
mediations is the unambiguous impropriety rule;
·
the fact that the mediation agreement provided that no binding
settlement agreement could be reached unless in writing and signed removed the
court's power to investigate whether settlement had been reached; and
·
contractual mediation confidentiality prevented admissibility.
3.115
Having concluded that the conventional “without prejudice” rule applied
to the situation, the court held that
communications during the mediation process, which were to be construed as
“without prejudice”, could be admitted in evidence in order to determine
whether a binding settlement had been concluded.
3.116
The court admitted evidence of offers made at the mediation by each
side, including: content of a meeting at the mediation in which the deadline
was allegedly set; the mediator's own note about the offers; subsequent e-mail
correspondence between the mediator and the parties; and inter-party
correspondence about whether or not agreement had been reached. On that
evidence, the judge concluded that a settlement offer had been made but it was
incomplete as it did not deal with the manner of disposal of the proceedings.
The decision in the Brown case indicates that it is only in specified
and clear circumstances that the court will seek to examine the conduct of the
mediation and communications made during it. The Court recognised that those
exceptions to the without prejudice rule should be "kept within close
confines."[361]
(iv)
Evidence of Legal Rights.
3.117
Where settlement negotiation communications disclose evidence of legal
entitlement,[362] that
information is admissible as evidence both as between the parties[363]and
as between a party and a third party.[364]
This does not extend to evidence of waiver of a right, being restricted to
proof of existing rights, so that the veil remained intact in respect of an
alleged reaffirmation of liability that was otherwise statute barred.[365]
Evidence of a fact, for instance that someone had written and signed a
document, not related to the terms of the settlement are admissible.[366]
In Munt v Beasley[367] notes of
mediation proceedings were used as evidence to establish that a landlord had,
contrary, to the express terms of a lease included the use of a loft as part of
the tenancy.
(v)
Waiver
3.118
If a party refers to negotiation communications in the course of a
trial, this is deemed to be a waiver of the privilege. Assuming the other party
has not objected on the grounds of privilege to admissibility, they can rely on
anything in the communications which is in their favour.[368]
Whatever the circumstances, the reference must, however, be intentional. A mere
accidental reference or oversight may not be sufficient to pierce the veil of
confidentiality. Both parties can expressly consent to waive privilege.
Furthermore, once a party waives the privilege the other party is also free to
rely on that material in court.[369]
3.119
In Chantrey Vellacott v Convergence Group plc[370]
the claimants sought an order for their costs of a mediation which had failed
to settle the dispute. The parties agreed to waive privilege over the “without
prejudice” meeting in order to allow the Court to evaluate the details and
conduct of the mediation. The claimants were awarded their mediation costs
because the defendants had been so plainly intransigent and unrealistic at both
mediation and trial.
3.120
In Hall v Pertemps Group Ltd[371]
the court was asked to decide whether threats which occurred during a mediation
amounted to a waiver of the mediation privilege. The court held that it only
amounted to a waiver of the discrete issue as to whether or not threats were
made in the mediation or occurred subsequently and were made to a third party
and hence were not relevant to the action. Accordingly the privilege that
attached to the mediation process continued to apply and nothing that occurred
or was said during the mediation was admissible in court.
(vi)
Unreasonable Refusal to Mediate and Without Prejudice
Communications
3.121
In 1889 the English Court of Appeal held, in Walker v Wilshire[372] that “letters or conversations written or declared to be
“without prejudice” cannot be taken into consideration in determining whether
there is a good cause for depriving a successful litigant of costs.”
3.122
When arguing for costs in England and Wales, if a party wishes to refer
to correspondence on the basis that the other party has acted unreasonably it
is necessary to have marked it “without prejudice save as to costs.” This is
known as a Calderbank offer. In O'Neill v Ryanair (No 3)[373]
the High Court recognised the Calderbank letter procedure.
3.123
In Reed Executive plc v Reed Business Information Ltd.[374] the
English Court of Appeal considered whether it could compel the parties to
disclose the detail of “without prejudice” negotiations (or documents) in ADR
when dealing with the question of costs. The Court offered the Calderbank
letters approach and held that only correspondence which is either 'open' or marked
'without prejudice save as to costs' could be disclosed to the Court in the
absence of a waiver by both parties that “without prejudice” correspondence can
also be disclosed.
3.124
Giving the judgment of the Court Jacob LJ also confirmed that the court
will not hear evidence as to what happened at the mediation. He added:
"I do not regard such a conclusion as disastrous or
damaging from the point of view of encouraging ADR. Far from it. Everyone knows
the Calderbank rules. It is open to either side to make open or Calderbank
offers of ADR. These days there is no shame or sign of weakness in so doing.
The opposite party can respond to such offers, either openly or in Calderbank
form. If it does so and gives good reason(s) why it thinks ADR will not
serve a useful purpose, then that is one thing. If it fails to do so, then that
is a matter the court may consider relevant (not decisive, of course) in
exercising its discretion as to costs. The reasonableness or otherwise of going
to ADR may be fairly and squarely debated between the parties and, under the
Calderbank procedure, made available to the Court but only when it comes to
consider costs."[375]
(b)
Summary of Without Prejudice & Mediation
3.125
The Commission acknowledges that the words “without prejudice” cannot
bring down a complete veil over mediation communications. In Ryan v Connolly[376]
the Supreme Court recognised that it may be obliged to balance the interest in
disclosure against the public interest in encouraging settlements, (or ADR, the
Commission would add) in cases where the disclosure is sought not for the
purpose of holding an opponent to admissions made in the “without prejudice”
offer “but simply to demonstrate why a particular course had been taken”.[377]
The Commission considers that the appropriate balance is achieved if the law
indicates that a court should be slow, both because of the terms of a mediation
agreement and public policy factors, to hold that the without prejudice status
of material was lost, except in clear and unequivocal circumstances.
(4)
Distinct
Mediation Privilege
3.126
The Commission now turns to consider whether mediation should be granted
a distinct form of mediation privilege. In Cook v Carroll[378]
Gavan Duffy J. approved four criteria favoured by Dean Wigmore[379]
for the general purpose of conferring privilege on communications arising from
the confidential nature of the relationship between the communicants. According
to these criteria, privilege may be established where the court is satisfied that:
1.
the communication was confidential;
2.
confidentiality is essential to the satisfactory maintenance of the
relationship;
3.
the relationship is one the community deems necessary to foster;
and
4.
the likely harm caused by mandatory disclosure outweighs the benefit to
be gained in the instant case by it.[380]
3.127
Examples of categories of privilege include the absolute privileges over
confidential communications made by a parishioner to a priest (sacerdotal
privilege)[381], or
communications with a marriage guidance counsellor.[382]
3.128
The Code of Ethics of the Mediators Institute of Ireland notes that
“Unless the mediation is specifically given legal privilege under legislation
it is not privileged.”[383] It remains
to be resolved definitively whether a general privilege attaches to the whole
mediation process, including all communications passing within that process.
The Commission notes that section 114 of the Residential Tenancies Act 2004
provides for absolute privilege for mediators only for the purposes of the law
on defamation.
3.129
In the English case Brown v Rice and Patel,[384]
counsel for the defendant argued for the existence of a “mediation privilege”,
distinct from the “without prejudice” rule, under which (at least) a mediator
could not be required to appear as a witness or produce documents and under
which the parties could not waive the mediator's entitlement not to give
evidence in respect of the contents of mediation. It was argued that this
should build on a category of privilege in matrimonial cases, protecting
confidential communications made with a view to matrimonial conciliation.
3.130
The Court noted that the possible existence and desirability of a
distinct privilege attaching to the entire mediation process was dealt with in
Brown and Marriott ADR Principles and Practice.[385]
As already noted, the Court decided the case under the existing “without
prejudice” rule. Accordingly, it was not necessary for the Court to determine
the question of whether a distinct ‘mediation privilege’ existed.
3.131
It remains possible and thus a matter of concern that a mediator could
be called to give evidence in subsequent litigation between the parties.
Parties could attempt to extend confidentiality to the mediator by including a
contractual provision to that effect in the mediation agreement.
“A substantial and, to our knowledge, unquestioned line of
authority establishes that where a third party [whether official or unofficial,
professional or lay] receives information in confidence with a view to
conciliation the courts will not compel him to disclose what was said without
the parties’ agreement.”[386]
3.132
In its 2002 Green Paper on Alternative Dispute Resolution in Civil and
Commercial Law, the European Commission stated: "As a rule the third party
[the mediator] should not be able to be called as a witness…within the
framework of the same dispute if ADR has failed."[387]
This approach is being formalised in the United States as mediator privilege.
The Uniform Mediation Act provides: “A mediator may refuse to disclose a
mediation communication, and may prevent any other person from disclosing a
mediation communication of the mediator.”[388] As noted by the Court in Brown v Patel
“It may be in the future that the existence of a distinct mediation privilege
will require to be considered by either the legislature or the courts but that
is not something which arises [in this case].”[389]
(5)
Conclusion
3.133
Confidentiality in mediation refers to the ability of a party to prevent
the contents of the mediation from being used as evidence in subsequent legal
proceedings. In the Commission’s view this is important, not just from a legal
standpoint, but from a practical perspective. Candour by the parties can be
crucial to a successful mediation. Confidentiality is essential to the
mediation process because without it, parties would not be willing to make the
kind of concessions and admissions that lead to settlement.[390]
3.134
The importance of the legal status of confidentiality in mediation is
particularly pronounced because confidentiality is a fundamental expectation of
parties in agreeing to a mediation. In any list of the advantages that
mediation offers as a dispute-settlement procedure, confidentiality generally
features prominently.
3.135
The Commission notes that, to the extent that the matter has been
addressed in legislation in Ireland, confidentiality has not been given
sufficient recognition. For example, the Rules of the Superior Courts
(Commercial Proceedings) 2004 provide that:
“Without prejudice to any enactment or rule of law by virtue
of which documents or evidence are privileged from disclosure, to assist him in
deciding whether or not to make any order or give any direction,... a
Judge may direct the parties, or any of them, to provide information in respect
of the proceedings, including... particulars of any mediation, conciliation or
arbitration arrangements which may be available to the parties.”[391]
3.136
This provision indicates clearly that communications made during the
course of a mediation, conciliation or arbitration are not protected and that a
judge can request such communications.
3.137
By contrast, section 7 of the Judicial Separation and Family Law
Reform Act 1989, renders inadmissible in evidence in court any
communications (written or oral) between a spouse and a third party who is
assisting towards a reconciliation or agreement on the terms of separation,
where proceedings under the 1989 Act have been adjourned for that purpose. In
its 1994 Consultation Paper on Family Courts the Commission stated that:
“It is possible that the courts will extend privilege to
statements made in the course of mediation in other contexts. There is a strong
public interest in fostering mediation. However, it is doubtful whether such a
privilege could be regarded as absolute. There may, for example, be cases where
the protection of a child from a serious threat of injury would justify a court
in setting aside the privilege.”[392]
3.138
In its subsequent 1996 Report on Family Courts the Commission
recommended that “information arising during the course of mediation should, subject
to a number of exceptions, be inadmissible as evidence in any subsequent court
proceedings. Statutory provisions to this effect should be enacted.”[393]
3.139
The Commission provisionally recommends that the principle of
confidentiality of mediation and conciliation should be placed on a statutory
basis and invites submissions as to whether confidentiality in mediation should
be subject to a distinct form of privilege.
D
Self-Determination
3.140
ADR processes, such as mediation and conciliation, give disputants full
control over the outcome of the process which is not always possible in a
public, formal and adversarial justice system. Litigation effectively delegates
power and control of the resolution of the dispute to a third party and the
parties involved do not retain full control over the dispute. Some litigating
parties become relatively passive, disempowered and often disillusioned by the
entire process. As noted by the Lord Chief Justice of England and Wales:
“Once you are in the hands of professional litigants they
take charge of you, willy-nilly, and you find that you have embarked on a
course that has no turning back and the incidents of which you cannot even
understand. Mediation is not like that. You can always turn back and you have
explained to you precisely what is going on. You are in control of what is
happening to you.”[394]
3.141
Mediation and conciliation processes are based on the underlying concept
of party autonomy which permits the parties to retain virtually all of the
power over the resolution and outcome of their dispute. This principle is known
as self-determination.
(1)
An
Overview of Self Determination
3.142
The success of any mediation or conciliation is closely connected with
the parties’ ability to make voluntary, uncoerced, informed decisions.[395]
Defined in this way, self-determination is often said to be mediation’s “prime
directive.”[396] This may
be seen particularly in a family breakdown dispute where self-determination
provides parties with fairness and dignity at a time in their life when they
are feeling powerless and unacknowledged. In this way, the process respects the
disputants as human beings with the capacity to choose.[397]
3.143
Self determination is present where the following processes are offered:
·
the parties are at the centre of the process;
·
the parties are the principal actors and creators within the process;
·
the parties actively and directly participate in the communication and
negotiation;
·
the parties choose and control the substantive norms to guide their
decision-making;
·
the parties create the options for settlement; and
·
the parties control whether or not to settle.[398]
3.144
The self-determination principles is clearly applied in section 4.6 of
the Mediators Institute of Ireland’s Code of Ethics:
“The content and outcome of the mediation is the responsibility
of the parties. The parties can exercise their self-determination by their
choice of Mediator, content of process, participation in or withdrawal from
mediation and the outcome.”
3.145
The MII Code also states that “the Mediator must empower the parties to
make free and informed choices as to content and outcome. The Mediator is
responsible for being in charge of the process.”
(2)
Informed
Consent
3.146
In the Commission’s view, it has been correctly noted that “... the
principle of informed consent provides the structural framework through which
this value [of self-determination] is measured in mediation.”[399]
3.147
It is important that parties are free to make an informed decision about
the form of dispute resolution they wish to pursue. This must not, for example,
be forced into mediation, simply because they cannot afford any other option.[400]
In that respect, parties to a dispute must be informed on the full spectrum of
ADR processes available to them. At a minimum, the principle of informed
consent requires that parties be educated about the process before they consent
to participate in it; that their continued participation in the process should
be voluntary; and, that they understand and consent to the outcomes reached in
the process.[401]
3.148
The Commission notes that section 3.3 of the European Code of Conduct
for mediators advises mediators to give all parties adequate opportunity to be
involved in the mediation process and to ensure that all agreements are reached
through informed consent. Paragraphs 16 and 17 of the European Commission’s
2001 Recommendation on the principles for out-of-court bodies involved in the
consensual resolution of consumer disputes states that:
“(16) Before the parties agree to a suggested solution on how
to settle the dispute they should be allowed a reasonable amount of time to
consider the details and any possible conditions or terms.
(17) In order to ensure that procedures are fair and flexible
and that consumers have the opportunity to make a fully informed choice, they
must be given clear and understandable information in order that they can
reflect on whether to agree to a suggested solution, obtain advice if they wish
or to consider other options.”[402]
3.149
As noted in the European Commission’s 2002 Green Paper on ADR
“... the parties' agreement is the essential and, from a
certain standpoint, the most sensitive stage of the procedure.’ Indeed, care
must be taken to ensure that the agreement concluded is genuinely an agreement…
It would therefore appear that there is a need for a period of reflection
before the signing or a period of retraction after the signing of the
agreement.”[403]
(3)
Conclusion
3.150
Self-determination and
party autonomy are key features of mediation and conciliation which make them
distinct from, and therefore alternative to the litigation process. Empowering
parties to determine their own agreement to a dispute enhances access to
justice. The Commission emphasises, of course, that there are many cases in
which parties to a dispute will, for a multitude of personal and legal reasons,
wish to hand over control of the dispute to an arbitrator or a court. However,
mediation and conciliation provide an important element of control which should
also form an important part of a modern civil justice system.
3.151
The Commission believes
that in order for parties to exercise their right to self-determination, they
must be fully educated and informed about the ADR processes which are available
to them. Those engaged in facilitating ADR must see it as their duty to ensure
that parties to a dispute receive all necessary information which, in turn,
will result in the parties’ personal empowerment.
3.152
The Commission provisionally recommends that parties to
mediation or conciliation should be fully informed about the process by the
neutral and independent mediator or conciliator before they consent to
participate in it, that their continued participation in the process should be
voluntary, and that they understand and consent to the outcomes reached in the
process.
3.153
The Commission provisionally recommends that parties should be
encouraged to seek independent advice, legal or otherwise, before signing an
agreement entered into at conciliation or mediation.
E
Efficiency
3.154
In has been pointed out in Ireland that:
“… where a dispute appears as if it is about to result in
litigation, one of the questions at the back of a businessman’s or
businesswoman’s mind is whether he or she can afford it…The advantage of
mediation is that the parties involved can bring their issues to the mediator
relatively inexpensively.”[404]
3.155
This echoes previous comments internationally. For example, Lord Woolf
in his Review of the English Civil Justice system in the mid 1990’s noted:
“Where there exists an appropriate 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 had made use of
that mechanism.”[405]
3.156
In its 1997 Issues Paper on Alternative Dispute Resolution, the
South African Law Commission noted that the most common general complaint about
the justice system is that the cost of civil litigation is prohibitive.[406]
The South African Law Commission stated that:
“This prevents meaningful access to courts and even those
with access are often victims of delay. For most litigants, delay means added
expense and for many people justice delayed is justice denied. Delay combined
with the cost of litigation has put justice beyond the reach of the ordinary
citizen. The incomprehensibility and adversarial nature of the process with a
resulting lack of control furthermore leads to a sense of frustration and
disempowerment.”[407]
(1)
Cost
Efficiency
3.157
Mediation and conciliation provides an alternative to the costs of
litigation. Of course, mediation and conciliation do not come free of charge.
The expenses include the third party’s fee, the cost of preparatory work
undertaken and overheads for the mediation and conciliation itself. The fee and
overheads are usually shared between the parties. Each party bears its own
costs and expenses. In Commercial Court cases and in personal injury cases
respectively, mediation may be suggested or imposed by a Court during the
course of proceedings and refusal to participate or do so in good faith may
have negative cost consequences.
3.158
According to the English Centre for Effective Dispute Resolution (CEDR)
the commercial mediation profession could save British business in excess of £1
billion a year in wasted management time, damaged relationships, lost
productivity and legal fees.[408] Since
1990, CEDR suggests that the mediation profession has contributed savings of
£6.3 billion.
3.159
In Egan v Motor Services (Bath) Ltd[409]
the English Court of Appeal gave a very strong endorsement to the use of
mediation at an early stage in a case, particularly where litigation costs were
more likely to be disproportionate to the amount in dispute. In Egan, the
amount in dispute was only £6,000 but the parties between them had spent in the
region of £100,000 on the litigation, including the appeal. Ward LJ stated that
he regarded the parties as "completely cuckoo" to have engaged in
such expensive litigation with so little at stake. In support of mediation,
Ward LJ stated:
"The cost of... mediation would be paltry by comparison
with the costs that would mount from the moment of the issue of the claim. In
so many cases, and this is just another example of one, the best time to
mediate is before the litigation begins. It is not a sign of weakness to suggest
it. It is the hallmark of commonsense. Mediation is a perfectly proper adjunct
to litigation. The skills are now well developed. The results are astonishingly
good. Try it more often."
3.160
In the English Ministry of Justice’s 2007 review of the voluntary
mediation scheme in London, parties who had attended mediation were asked
whether they felt that the mediation had made any difference to their costs.
Overall, 38% of respondents said that the mediation had saved costs, while 29%
said that costs had been increased.[410]
There was a significant difference in perception between those respondents
whose cases had settled at mediation and those whose cases did not settle.
Almost two-thirds of those whose cases settled felt that they had saved costs
and 7% thought that mediation had increased their costs. Among those
respondents whose cases had not settled, 45% thought that their costs had
increased, 19% thought they had saved costs, and 28% thought that the mediation
had made no difference to their cost.[411]
3.161
In 2001, the UK Government made a pledge to use ADR to settle disputes
involving government departments wherever possible and where the other party
agrees to join in the process. In addition, government departments will insert
ADR clauses in their standard procurement contracts.[412]
In 2005, ADR was used in 336 cases with 241 leading to settlement, saving costs
estimated at £120.7m.[413] It is
worth noting that in Royal Bank of Scotland v Secretary of State for Defence[414]
the English High Court refused the Minister of Defence its costs in a
successful defence, because it had not used the 2001 ADR pledge.
3.162
The potential for cost savings through mediation appear to have support
from a number of reviews carried out internationally. The Singapore Mediation
Centre (SMC) indicates that up to April 2006 more than 1,000 cases have been
referred to the SMC. Of those mediated, about 75% were settled. The SMC
reported that the Singapore the Supreme Court has recorded savings of more than
$18 million and 2,832 court days up to April 2006. The figures provided by the
Singapore Supreme Court indicate, for example, that in a High Court case
involving two parties, it is not uncommon for parties to save as much as
$80,000 in total.[415]
3.163
In a study conducted at the end of 2002, of the 1,044 disputants who
mediated at the SMC and provided feedback, 84% reported costs savings, 88%
reported time savings and 94% would recommend the process to other persons in
the same conflict situation.[416] The
responses from 900 lawyers who represented their clients and provided feedback
was similar - 84% reported savings in costs, 83% reported savings in time and
97% of the lawyers indicated that they would recommend the process to others in
a similar situation. It is to be noted that even parties and lawyers who did
not reach a settlement reported time and cost savings.[417]
3.164
In the United States, the Florida State Agency Administrative Dispute
Resolution Pilot Project reported that more than $3 million in potential
savings had been realised through the successful mediation of 31 of 36
administrative disputes selected from five state agencies and one environmental
control district during 1998-99. Savings over anticipated litigation costs
reported by participants ranged from $2,250 to $700,000. Another $2.3 million
in potential savings was attributed to litigation costs already incurred in
cases later mediated through the project. The study suggested those costs could
have been reduced or eliminated if mediation had begun earlier. The project’s
premise was to “demonstrate through pilot case examples and through training
how mediation and facilitation may be integrated into the management and
budgeting of administrative litigation.” [418]
3.165
In 2007, the English the National Audit Office reported the cost of
litigation versus mediation in family breakdowns.[419]
In the period October 2004 to March 2006, some 29,000 people who were funded
through legal aid attempted to resolve their family dispute through mediation.
The average cost of legal aid in non-mediated cases was estimated at £1,682, compared
with £752 for mediated cases, representing an additional annual cost of £74
million.
3.166
It is important to note that the potential benefits of mediation and
conciliation noted must be balanced against the reality that mediation and
conciliation can also be seen as an additional layer on civil litigation where
it does not lead to a settlement and that every step along the way drives up
the costs of litigation. “There is truth to this assertion in cases where
mediation is undertaken for improper strategic purposes, rather than with the
intention of entering into good faith bargaining.”[420]
3.167
While the Commission acknowledges that, from the surveys discussed
above, mediation and conciliation can in a large number of cases lead to a
settlement, for a number of cases the reality is that if the case is not
settled using ADR, the final costs will actually be increased. This reality is
relevant to the Commission’s previous emphasis on the voluntary nature of ADR.
(2)
Time
Efficiency
3.168
In addition to the need to consider potential cost effectiveness,
another aspect of the efficiency of ADR is the length of time it takes to
resolve a dispute. “People with problems, like people with pains, want relief,
and they want it as quickly and inexpensively as possible.”[421]
Mediation and conciliation may lead to a faster settlement of a dispute than
going to court.
3.169
The Commission has already referred to the time savings involved in the
English Alder Hay group litigation which was dealt with by CEDR. In Ireland
similar cases have arisen. For example, in the Commercial Court (High Court),
on Monday 13 November 2006, Kelly J. admitted a claim by Irish folk group The Dubliners
Ltd v EMI Records (Ireland) Ltd., into the Commercial List of the High
Court. The Group had sued EMI over its promotion and selling of its CD Box Set.
The dispute concerned copyright over seven songs featured in the Box Set
collection. On the 14th November 2006, the case appeared again
before Kelly J. The Dubliners sought injunctions against EMI who proposed that
the dispute be referred to mediation. The case was adjourned for hearing to 21
November 2006, unless the parties agreed in the meantime to go to mediation. On
the 16th November 2006 the parties informed the Court that the case
had been settled following mediation. Kelly J. said that the case had
established a record for the Commercial Court in that it had been admitted into
the Commercial List, had gone to mediation on the following day and had been
settled two days later.
3.170
In England, the Centre for Effective Dispute Resolution has stated that
mediators reported that around 75% of their cases settled on the day, with
another 13% settling shortly after that giving an aggregate settlement rate of
88%.[422] This is
slightly lower than the aggregate 93% rate reported in the 2005 Audit, although
we noted at the time that that figure seemed surprisingly high compared to
previously published service providers’ rates that are generally in the 80-85%
range.[423] According
to the UK National Audit Office mediated cases in family disputes are quicker
to resolve, taking on average 110 days, compared with 435 days for non-mediated
cases.[424] Over 95%
of mediations were complete within nine months and all mediations were complete
within 12 months.[425] By
comparison, the average elapsed time between applying for other legal help for
family-related matters (predominantly cases relating to children, domestic
violence or financial provision) and the date of the final bill was 435 days,
or over 14 months. Only 70% of these cases were complete within 18 months.[426]
3.171
In the English Ministry of Justice 2007 assessment of the voluntary
mediation scheme in London, approximately 25% of the parties involved thought
that the mediation had made no difference to the time involved in dealing with
their dispute, 33% thought that the time had been increased, and 42% thought
that time had been saved.[427] 73% of
respondents who had settled their case thought that mediation had saved time,
while only 17% of those whose cases did not settle thought that mediation had
saved time. When cases did not settle at mediation. When cases did not settle
at mediation, 56% thought that mediation had increased time spent on the case.[428]
42% of the representatives of the parties said that mediation had saved time,
37% thought that mediation had increased time and 20% thought that the
mediation had made no difference to the amount of time that they had spent on
the case.[429]
3.172
Estimates of time saved as a result of mediation show a very wide range
with 28% of those responding estimating savings to be no more than 8 hours and
25% thinking that the saving had been 30 hours or more. 75% of those who
thought that they had spent extra time on the case estimated the additional
time spent to be no more than 1 day.[430]
3.173
In the United States, it has been claimed that the increasing use of ADR
has led to a significant decrease in the number of cases reaching trial since
the 1960’s. Approximately, 11% of all federal cases reached trial in 1962, but
less than 2% did in 2002. Over the same period the number of actual cases filed
in court has increased by 500%.[431]
(3)
Conclusion
3.174
In 2005, the then Minister for Justice stated:
“Mediation… is a model of dispute resolution which the
Government supports as a means of reducing costs for all parties and as a means
of reaching a speedier resolution to difficulties which may arise in the
ordinary course of human engagement.”[432]
3.175
In this respect, the Commission considers that while neither mediation
nor conciliation can be viewed as a simple solution to the inevitable delays
and costs involved in litigation, they may provide many parties with an
efficient mechanism for the resolution of disputes and access to justice.
3.176
The Commission provisionally recommends that any bodies responsible
for providing ADR processes, in particular mediation and conciliation, should
periodically review the procedures involved to ensure that the dispute is being
dealt with expeditiously and appropriately.
F
Flexibility
3.177
An important advantage of ADR is its flexibility in achieving consensual
and mutually satisfactory resolutions which are not available through
traditional adversarial litigation. The Commission has already noted that, in
the English Alder Hey case involving over 1,000 claims concerning organ
retention, it was possible through ADR for parents to receive an apology and
the promise of a permanent memorial to the children whose organs had been
retained by the hospital.[433]
(1)
Procedural
Flexibility
3.178
As noted in the
European Commission’s 2002 Green Paper on ADR:
“ADRs are
flexible, that is, in principle the parties are free to have recourse to ADRs,
to decide which organisation or person will be in charge of the proceedings, to
determine the procedure that will be followed, to decide whether to take part
in the proceedings in person or to be represented and, finally, to decide on
the outcome of the proceedings.”[434]
3.179
The ability of the
parties to select ADR professionals who are qualified to deal with the issues
that are specific to their dispute is a principal element of flexibility in
ADR. The ADR professional need not be from a legal background but may be an
expert in whatever area the dispute is about.
3.180
In addition, ADR offers
greater procedural flexibility than litigation. For example, the hearings conducted
by a neutral in mediation or conciliation may be held at any place and at any
time, subject to agreement. ADR processes also allow parties to apply their own
knowledge and creativity in the process, ensuring that their needs are met more
closely than the traditional litigation system is able to do. This in turn
promotes party empowerment.
(2)
Flexibility
of Outcome
3.181
Another feature of
flexibility which the Commission views positively is the variety of outcomes
available in ADR. In facilitative and advisory ADR processes, the agreement may
contain a wide range of novel outcomes which would not normally form part of a
court agreement and which may provide solutions that better suit each parties’
needs.
3.182
The New South Wales Law
Reform Commission has also recognised that mediation can provide a greater
range of remedies that those available though the courts including:
·
an apology;
·
an explanation;
·
the continuation of an
existing professional or business relationship perhaps on new terms; and
·
an agreement by one
party to do something without any existing legal obligation to do so.[435]
3.183
A court is more limited
in the forms of relief it can make. Courts are reluctant to make any form of
order which would require ongoing supervision. ADR processes can provide the
types of outcomes already discussed. As noted by the former Minister of
Justice, Equality and Law Reform:
“A mediator
can think outside the box and can arrive at solutions different from those that
can be arrived at by a court. For instance, I have witnessed mediations in
which arguments between employers and employees have resulted in a proposal
radically different from that which a court would make. Such a proposal might
include an extension of the person’s working life. No court could order that a
person’s retirement age be postponed but this kind of solution can be made from
outside the box by a mediator as a way of getting both sides to realise they
have common ground.” [436]
3.184
The Commission provisionally recommends that ADR mechanisms should
aim at preserving the flexibility of the process.
G
Neutrality & Impartiality
3.185
The principles of neutrality and impartiality are fundamental to the
success of ADR. Neutrality in the broadest sense of the term includes issues
such as a lack of interest in the outcome of the dispute, a lack of bias
towards one of the parties, a lack of prior knowledge of the dispute and/or the
parties, the absence of the mediator making a judgment about the parties and
their dispute, and the idea that the mediator will be fair and even-handed.[437]
Impartiality is said to refer to “an even-handedness, objectivity and fairness
towards the parties during the process.”[438]
3.186
Adopting a neutral stance, it is argued, helps mediators to establish
trust credibility, and respect. It is commonly thought that if a mediator is
unable to maintain a neutral stance, codes of ethics and standards of practice
require that he or she withdraw from the case. For example, the Mediators Institute
of Ireland Code of Ethics states that “The Mediator must act and be seen to act
in an impartial manner throughout the process of mediation. Impartiality means
freedom from favouritism, bias or prejudice. The Mediator must not take sides.”
Similarly, the European Code of Conduct for Mediators states that “The mediator
must not act, or, having started to do so, continue to act, before having
disclosed any circumstances that may, or may be seen to, affect his or her
independence or conflict of interests.”[439]
3.187
The Commission provisionally recommends that the requirement of
neutrality and impartiality be included in any general statutory formulation
that concerns mediation and conciliation.
H
Quality
and Transparency of Procedure
3.188
To the extent that mediation resolves a dispute which may otherwise have
been decided by litigation in court, the questions of the training quality and
accountability of mediators are crucial matters.[440]
Those who require to use ADR processes are entitled to expect that mediators
and conciliators involved in providing those processes are competent, have
adequate training and expertise, and that their services will be of a suitable
standard. Moreover, those who may be involved in referring cases to an ADR
process must be satisfied on this matter. The transparency of the ADR procedure
should also be guaranteed.
3.189
To ensure the quality of the ADR process information about the
procedure, including the costs involved, should be readily available to the
parties in simple terms so that they can access and retain it before submitting
a dispute.
3.190
The European Commission 2001 Recommendation on ADR in consumer disputes
states that information should be made available on: how the procedure will
operate, the types of disputes that can be dealt by it and any restrictions on
its operation; the rules governing any preliminary requirements that the
parties may have to meet, and other procedural rules, notably those concerning
the operation of the procedure and the languages in which the procedure will be
conducted; the cost, if any, to be borne by the parties; the timetable
applicable to the procedure, particularly with regard to the type of dispute in
question; any substantive rules that may be applicable (legal provisions,
industry best practice, considerations of equity, codes of conduct); the role
of the procedure in bringing about the resolution of a dispute; and the status
of any agreed solution for resolving the dispute.[441]
The Commission agrees that this type of information will lead to increased
confidence in the process.
3.191
As previously noted, the 2004 Code of Conduct for Mediators has
been made available on the European Commission’s website in order to promote
its use by practitioners. The Code does not have the force of law but in the
Commission’s view it is appropriate to consider whether the general content of
the Code should be given some statutory basis. The Commission dos not think it
is appropriate at this stage to make any recommendation on this issue.
3.192
The Commission invites submissions as to whether the European Code of
Conduct for Mediators should be given a statutory basis in Ireland, including
in the form of a Code of Practice.
I
European
Directive and Principles of Mediation
3.193
The Commission has already referred to the 2008 Directive on Certain
Aspects on Mediation in Civil and Commercial Matters.[442]
The objective of the 2008 Directive is to facilitate access to alternative
dispute resolution and to promote the amicable settlement of disputes by
encouraging the use of mediation and by ensuring a balanced relationship
between mediation and judicial proceedings.[443]
3.194
The 2008 Directive is based on the premise that, in order to promote the
use of mediation and ensure that parties having recourse to mediation can rely
on a predictable legal framework, it is necessary to introduce legislation
addressing, in particular, key aspects of civil procedure.[444]
The Directive states that such legislation should preserve the flexibility of
the mediation process and the autonomy of the parties. It should also ensure
that mediation is conducted in an effective, impartial and competent way.[445]
3.195
The 2008 Directive applies to mediation in cross border civil and
commercial disputes only, but it also states that “nothing should prevent
Member States from applying such provisions also to internal mediation
processes.”[446] The 2008
Directive does not apply to pre-contractual negotiation, to processes of
an adjudicatory nature such as certain judicial conciliation schemes, consumer
complaint schemes, arbitration and expert determination or to processes
administered by persons or bodies issuing a formal recommendation, whether or
not it is legally binding as to the resolution of the dispute.[447]
This allows Member States to preserve existing arrangements, such as the
mediation and conciliation services of the Labour Relations Commission.[448]
(1)
Voluntary
Nature of Mediation
3.196
The 2008 Directive defines mediation as:
“…a structured process, however named or referred to, whereby
two or more parties to a dispute attempt by themselves, on a voluntary basis,
to reach an agreement on the settlement of their dispute with the assistance of
a mediator.”[449]
3.197
This structured process may be initiated by the parties or suggested or
ordered by a court or prescribed by the law of a Member State.[450]
The 2008 Directive also states that “The mediation provided for in the
Directive should be a voluntary process in the sense that the parties are
themselves in charge of the process and may organise it as they wish and
terminate it at any time.”[451]
3.198
Article 5 (1) of the 2008 Directive states that:
“A court before which an action is brought may, when
appropriate and having regard to all the circumstances of the case, invite the
parties to use mediation in order to settle the dispute. The court may also
invite the parties to attend an information session on the use of mediation if
such sessions are held and are easily available.”
3.199
In this respect the 2008 Directive seeks to preserve the autonomy of the
parties and to avoid their being compelled to mediate. A court, who is in a
unique position to evaluate the situation, is given discretion to invite the
parties to use mediation or at least to attend an information session thereon,
which may prove useful in situations where it appears that the parties, have
not considered mediation. The Directive also notes that the courts should be
able to draw the parties' attention to the possibility of mediation whenever appropriate.[452]
While the 2008 Directive promotes voluntary referral to mediation it also
recognises that national legislation may introduce compulsory mediation or
provide for incentives or sanctions in relation to mediation.[453]
(2)
Confidentiality
3.200
The principle of confidentiality in the mediation process is a key
element of the 2008 Directive.[454] Article 7
of the 2008 Directive states:
“Given that mediation is intended to take place in a manner
which respects confidentiality, Member States shall ensure that, unless the
parties agree otherwise, neither mediators nor those involved in the
administration of the mediation process shall be compelled to give evidence in
civil and commercial judicial proceedings or arbitration regarding information
arising out of or in connection with a mediation process, except:
(a) where this is necessary for overriding considerations of
public policy of the Member State concerned, in particular, when required to
ensure the protection of the best interests of children or to prevent harm to
the physical or psychological integrity of a person; or
(b) where disclosure of the content of the agreement
resulting from mediation is necessary in order to implement or enforce that
agreement.[455]
3.201
Recital 7 states that nothing prevents Member States from enacting
stricter measures to protect the confidentiality of mediation.[456]
3.202
In the context of confidentiality the Commission notes that the United
States Uniform Mediation Act 2001 (UMA) provides greater detail in
relation to confidentiality and mediation and has attempted to clarify the
various confidentiality protections afforded by individual states in the United
States. No confidentiality statute that includes the UMA provision creates an
absolute confidentiality privilege. Section 4 (b) of the UMA states that:
“(1) A mediation party may refuse to
disclose, and may prevent any other person from disclosing, a mediation
communication.
(2) A mediator may refuse to disclose
a mediation communication, and may prevent any other person from disclosing a
mediation communication of the mediator.
(3) A non-party participant may
refuse to disclose, and may prevent any other person from disclosing, a
mediation communication of the non-party participant.
(c) Evidence or information that is otherwise
admissible or subject to discovery does not become inadmissible or protected
from discovery solely by reason of its disclosure or use in a mediation.”
3.203
The UMA also provides for exclusions from, waivers of and exceptions to
privilege. Exclusions include collective bargaining mediations, grievance
mediations under collective bargaining agreements, judicially conducted
settlement conferences, school student-to-student mediations and mediations
between youths in a juvenile correctional institution.[457]
Mediation parties may exclude a particular mediation from privilege protection
if they agree to do so, in a signed record, in advance of mediation.[458]
After mediation, a party may waive privilege in a record or orally at a
proceeding.[459]
3.204
The UMA also provides five separate exceptions to the privilege: public
records and meetings, threats and crimes, professional misconduct, child and
adult protection and agreements reached in mediation.[460]
The UMA includes a broad definition of communication, namely, “statements that
are made orally, through conduct, or in writing or other recorded activity.”
The protection provided is also similar to the attorney-client privilege
protection in that a mediator’s mental impressions and observations and work
product are considered communications for purposes of the privilege.[461]
(3)
Self
Determination
3.205
Returning to the 2008 Directive it also deals explicitly with the issue
of self-determination by stating that “The mediation provided for in this
Directive should be a voluntary process in the sense that the parties are
themselves in charge of the process and may organise it as they wish and
terminate it at any time.”[462] This
reflects the fundamental principle of self-determination and party-control in
mediation.
(4)
Efficiency
3.206
The 2008 Directive also
acknowledges that “Mediation can provide a cost-effective and quick
extrajudicial resolution of disputes in civil and commercial matters through
processes tailored to the needs of the parties.”[463]
3.207
The Commission notes that the European Commission’s 2001 Recommendation
of 4 April 2001 states that once a dispute has been submitted it should be
dealt with in the shortest possible time commensurate with the nature of the
dispute. The 2001 Recommendation also states that the body responsible for the
ADR procedure should periodically review its progress to ensure that the
parties' dispute is being dealt with expeditiously and appropriately.
(5)
Neutrality
& Impartiality of Mediators
3.208
The 2008 Directive does not specifically state that mediators must be
neutral and impartial. Nonetheless, one of the introductory recitals to the
Directive states that mediators should be made aware of the existence of the
European Code of Conduct for Mediators which does set out principles of
neutrality and impartiality.[464]
3.209
It is notable that the European Commission’s 2001 Recommendation on the
principles for out-of-court bodies involved in the consensual resolution of
consumer disputes states that impartiality is a fundamental principle of ADR,
in the following terms:
“Impartiality should be guaranteed by ensuring that those
responsible for the procedure:
(a) are appointed for a fixed term and shall not be liable to
be relieved from their duties without just cause;
(b) have no perceived or actual conflict of interest with
either party;
(c) provide information about their impartiality and
competence to both parties prior to the commencement of the procedure.”
(6)
Flexibility
3.210
The mechanisms should aim at preserving the flexibility of the mediation
process.[465]
(7)
Quality
& Transparency of Process
3.211
The 2008 Directive obliges Member States to encourage the training of
mediators and the development of, and adherence to, voluntary codes of conduct
and other effective quality control mechanisms concerning the provision of
mediation services.[466] These
mechanisms may include market-based solutions (that is non-statutory
arrangements) provided that they aim to preserve the flexibility of the
mediation process and the autonomy of the parties and to ensure that mediation
is conducted in an effective, impartial and competent way.
3.212
The 2008 Directive states that Member States should encourage the
provision of information to the general public on how to contact mediators and
organisations who provide mediation services. They should also encourage legal
practitioners to inform their clients of the possibility of mediation.[467]
The Directive also states that Member States must encourage the initial and
further training of mediators in order to ensure that the mediation is
conducted in an effective, impartial and competent way manner.[468]
(8)
Enforceability
of Mediated Agreements
3.213
The enforceability of outcomes is an important feature of dispute
resolution processes. A decision of a court is legally binding and is
enforceable on the parties to the dispute and enables the final resolution of a
dispute. Decisions made using arbitration are binding on disputants, but most
ADR processes, by contrast, do not produce legally binding outcomes.[469]
3.214
At present, parties who mediate in circumstances where they have not
commenced litigation are usually restricted to reducing the terms of any
settlement and the obligations flowing from it to a written agreement for
enforcement, breach of which obliges the injured party to commence legal
proceedings. The 2008 EC Directive obliges Member States to set up a mechanism
by which agreements resulting from mediation can be rendered enforceable if
both parties so request. Article
6 of the 2008 Directive states that
“Member States shall ensure that it is possible for the
parties, or for one of them with the explicit consent of the others, to request
that the content of a written agreement resulting from mediation be made
enforceable. The content of such an agreement shall be made enforceable unless,
in the case in question, either the content of that agreement is contrary to
the law of the Member State where the request is made or the law of that Member
State does not provide for its enforceability.”
3.215
Currently in Ireland, (with some exceptions) no formal means exist by
which mediated settlement agreements are enforceable, except those concluded
during court proceedings, such as family proceedings, which may be ruled by the
court.[470]
Although parties will in most cases voluntarily comply with the terms of an
agreement reached in mediation, a formally enforceable agreement can be
desirable for obligations, such as child maintenance, which require regular
payments over a fairly long period. This would enable parties to give an
agreement resulting from mediation a status similar to that of a judgment
without having to commence judicial proceedings.
3.216
Article 6(2) of the 2008 Directive states that:
“The content of the agreement may be made enforceable by a
court or other competent authority in a judgment or decision or in an authentic
instrument in accordance with the law of the Member State where the request is
made.”
3.217
The Commission provisionally recommends that a Court may enforce any
agreement reached at mediation or conciliation.
(9)
Limitation
Periods
3.218
Article 8 of the 2008 EC Directive addresses the effect of mediation on
limitation periods. It states that:
“Member States shall ensure that parties who choose mediation
in an attempt to settle a dispute are not subsequently prevented from
initiating judicial proceedings or arbitration in relation to that dispute by
the expiry of limitation or prescription periods during the mediation process.”
3.219
As with the rule on confidentiality, it can be argued that this
provision also indirectly promotes the use of mediation by ensuring that
parties’ access to justice is preserved should mediation not succeed.
3.220
The Commission invites submissions as to whether the parties in a
mediation or conciliation may agree in writing to suspend the running of any
limitation period.
J
Conclusion
3.221
The Commission
considers that the 2008 Directive serves as an important recognition at a
European level of the potential for mediation to improve access to justice. The
Commission considers that it would be useful to consider whether the provisions
of the Directive should be extended, as the Directive itself envisages, to
mediations in civil and commercial matters which do not have a cross-border
aspect but which are domestic disputes.
3.222
The Commission notes on
this matter that this may also be an issue in which the Department of
Enterprise, Trade and Employment may be minded to engage in a public
consultation process in the context of the implementation of the EC directive
which must occur by 2011. The Commission will ensure that in that event no
duplication of work will occur and will ensure there is appropriate liaison
with the Department.
3.223
The Commission invites submissions as to whether the 2008 EC
Directive on Certain Aspects on Mediation in Civil and Commercial Matters
should be applied to disputes that do not involve a cross-border element, that
is domestic disputes.
CHAPTER 4
Employment
Disputes & Industrial Relations: The ROle of adr
A
Introduction
4.01
Ireland has a
comprehensive set of statutory bodies which are responsible for the resolution
of employment grievances and disputes outside of the court system. ADR
processes such as facilitation, mediation, and conciliation play important
roles in the activities of most of these statutory agencies. Their integration
into the employment sector, as viable and efficient mechanisms for the
resolution of disputes and preservation of relationships, serves to illustrate
the potential which ADR provides in this area.
4.02
The Commission does not
propose to make any recommendations in this area, and the discussion is for the
purposes of indicating the suitability of ADR in a specific context. In Part B the Commission provides an
overview of the nature of employment disputes and the appropriateness of ADR in
the resolution of such disputes. In Part C the Commission discusses the role of
the Labour Relations Commission. In Part D the Commission explores the role of
mediation in the resolution of disputes at the Equality Tribunal. In Part E the
Commission outlines the functions of the Labour Court. In Part F the Commission
examines the role of the Employment Appeals Tribunal. In Part F the Commission
explores recent developments in employment law and
ADR.
B
Employment
Disputes: An Overview
4.03
In employment disputes,
an important distinction can be made between conflicts of interest and
conflicts of rights.
“Conflicts of interests are normally associated with
employment relations disputes between employers and employees over aspects of
pay and working conditions such as changes to reward systems or proposed
changes to the working environment. Conflicts of rights are more concerned with
alleged violations of legally enforceable employment rights.”[471]
4.04
Conflict, whether of
interests or of rights, is an inevitable part of everyday working life. It has
been noted that an important issue is the need to resolve any such dispute
quickly.
“When
a dispute arises in the workplace, it is in the interests of all parties to
resolve it as soon as possible. There is a window of opportunity for early
resolution. Delay increases the likelihood of positions becoming entrenched and
the dispute leading to formal processes, with significant financial costs to
both parties ….and a serious impact on employers and employees in terms of lost
time, stress and the likely breakdown of the employment relationship.”[472]
4.05
In Ireland in 2006,
7,350 working days were lost in 10 industrial disputes with approximately 1,200
workers involved.[473] Research conducted
by the Centre for Effective Dispute Resolution (CEDR) indicates that businesses
in the United Kingdom spend approximately £277,000 in time and fees on a
typical employment dispute. Of this total figure £72,000 is spent on management
time in tackling the dispute. CEDR suggests that if the parties mediated the
dispute at the earliest stage possible, costs would be greatly reduced to
approximately £9,000.[474]
4.06
In addition to the possible financial savings which can be achieved by
mediation and conciliation, more importantly, they can provide a safe and
confidential environment for the parties to focus on preserving their
relationship. Employment disputes grow out of relationships and the parties to
an employment dispute often both wish to have the trust and confidence in their
relationship restored and enhanced. Emotions, such as anger, frustration,
embarrassment and regret, can cause the parties to become entrenched in their
positions if these are not expressed and explored. This is particularly true
when disputes enter the adversarial system and the focus is on legal rights as
opposed to underlying interests and emotions.[475] Furthermore, ADR can encourage parties
to consider novel remedies such as training, job modification, letters of
reference, changes in
organisational structure, or letters of apology.
4.07
The statutory bodies responsible for the resolution of employment
disputes in this jurisdiction, such as the Labour Relations Commission, also
emphasise that employers must ensure that they put in place internal mechanisms
for the resolution of any grievances which arise. “It is in the interest of
all, the employer and worker, and also the State, to provide an efficient,
effective, fair and respected procedure to resolve those disputes.”[476] The Labour
Relations Commission recommends that the parties to an industrial dispute
should only resort to the Commission's services when local procedures have been
exhausted and when every effort has been made to resolve the issue in dispute
within the undertaking concerned.[477]
4.08
The importance for employers of implementing and observing appropriate
grievance policies has been highlighted in a number of decisions. In The
Health Board v BC and the Labour Court[478]
the High Court quoted part of a determination of the Labour Court:
“The adoption of a Code of Practice, the adoption of a policy
statement on the prevention of sexual harassment, the existence of guidelines
as to how all staff should behave, and the establishment of clear grievance
procedures, all constitute the kind of ‘reasonable steps’ which employers
should adopt and which will be accepted by the Court as evidence of the
employer's bona fides in this type of dispute.”
4.09
ADR processes, specifically mediation and conciliation, by their
voluntary and confidential nature, have a significant role to play in the
resolution of employment disputes within an organisation. As noted by Stewart:
“There is no reason why employers should not insert mediation
or general ADR clauses into employment contracts with a view to settling
disputes with their employees. Although an employee cannot be forced to mediate
where a statutory remedy is available, for instance, where a dispute over equal
pay arises, in some cases the desire to resolve the matter privately and
without undue antagonism being created between the parties makes mediation
attractive.”[479]
4.10
The benefits of incorporating ADR processes into an organisation’s
internal grievance and disciplinary procedures include transparency, flexibility,
confidentiality and efficiency. ADR can also offer greater sensitivity to the
needs of the particular business and their employees, especially in highly
sensitive and personal disputes such as sexual harassment claims. Moreover,
voluntary solutions can build greater commitment and self-reliance between the
disputants to their relationship.[480] The Commission notes that mediation has also been developed by
some employers to resolve personal injuries claims.[481]
4.11
Where internal ADR mechanisms fail to resolve the dispute, employers and
employees have a comprehensive set of statutory bodies which are available to
assist them in the resolution of the dispute. In the following sections, the
Commission provides an overview of these statutory bodies and the role which
ADR processes plays in resolving employment disputes.
C
Labour
Relations Commission
4.12
The Labour Relations
Commission was an agency established by the Industrial Relations Act 1990[482]
to promote effective resolution of workplace disputes as well as stable,
high quality employment relations.[483]
As noted by Meenan, “One of the main reasons for its establishment was to
enhance the appellate function of the Labour Court which has hearing too many
matters that could and should have been resolved at a lower level or between
the parties themselves.”[484]
4.13
The Labour Relations Commission “… has placed itself at the centre of dispute resolution in Irish
industrial relations and has consistently evolved to meet the needs of its
major clients – Government, employer bodies, trade unions and employees”[485]
by providing a
comprehensive range of industrial relations services including an advisory
advice, conciliation and mediation services and a rights commission service.[486] According
to Kieran Mulvey, Chief Executive of the Labour Relations Commission “Ireland
is internationally acknowledged as the leading benchmarker on both dispute
resolution and employment law by the International Labour Organisation and the
European Union.”[487]
(1)
Conciliation
Service
4.14
The Labour Relations
Commission describes conciliation as “a voluntary mediation process” and the
process can be described as “a facilitated search for agreement between
disputing parties.”[488] The
aim of conciliation is “to bring about a timely and effective settlement of
industrial disputes without resort to strikes or lockouts, and to hasten the
termination of work stoppages or industrial action where these have occurred.”[489]
The Conciliation Service remains the primary industrial dispute resolution
service in the State in terms of numbers of industrial disputes handled[490]
and “... for many, it constitutes the identity of the organisation.”[491]
4.15
The Conciliation Service is available free of charge to almost all
employees and employers with the exceptions of certain persons employed
"by or under the State" such as the Defence Forces, the Gardaí, and
teachers who have their own Conciliation and Arbitration Schemes.[492]
Conciliation is voluntary and non-binding and there are only two possible
outcomes, namely, settlement or disagreement.
4.16
The process of
conciliation usually begins when one or both disputing parties contact the
Commission requesting assistance with their industrial relations dispute.
Alternatively, it can be offered by the Commission as a helpful
initiative in a ‘stand-off’ situation where no formal request for conciliation
has been made.[493] Arrangements
for conciliation meetings are finalised only when both parties confirm their
willingness to participate in the process.
4.17
Conciliation involves a
series of meetings that usually take place on the same day. The process starts
with the Industrial Relations Officer (IRO)[494]
chairing a joint meeting of the parties representing the employees and the
employer. The IRO then meets the parties separately. The first meeting enables
the IRO to hear the parties’ assessment of the dispute. Subsequent meetings
explore the possibilities for a settlement. The IRO must treat as confidential
all information received during the course of conciliation.[495]
They will not disclose this information to any other party unless expressly
permitted to do so.[496]
4.18
The Commission never
imposes an outcome on the parties. Writing in 1947, the then Chairman of
the Labour Court identified the role of a conciliator as that of “an
experienced neutral who has no power but to act as a friendly chairman and go
between.”[497] His
description of the role, which mirrors that of a mediator, is no longer
applicable to the modern advisory role as “the conciliator is now expected to
be a vigorous and pro-active agent in identifying options for the resolution of
disputes.”[498]
4.19
The IRO may make
proposals for settlement to the parties where they fail to reach a mutually
acceptable agreement between themselves but does not impose a proposal on the
parties. The IRO may also adjourn the proceedings to allow the parties consider
their positions. The parties retain control over the outcome of the
conciliation at all times as they may choose to accept or reject any proposals
recommended by the IRO. Where the process ends in continuing disagreement, the
parties have the option of referring the dispute to the Labour Court for
recommendation.
Case Example: Conciliation Service
A union made a claim for a
member wage increase from a company. The claim was rejected as it was in breach
of the National Wage Agreement. The company proposed a gain-sharing arrangement
with the union on the basis of certain changes in working practices. However,
local discussion on the proposal broke down. There was disagreement on the
amount of savings the company would make from the new arrangements. The
Conciliation Service of the LRC was approached and a mediator was appointed.
The mediator or IRO took part in the discussions between the union and company
in an impartial and independent way. First the IRO listened to both parties’
assessment of the situation. Then individual meetings were held. Once the IRO
understood both positions, separate and joint discussions were held. With the
objective help of the IRO a mutually acceptable agreement regarding new work
practices was reached. These new practices were put in place and a satisfactory
gain sharing agreement was established.[499]
4.20
In 2006, the
Conciliation Service Division chaired 1,959 conciliation conferences and
secured a settlement in 81% of all cases referred to it.[500]
Where no resolution of a dispute is possible at conciliation, the Service
endeavours to secure the agreement of the parties to proceed to the Labour
Court for investigation and recommendation.[501]
4.21
In 2007, the Labour Relations Commission carried out a client survey to
determine satisfaction levels in relation to the conciliation service.[502] The
clients interviewed for the survey came from the private and public sectors,
Government Departments, the Labour Court, representative bodies - such as trade
unions and employer organisations - as well as selected individuals with key
experience of restructuring in Irish based enterprises.
4.22
Among the most favourable responses, clients referred to its ‘huge
success rate’ and they viewed conciliation as a ‘well established and robust
process’. The skills of the conciliation officers were commented upon
favourably, such as their ability to ‘bang heads’, forcing parties ‘to face
realities’, and their ‘capability to suggest solutions’. They were seen as
impartial ‘in the main’; they allow the parties to have a handle on the
outcomes; and provided a ‘rapid response when needed.’[503]
4.23
As to negative responses some clients indicated that access and process
can be slow, and that there was at times an ‘insufficient appreciation’ of
sectoral conditions.[504] The survey
also demonstrated that the extent of the Commission’s services and expertise
may not be fully understood by clients and potential clients.[505]
In its Strategic Objectives 2008 – 2010, the Labour Relations Commission
has recognised that a “client’s experience of conciliation can be enhanced
through a deeper understanding, by the client, of the dynamics of the
conciliation process.”[506] The
Division plans to provide clients with a guide explaining the means employed by
the Service on the day of a conference and their expectations of clients in
approaching the conciliation process.
(2)
Advisory
Services Division
4.24
The Labour Relations Commission is statutorily charged with the
promotion of good employment relations practice across all Irish workplaces.[507]
“Key to this objective has been the delivery by the Advisory
Services Division of innovative developments through its interventions over the
past decade particularly in the area of the facilitation of dispute
resolution/avoidance/structures in private enterprises and public service
organisations.”[508]
4.25
The Division assists
employers and employees to build and maintain positive working relationships
and works with them to develop and implement on-going effective problem-solving
mechanisms. This assistance is confidential to the parties and free of charge.
Advisory Service
Case Study: Ballygowan/ ATGWU
As a result of a dispute in 2000 the Advisory Service was invited by
Ballygowan and ATGWU to carry out a review, to identify industrial relations
problems, and make appropriate recommendations to both parties. The review,
which was completed in 2001 recommended improvements in the following areas:
on-site relationships; communications; HR function in Ballygowan; role of
supervisors; and training. Following a progress review in December 2002 the
Advisory Service initiated a facilitation process which commenced in January
2003 and focused on establishing more harmonious relationships in Ballygowan
and dealing with outstanding industrial relations issues. The facilitation
process concluded successfully in December 2003. A key element in the
facilitation process was monitoring and review by the Advisory Service. The
final review of progress achieved since the Advisory Service became involved
with the parties took place in March 2004. The Advisory Service conducted the
survey in the Ballygowan premises on the morning of 30th March 2004 using its
Re-Solve technology. Overall the findings were extremely positive and
demonstrated the considerable transition which had taken place while cautioning
that continuing further vigilance and effort are required if improvements are
to continue. Survey findings included that: 73% of all participants believe Ballygowan
is a better place to work now than in 2000; 63% of all participants believe
communications are better now in Ballygowan; 69% of all participants believe
management/union relations are better; 57% of all participants believe
personnel issues are dealt with more effectively; 67% of all participants
believe training and development is better; 74% of all participants believe
that the Advisory Service contributed to the improvement; and 65% of all
participants believe that the facilitation
process contributed to the improvement.
4.26
The Advisory Service
delivers a broad range of services including: industrial relations audits,[509]
joint working parties,[510] preventive
services and advice,[511] and
frequent users initiative.[512]
4.27
Under the Industrial
Relations Act 1990 the Labour Relations Commission also has responsibility
to prepare and draw up Codes of Practice on industrial relations matters.[513]
They are drafted by the Advisory Service and are written in consultation with
employers, trade unions and other interested parties.[514]
The Labour Relations Commissions is required to submit the final draft of a
Code to the Minister for Enterprise, Trade and Employment who will make an
order declaring that the Code can become a Code of Practice under the 1990 Act.[515]
The Labour Relations Commission has developed 10 Codes of Practice under
this power.[516]
4.28
These Codes are
intended to be a guide for the use of employers, trade unions and others and to
highlight and encourage the adoption of good industrial relations practice and
are not legally binding. However, courts and industrial relations tribunals and
institutions may take them into account and deem them to be relevant as
admissible evidence in determining any proceedings before them.[517]
The
Enhanced Code of Practice on Voluntary Dispute Resolution[518] provides
a recognised framework for the processing of disputes arising in situations
where negotiating arrangements are not in place and where collective bargaining
fails to take place.
4.29
According to the 2007 client survey, there was limited awareness and
limited use by clients of the various codes of practice provided by the
Commission. “That said, they are seen as having ‘significant status’ as they
are jointly agreed official documents. They are seen as more important by trade
unions than employers, and are useful when serious difficulties arise.”[519]
(3)
Rights
Commissioner Services
4.30
The Office of Rights
Commissioner established in 1969 was transferred to the Labour Relations
Commission under the Industrial Relations Act 1990. Its primary
role is to investigate disputes, grievances and claims for small groups of
employees and individuals “…and the aim is provide people with access to
justice without undergoing an excessively legalistic process.”[520]
4.31
The Labour Relations
Commission describes the hearings as formal but not adversarial. It adds that “...
they have acquired, gradually, a more encompassing quasi-judicial role in
respect of employment rights due to the increasing complexity of employment
legislation and its prescriptive content.”[521]
The Chief Executive of the Labour Relations Commission has commented, however,
that “we do not want every rights commissioner hearing to become a court of
law. They are not, do not have to be and, as long as we are around, will not
become courts of law.”[522]
4.32
Where a party objects
to an investigation being carried out by a Rights Commissioner, the objection
must be made in writing to the Commissioner within 3 weeks of the notification
by post that a dispute has been referred.[523]
Where such an objection is made, the Rights Commissioner cannot investigate the
case. The applicant can instead request the Labour Court or, depending on the
relevant legislation, the Employment Appeals Tribunal to hear the case.[524]
4.33
Rights Commissioners
issue the findings of their investigations in the form of either decisions or
non-binding recommendations, depending on the legislation under which a case is
referred.[525] Where a
recommendation is issued, either party has 6 weeks to appeal that decision to
the Labour Court.[526] In all of
these cases, where the Rights Commissioner is asked to decide whether a person
has established a legal entitlement under the particular legislation it can be
appealed to the Employment Appeals Tribunal (EAT).
Case Example: Rights Commissioner Service
A supermarket checkout operator
brought a case of unfair dismissal against her employers. The situation arose
when security staff searched staff one night found one employee with a number
of grocery items in her possession and that she could produce a receipt for all
the items except one packet of cigarettes. The incident was reported to the
store manager. A meeting was held between the store manager, the employee and
the employee’s trade union representative. The employee was suspended with full
pay pending a meeting with her full-time union representative. After this
meeting she was dismissed on the grounds of gross misconduct. The dispute was
brought to the LRC. A Rights Commissioner gave a statement of his findings. He
outlined a number of discrepancies in the case against the employee. In
considering the evidence and events, the Rights Commissioner decided that
something untoward involving the employee did happen. He considered the
employee’s six-year unblemished record with the employer, and concluded that a
punishment less than outright dismissal would be the more correct action to
take. The Rights Commissioner recommended the employee be given unpaid
suspension time and then reinstated in her job.
4.34
In 2006, there were
7,000 referrals to the Rights Commissioners. These referrals dealt the payment
of wages, hours of work, unfair dismissals or more general industrial relations
issues that they were unable to reconcile at a workplace level.[527]
In 2007, the number of cases referred to the Rights Commissioners
reached 9,000.[528]
4.35
Clients surveyed in 2007 generally saw the Rights Commissioner Service
as providing a ‘very effective means of settling individual disputes especially
around legislation.’ The importance of this service has increased
‘substantially’ in the eyes of clients, and they see the service as having very
‘practical knowledge/skills’ because of their backgrounds. ‘Traditionally’, the
survey notes, the Rights Commissioners are ‘quite informal and user friendly.’[529]
4.36
The most significant criticism of the Service related to the delay in
obtaining hearings/recommendations. In an attempt to ease the backlog 14 Rights
Commissioners have been put in place in 2008. By 2010, the Service expects that
it should take no longer than 4 months from referral, to hearing, to
adjudication once the current backlog of cases have been heard.[530]
4.37
The National Social Partnership Agreement Towards 2016 document
envisages that, in the future all employment rights cases will be dealt with by
Rights Commissioners at first instance, with an appeal to either the EAT or the
Labour Court.[531] An exception
will be provided for unfair dismissal cases which will be dealt with by the EAT
if the parties so elect (as at present), and in such cases an appeal will lie
to the Circuit Court.[532] Given that the workload of the Rights Commissioners will
inevitably continue to grow it has also been recommended that consideration be
given to developing a Mediation Service within the Rights Commissioner
structure.[533]
(4)
Workplace
Mediation Service
4.38
In 2005, the Labour
Relations Commission decided to establish a Workplace Mediation Service on a
pilot basis “in response to a perceived demand for an informal and
confidential dispute resolution service, focusing on disputes involving
individuals or small groups of employees.”[534] The
service aims to provide a prompt, confidential and effective remedy to
workplace conflicts, disputes and disagreements. “The process of
mediation allows the exploration of issues in a very personal way and
facilitates constructive engagement on issues where the level of personal
emotional investment by the parties is quite high.”[535] The Workplace
Mediation Service operates under the Conciliation Services Division. A group of
8 mediators was initially appointed and, in 2006, 4 additional mediators were
assigned.
4.39
In 2006, the service
was actively engaged in 24 cases, although the number of contacts and enquiries
far exceeded this number.[536] 14 of
these cases were in the public sector, the remaining 10 in the private sector.
The main issues in cases requiring mediation involved interpersonal workplace
relationships, often between managers/supervisors and subordinates. Issues
around disciplinary and grievance procedures have also arisen together with
workplace bullying.[537] The
majority of cases relate to individuals, although 3 cases concerned group
issues generally centred on group dynamics, relationships and reporting
arrangements.[538]
4.40
According to the 2007 client survey conducted by the Labour Relations
Commission knowledge of the mediation service is not widespread, with usage
confined mainly to the public service. The Commission is committed to
developing the service and integrating it more fully into its suite of dispute
resolution services.[539] Some
concern was expressed in the survey that the service could divert resources and
focus from key areas of conciliation. The Labour Relations Commission
recognises that it must proceed with the development of the Workplace Mediation
Service in a pragmatic manner, aware of the need to ensure that all its
commitments under the 1990 Act are met.[540]
In regard to bullying and harassment cases, mediation is seen as a better
option than investigation and legal routes.[541]
4.41
The ‘menu of choices’ available at the Labour Relations Commission
attests to its well-established role in the resolution of industrial disputes,
whether collective or individual. The discussion in this section indicates
that, on an ongoing basis, the Labour Relations Commission recognises that its
conciliation services can be augmented by the development of further informal
mediation processes particularly in the resolution of individual grievances in
the workplace.
D
The
Equality Tribunal
4.42
The Equality Tribunal
was established under the Employment Equality Act 1998 to ensure
proper compliance with the increasingly complex body of equality legislation.[542]
Its core function is to
investigate and/or mediate complaints of unlawful discrimination and its
services are free of charge. The Tribunal has competence to act under 9
prohibited grounds of discrimination.[543] Its remit
was extended to cover discrimination outside of employment under the Equal
Status Act 2000.
(1)
Mediation
at the Equality Tribunal: An Overview
4.43
Section 78 of the Employment
Equality Act 1998 provides for the
establishment of a mediation service, staffed by Equality Mediation Officers. A
similar approach to mediation is also found in the Equal Status Act 2000.[544]
Neither the 1998 Act nor the 2000 Act define the process of mediation. However,
the Equality Tribunal Mediation Guidelines defines it as:
“…an internationally recognised process whereby a neutral and
impartial person facilitates the parties in a dispute to explore their area(s)
of dispute and, where possible, to assist them in reaching a mutually
acceptable agreement / settlement. The mediator empowers the parties to
negotiate their own agreement on a clear and informed basis, should each party
wish to do so. The process is voluntary and either party may terminate it at
any stage.”[545]
4.44
The Commission acknowledges that this reflects the Commission’s
definition of mediation.[546]
4.45
The 1998 and 2000 Acts
provide that if, at any time after a case has been referred to the Director of
the Tribunal it appears to the Director that the case is one which could be
resolved by mediation “the Director shall refer the case for mediation to an
equality mediation officer.”[547] Under the Employment
Equality Act 1998 the Labour Court, on making a similar judgement, may
refer a case to the Director for mediation by an equality mediation officer if
the Court decides not to attempt to resolve the case itself.[548]
The mediation option is available to the parties at any stage in the
investigation process right up to the day of the hearing. It has often happened
that a hearing is adjourned to give the parties an opportunity to resolve the
case by mediation.[549]
4.46
Mediation at the Equality Tribunal is completely voluntary. In adhering to the consensual nature
of mediation, the 1998 and 2000 Acts provide that mediation cannot take place
if either party objects.[550] Mediation
has been reported to be more efficient than an investigation before an equality
officer, on average 3 times quicker.[551]
An investigation is a quasi-judicial process carried out by a Tribunal Equality
Officer who will consider submissions from both parties before arranging a
joint hearing or hearings of the case to enable him/her to reach a decision in
the matter. Investigations are conducted by trained Equality Officers who have
extensive powers to enter premises and to obtain information to enable them to
conduct an investigation. Decisions are binding and are published.
4.47
The mediation process is informal and does not involve written
submissions. Mediation is conducted in private[552]
and agreements are not published, unlike Equality Officer investigations and
decisions. The parties are also given a “cooling off” period before being asked
to sign an agreement to ensure that both sides can give informed consent on
signing.[553] Mediators
at the Equality Tribunal are accredited by the Mediators Institute of Ireland.[554]
4.48
If the case is resolved
through mediation, the mediator writes up the terms of the settlement and the
agreement is signed by the complainant and the respondent. The agreement, when
signed, is legally binding and enforceable.[555]
If agreement is not reached and it appears to the mediator that the case cannot
be resolved by mediation a notice to that effect will be issued by the mediator
to both parties.[556]
4.49
If a complainant wishes
to apply for an Equality Officer investigation they must make an application to
the Director of the Equality Tribunal within 28 days of the non-resolution
notice. If the case returns to an Equality Officer for investigation
both sides are precluded from using information disclosed by the other side at mediation
without consent. In addition the mediator will not pass on any information from
mediation to an investigating equality officer.[557]
4.50
In 2006, 70% of
the 185 cases referred to mediation were disposed of through the mediation
process and did not need to be returned for investigation by an Equality
Officer.[558] In
approximately 90% of cases the mediation process was completed after one
mediation session – with either agreement being reached or the case being
deemed not resolvable. The flexibility of the agreements reached at the
mediations proved its success as an appropriate mechanism for the resolution of
discrimination claims.
(2)
Flexibility
of Agreements Reached at Mediation
4.51
It has been noted that mediation in the Equality Tribunal allows the
parties to reach a settlement which meets their particular needs.[559] Some of the
outcomes of the 65 Employment Equality Mediation Agreements reached in 2006
were:
·
an acknowledgement that
a job advertisement may have appeared discriminatory in nature;
·
an admission that
inappropriate procedures were employed in relation to a dismissal and an
apology for same given;
·
an acknowledgement from
both parties that they were willing to accept in good faith the other party’s
interpretation of the incident that had led to the complaint of
discrimination;
·
the provision of a
positive job reference;
·
an agreement by the
parties that all copies of papers relating to the complaint would be destroyed
as soon as possible after the signing of the agreement;
·
an offer by a
respondent to make a substantial payment to a charity of the complainants’
choice; and
·
an offer to an
unsuccessful job applicant of tuition in word processing skills in advance of
an upcoming word processing examination for a position within that organisation.[560]
4.52
Some of the outcomes of
the 19 Equal Status Mediation Agreements reached in 2006 were:
·
an agreement by a
college to waive any educational fees payable to the college in respect of the
complainant’s children who may be eligible to attend the college in the future;
·
an offer by a Housing
Authority to provide a larger property to the mother of a child with a
disability;
·
an invitation to a
complainant and his family to attend a pub/restaurant for a drink or lunch at
any time;
·
an apology from a hotel
to a person with a disability for not seeking clarification of her
accommodation needs when her booking was being made;
·
an acceptance that a
case of mistaken identity may have led to a refusal of service in a pub; and
·
an undertaking by a
provider of life insurance to review the wording of their application form to
ensure that potential clients are aware that HIV and hepatitis tests may be
required in certain circumstances where applicants have lived abroad for more
than a period of 6 months.[561]
(3)
Conclusion
4.53
The process of
mediation promoted and used by the Equality Tribunal mirrors the definition of
mediation which the Commission provided in Chapter 2. The success of mediation
at the Equality Tribunal is evident from the personalised, creative and
flexible settlement agreements which have been created by the parties
themselves and which would not have been available as remedies if the parties
had litigated the claims.
E
Labour
Court
4.54
The Labour Court was
established under the Industrial Relations Act 1946.[562]
Despite its title it is not a court of law in the traditional sense but
operates as an industrial relations tribunal. The Labour Court itself recommends
that a dispute should only be referred to the Court when all other efforts to
resolve a dispute have failed. The Labour Court was established to provide a
free, comprehensive service for the resolution of disputes about industrial
relations, equality, organisation of working time, national minimum wage,
part-time work and fixed-term work matters. [563]
(1)
Main
Functions of the Labour Court
4.55
In terms of industrial
relations disputes, the Labour Court’s main functions are to
·
Investigate trade disputes under the Industrial Relations Acts, 1949
to 2004;
·
Investigate, at the request of the Minister for Enterprise, Trade and
Employment, trade disputes affecting the public interest, or conduct an enquiry
into a trade dispute of special importance and report on its findings;
·
Hear appeals from Rights Commissioners' recommendations under the
Industrial Relations Acts; and
·
Establish Joint Labour Committees and decide on questions concerning
their operation register and vary and interpret employment agreements.
4.56
In terms of equality, the Labour Court’s main functions are to:
·
Hear appeals of decisions and recommendations under the Employment
Equality Act 1998 and the equality provisions of the Pensions Act 1990;
·
Hear appeals from non-discrimination notices and substantive notices
issued by the Equality Authority.
4.57
In terms of the organisation of working time the Labour Court’s main
functions are to:
·
Approve working time agreements under the Organisation of Working
Time Act 1997;
·
Hear appeals of Rights Commissioners' decisions under the Organisation
of Working Time Act 1997; and
·
Investigate complaints of the non-implementation of Rights
Commissioners' decisions under the Organisation of Working Time Act 1997.
4.58
In terms of the national minimum wage the Labour Court’s main functions
are to:
·
Hear appeals from Rights Commissioners' decisions under the National
Minimum Wage Act 2000; and
·
Investigate complaints of the non-implementation of Rights
Commissioners' decisions under the National Minimum Wage Act 2000 and
hear applications for exemption from the provisions of the National Minimum
Wage Act 2000.
4.59
In terms of part-time work the Labour Court’s main functions are to:
·
Approve collective agreements regarding casual part-time employees under
the Protection of Employees (Part-Time Work) Act 2001;
·
Hear appeals from Rights Commissioners' decisions under the Protection
of Employees (Part-Time Work) Act 2001;and
·
Investigate complaints of non-implementation of Rights Commissioners'
decisions under the Protection of Employees (Part-Time Work) Act 2001.
4.60
In terms of fixed-term work the Labour Court’s main functions are to
·
Hear appeals from Rights Commissioners' decisions under the Protection
of Employees (Fixed-Term Work) Act 2003;and
·
Investigate complaints of non-implementation of Rights Commissioners'
decisions under the Protection of Employees (Fixed-Term Work) Act 2003. [564]
4.61
There are a number of
referral methods in which a case can be heard in the Labour Court. These
include; referral by the Labour Relations Commission at the request of the
parties where they have failed to reach an agreement through conciliation;
referral directly by the Labour Relations Commission; Ministerial intervention
in a dispute resulting in a direct referral; appeal of the decision of a Rights
Commissioner; appeal of the decision of the Director of the Equality Tribunal;
and direct referral in cases of an advance acceptance of a recommendation where
a worker, or workers, in a trade dispute, or a trade union on his/her/their
behalf; or if all the parties agree in advance to accept the Labour Court’s
recommendation (the Court may give priority to the investigation of such
disputes), they can bring their case directly to the Labour Court.[565]
4.62
The Labour Court investigates disputes by requiring the parties to a
dispute to provide it with written submissions of their positions in relation
to the dispute, and, subsequently, by holding hearings which both parties
attend. The hearings are usually held in private, unless one of the parties requests
a public hearing. After the hearing the Labour Court will issue to the parties
its written recommendation as to how the dispute might be resolved.
4.63
In general, recommendations are non binding. Both sides are, however, expected to give
favourable consideration to the Court’s recommendations. Most recommendations
are thus implemented and this voluntary acceptance invests the Labour Court
with considerable moral authority. The Court’s determinations under the Employment
Equality Act 1998, Pensions Act 1990, Organisation of Working
Time 1997, National Minimum Wage Act 2000, Industrial Relations
(Amendment) Act 2001, Protection of Employees (Part- Time Work) 2001
and Protection of Employees (Fixed-Term Work) 2003 Act are legally
binding.
4.64
In 2007, the Labour
Court received 924 referrals, held 819 hearings, issued 549 recommendations (or
determinations or decisions or orders) and investigated 100 cases which were
settled at or after a hearing and made 11 Employment Regulation Orders.[566]
F
Employment
Appeals Tribunal
4.65
The Employment Appeals
Tribunal (EAT) was established under the Redundancy Payments Act 1967. Until 1977, it was known as the Redundancy Appeals
Tribunal. In 1977, under section 18 of the Unfair Dismissals Act 1977, its name was changed to the Employment Appeals
Tribunal.
4.66
The Tribunal is an independent body bound to “act judicially” and
was established to provide a speedy, fair, inexpensive and informal means for
individuals to seek remedies for alleged infringements of their statutory
rights. The Tribunal was
originally set up to adjudicate in disputes about redundancy between employees
and employers and between employees or employers and the Minister for
Enterprise, Trade and Employment or a Deciding Officer. The scope of its
functions has been greatly expanded over the years. The EAT now deals with cases
or claims involving unfair dismissal, constructive dismissal, redundancy,
minimum notice of termination of employment, terms of employment, holidays,
payment of wages and deductions from wages.[567]
While the Tribunal has no mediation role under its procedures, it does
encourage settlement between the parties where it sees that it might be
achieved.
4.67
The EAT sits in
divisions of three – a legally qualified Chair and a representative from the
employer and worker nominees appointed by the Minister. The EAT can, through
written Determinations, award compensation or direct a course of action that
the employer must follow in order to comply with the particular legislation
under which an employee has claimed they were denied their full entitlement.
4.68
EAT determinations can
be enforced through the Circuit Court if, after the appeal period has expired
(usually 6 weeks) the employer has refused to comply. The Circuit Court is
empowered, without taking evidence, to issue an order that will either uphold,
overturn or vary the determination. Either party to an EAT hearing may also
appeal the determination to the High Court on a point of law.
4.69
Cases can be referred
directly to the EAT, or on appeal, within 6 weeks of a Rights Commissioner
Recommendation. Unfair dismissal cases, either at first instance or on
appeal from recommendations of Rights Commissioners, account for 36% of the
annual total number of cases disposed of by the Tribunal, and account for
approximately 95% of the annual workload of the Tribunal in terms of time spent
at hearings.[568]
4.70
In 2006, the total
number of claims referred to the Tribunal either directly, or on appeal from
recommendations and decisions of the Rights’ Commissioner Service was 3,480 and
the Tribunal disposed of 3,169 claims and appeals. Adjudicating on unfair
dismissal cases continues to account for approximately 95% of the Tribunal’s
workload in terms of the time spent at hearings. The number of unfair dismissal
cases referred to the Tribunal in 2006 and the number disposed of was 1171.[569]
In 2006, the annual average waiting period to have a claim heard was 27 weeks
in Dublin, and 44 weeks in provincial areas at year’s end.[570]
The Tribunal awarded total compensation of €2,627,003 in 221 cases in
2006. The average compensation awarded by the Tribunal was €11,886.89.
4.71
In 2007, the EAT Procedures Revision Working Group was established with
the aim of improving the EAT’s procedures. The Report of the Working Group
discusses to what extent the Tribunal provides a process that is fair, speedy,
inexpensive and informal. The Report also discusses the extent to which EAT
procedures should be changed.[571] The Report of the Group suggested
that proceedings at the EAT have “moved very substantially from the more
informal inquisitorial model to a more long drawn out, over legalistic, adversarial,
costly and, especially from the perspective of employees and unions,
intimidating environment.”[572]
4.72
The Report of the Working Group recommended:
·
An interim process between the exchange of initial documentation and the
substantive hearing be established. This preliminary process, which should be
held in private, would be chaired by an experienced member of the Tribunal
(Vice Chair or Ordinary Member) and its purpose would be to confirm basic
factual information, to seek and identify the core issues between the parties,
to outline the practice, procedures and approach adopted at substantive
tribunal hearings and, in so far as it is the wish of the parties, to
facilitate a resolution by way of settlement between them.
·
In accordance with current informal practice in the EAT, the secretary
of the hearing would, immediately prior to the Hearing, inform the parties that
they may request time from the Tribunal to bilaterally reconcile their
differences. A reasonable amount of time may be allowed before the commencement
of the hearing to facilitate settlement.
·
The hearing would begin with the Chair explaining the process followed
by opening statements by or on behalf of both sides. The purpose of these
statements would be to identify the core issues of law and fact, to the extent
it was not already clear from the preliminary process stage.
·
The Tribunal should be given the power to issue consent determinations
on application by the parties to a settlement which has been reached. This
would give legal force to the terms of the settlement.[573]
G
Other
Developments in Ireland
(1)
Partnership
(a)
Social Partnership
4.73
Social partnership is a
process by which issues of social policy can be agreed between the Government
and the social partners. The
social partners include trade unions, employers, farming organisations and the
community and voluntary sector. The most recent social partnership agreement, Towards
2016, was agreed in 2006 and covers a 10 year period. All social
partnership agreements have included provisions for the orderly processing of
grievances and disputes.
(b)
National Centre for Partnership and Performance
4.74
The (NCPP) operates under the auspices of the
Department of the Taoiseach.[574] The Centre facilitates
organisational change, based on partnership, in both the private and public
sectors. The NCPP was established in 2001 and was placed on a statutory footing
under the National Economic and Social Development Office Act 2006 (NESDO). NESDO’s other constituent bodies are the
National Economic and Social Council (NESC) and the National Economic and
Social Forum (NESF).
4.75
Since its establishment
in 2001, the NCPP has developed a series of practical guidance and learning
materials to assist employers and employees in the public and private sectors
to understand and appreciate the benefits of a partnership-led approach to
implementing change and innovation in the workplace. The NCPP provides
information, research, advice and guidance materials to Irish public and
private-sector organisations interested in exploring or implementing workplace
change and innovation through partnership. Partnership in the workplace
includes:
•
formal collaborative arrangements between management and employees and unions
•
participative approaches to work and new work practices
•
formal collaborative arrangements between management and employees in
non-unionised organisations
•
informal arrangements to work together
•
direct and indirect employee involvement
•
high performance/ high commitment workplaces.[575]
(2)
National
Employment Rights Authority
4.76
The National Employment
Rights Authority (NERA) was established on a non-statutory basis in 2007 under
the Social Partnership Agreement Towards 2016.[576]
Three units dealing with employment rights, which were formerly within the
Department of Enterprise, Trade and Employment, have been subsumed into NERA.
These are the Employment Rights Information Unit, the Labour Inspectorate, and
the Prosecution and Enforcement Unit.
4.77
NERA aims to secure
compliance with employment rights legislation and to foster a culture of
compliance in Ireland through five main functions: information; inspection;
enforcement; prosecution; and the protection of young persons. It will be
established on a statutory footing with the enactment of the Employment Law
Compliance Bill 2008.[577]
H
Conclusion
4.78
In this Chapter, the Commission has outlined the broad range of ADR
processes, notably mediation and conciliation, which are available in the
employment area under the diverse range of statutory codes available to this
important aspect of Irish social policy. The Commission indicated at the
beginning of the Chapter that it did not propose to make any specific
recommendations in this area. Indeed, it is clear that, to the extent that the
complexities of the issues in this area bring continuous challenges to adapt
arrangements to growing demands, the various agencies involved in this area
have been proactive in this respect.
5
CHAPTER 5
Family
Disputes & ADR
A
Introduction
5.01
In this chapter the
Commission examines the role of ADR in resolving family law disputes. In Part B
the Commission discusses the need for information meetings for separating or
divorcing couples. In Part C the Commission explores the initiative of
parenting plans. In Part D the Commission examines the provision for
counselling in family law disputes. In Part E the Commission discusses
mediation and family disputes. In Part F the Commission discusses the
development of collaborative lawyering. In Part G the Commission examines a
pilot case conferencing procedure for family disputes. In Part H the Commission
provides a summary of ADR developments in England and Wales, with a specific
focus on Government initiatives in the area of family mediation. In Part I the
Commission discusses the appropriateness of mediation for resolving family
probate disputes.
B
Information
Meetings
(1)
The
Commission Report on Family Courts 1996
5.02
In its Report on Family Courts[578]
the Commission made a number of recommendations in relation to providing
information to those who have begun, or are considering the institution of,
family law proceedings.[579] The
Commission recommended that a Family Court Information Centre be established at
various regional courts, with responsibility for providing objectively presented
information relating to available alternatives to litigation, the implications
of separation, court processes and case management information and information
on available support services. The Commission recommended that any legal
information received should be information only, and not advice.[580]
5.03
The Commission also recommended that where proceedings for judicial
separation have been instituted, the parties should be required within two weeks
to attend the proposed Family Court Information Centre, if they had not already
done so, to receive information as appropriate concerning the various family
support services available, including welfare service and to receive
information and advice concerning the availability and purpose of mediation.[581]
This information would be given by an official with appropriate knowledge and
counselling skills who would act under the auspices of the court. The
Commission recommended that this information should be augmented by an
appropriate video, and by the provision of a full information pack and that
there should be emphasis throughout on the need to give priority to the
interests of any dependent children and on the importance of avoiding any
damage or distress to them.[582]
5.04
In relation to other family law proceedings before the Court, including
custody, access, maintenance and barring and safety order applications, the Commission
recommended that the opportunity should be presented to the parties to attend
the proposed Family Court Information Centre to receive similar free
information and advice.[583] This
should not be compulsory, but the court would be obliged to consider at the
beginning of the hearing whether to adjourn proceedings, if appropriate, to
require the parties to attend the proposed Information Centre to receive the
relevant information and advice. The Court should not, however, adjourn
proceedings for this purpose unless satisfied that no additional risks would be
involved in respect of any family members whose safety or welfare was in issue.[584]
5.05
The Commission also recommended that the parties should not be required
to attend the session together, that attendance at information sessions should
be free of charge and that attendance should be certified by the proposed
Information Centre.[585] Where the
appropriate certificate of attendance or waiver has not been obtained, the
Court would have the right, at its discretion, to adjourn the case until the
parties had attended the proposed Information Centre. Where one or both of the
parties still refused to attend, the court would proceed with the hearing, but
written information would be sent to the parties.[586]
These recommendations have not been implemented.
(2)
2007
Courts Service Report on Family Law Reporting Pilot Project
5.06
The 2007 Report prepared for the Courts Service of Ireland reiterated a
number of the recommendations in the Commission’s 1996 Report. It also
recommended that each proposed regional family courts should have an
information office providing information on all options available for the
resolution of family law disputes, mediation facilities, an office of the Legal
Aid Board, and family support and child assessment services.[587]
It also recommended that the Courts Service should commission or prepare
comprehensive information booklets on the various options available for the
resolution of family law disputes, including the option of ADR, and the reliefs
available in the District Court and Circuit Court and how to apply for them.[588]
(3)
Models
in Other Jurisdictions
(a)
Canada
5.07
Parenting After Separation (PAS) is a free three-hour information
session for separating parents sponsored by the Ministry of the Attorney
General in British Columbia.[589] The
purpose of the sessions is to help parents make informed choices about
separation and conflict, taking into account the best interests of their
children. Information is presented in lectures, videos, handouts and
interaction with participants in three key areas: the impact of separation on
children and adults, and how parents can best help their children through this
difficult time; the full range of dispute resolution options available in the
justice system, including mediation and the court process; how the child
support guidelines work; and how to find out more about them. Both the person
making an application to court and the other parent must attend a PAS session
before their first court appearance if:
·
an original order for child custody, access, guardianship or child
support is sought, or
·
a variation of an existing order for child custody, access, guardianship
or child support is sought.
5.08
Parents can apply to the court for an exemption from attending a PAS
session when they are applying for a restraining order or if they feel their
personal safety, or the safety of their children, is at risk as a result of
urgent and exceptional circumstances.
(b)
United States
5.09
Structured educational programmes for separating and divorcing parents
have been developed and widely implemented in the United States and exist in
either a mandatory or a voluntary format.[590]
Research on parent education programmes in the United States, and parental
response to these programmes, suggests that well-designed divorce education
programs should be mandatory and early in the divorce process for all parents
disputing custody or access issues as they bring children’s needs and voices
sharply into focus for parents in a completely nonadversarial manner, and at relatively
low cost.[591]
5.10
In a 2008 survey, it was found that parent education programmes operate
in 46 states throughout the United States. 27 programs make attendance
mandatory by statute. 15 states require all parents to attend, while 14 states
leave it within the discretion of the court. There are two states which provide
parent education programmes but do not make them mandatory.[592]
5.11
By way of example, in 1995 the St Louis Family Court in Missouri
introduced a court mediation-education programme. Couples filing for divorce
are required to attend one or two hour long programmes. The first programme,
entitled “Parenting”, addresses the needs of children during the divorce. The
second mandatory session is entitled “Orientation to the Family Court” and
focuses on how mediation can speed up the process and the court's role in a
divorce. The goals of the programme are: to reduce the time taken to complete a
divorce; to enable couples with the help of a court-appointed mediator to work
out a divorce agreement themselves to reduce the number of contested divorces
going to trial; to reduce extended conflict and stress; and to reduce the cost
for the couples involved.[593]
5.12
Research has indicated that voluntary participation in these education
programmes is quite low, and so the trend has been to make them mandatory for
all parents who seek the assistance of the courts for disputes about their
children, or at the very least to provide courts with the authority to order
the classes.[594]
5.13
For these reasons the Commission reiterates the recommendations
expressed its 1996 Report on Family Courts, that information meetings be
required in family disputes.
5.14
The Commission reiterates its previous
recommendations set out in the Commission’s 1996 Report on Family Courts (LRC
52-1996) in relation to information in family law disputes.
C
Parenting
Plans
5.15
When parents separate, children often experience distress, and their
adjustment post-separation may be adversely affected when the relationship with
one of their parents is severed.[595]
Arguments in favour of the use of parenting plans are based on the premise that
the process of developing a parenting plan will encourage joint parental
responsibility and prevent future disputes arising by ensuring that potentially
contentious issues have been identified and dealt with in as positive a way as
possible.[596]
5.16
The Family Mediation
Service which forms part of the Family Support Agency[597]
describes a parenting plan as:
“…a carefully devised schedule which lays out how to share
time with the children, how to manage responsibilities, and how to make
decisions about the children. School arrangements, child care, holidays, and
pocket money can all be part of a parenting plan. It is a plan that is
individual to each family and takes into account everyone’s needs and
interests.”[598]
5.17
The Family Mediation
Service suggests that parenting plans provide continuity for children in
their relationship with each parent and provide a structure so that everyone is
clear about future living arrangements. Furthermore, clearly agreed plans help
to reduce conflict.[599] The
Commission notes that in some
jurisdictions completion of parenting plans and parenting education programmes
are mandatory.
(a)
Voluntary Parenting Plans: England & Wales
5.18
Parenting plans were introduced in England and Wales in the context of
information meetings to encourage parents to focus on the needs of their
children and to plan for their future in practical everyday ways. Parents are
provided with a booklet in which they can enter arrangements for their children
under nine broad headings including living arrangements, schooling, health, special
days and staying in contact with the wider family.[600]
5.19
In the evaluation of the information meetings and parenting plan pilots
it was found that very few parents (13%) actually completed the plan, but a
larger group found it useful in a variety of ways.[601]
Parents used it as an agenda for discussions with their partner, children and
others, and as a reminder of the issues that they needed to settle.
5.20
The British Government proposes to further develop these plans to
provide templates which parents can use to enable them to reach the best
possible arrangements for their child. They also illustrate to parents how the
courts are likely to approach their case if considering an application.
Mediators and solicitors will also be able to use this additional information
as a guide when advising their clients.[602]
(b)
Statutory Parenting Plans: Australia
5.21
Parenting plans were given legislative recognition in the Family Law
Act 1975 as amended by the Family Law Reform Act 1995.
Parents of a child were encouraged to agree about matters concerning the child
rather than seeking an order from a court and, in reaching their agreement, to
regard the best interests of the child as the paramount consideration.[603]
5.22
A parenting plan was defined in the changes introduced in 1995 as an
agreement in writing, made between the parents of a child, dealing with one or
more of the following: the person or persons with whom a child is to live;
contact between a child and another person or persons; maintenance of a child;
and any other aspect of parental responsibility for a child.[604]
Those matters, apart from maintenance of a child, are called "child
welfare provisions."
5.23
The child welfare provisions of a registered parenting plan took effect
as if they were orders for residence, contact or specific issues. In other
words, the provisions of the plan became legally enforceable once the parenting
plan was registered and were enforceable as if they were court orders. An
unregistered parenting plan had no such effect.
5.24
A parenting plan became registered in a court after scrutiny by that
court. To be registered, an application was made to the court accompanied by a
copy of the plan together with either a certificate of independent legal advice
or a certificate that the plan was developed after consultation with a child
and family counsellor. The court may have registered the plan if it considered
it appropriate to do so having regard to the best interests of the child to
which the plan relates. A parenting plan may have been set aside where: it has
been obtained by fraud, duress or undue influence; the parties wish it to be
set aside; or it is in the child's best interests for it to be set aside.[605]
5.25
Statistics kept by the Family Court of Australia indicate that there was
limited use of the registration provisions introduced by the 1995 Act. For
example, in 1998-99 there were a total of 395 applications to register
parenting plans in the Family Court of Australia. In the same period, 320 plans
were registered and there were 5 revocations of previously registered parenting
plans. By contrast, there were 15,553 consent orders sought during 1998-99.[606]
It has been suggested that a major reason for the diminishing use of parenting
plans was that lawyers and the court were not encouraging parents to register
their parenting plans because of: the costs involved; the complexities
associated with amending registered parenting plans (revocation by further
agreement); and an appreciation that the registration of parenting plans is
contrary to the intention that they should be a flexible alternative to court
adjudication.[607]
5.26
Arising from this, further changes were made by the Family Law
Amendment (Shared Responsibility) Act 2006. As a result a plan is
not legally enforceable but parents can have their parenting plans made into 'consent
orders'. Consent orders are orders made by the court, with the agreement of
both parents, and have the same legal force as other court orders.
5.27
The 2006 Act amended the obligations of advisers (that is, legal
practitioners, family counsellors, family dispute resolution practitioners and
family consultants) under the 1975 Act when giving advice to people in relation
to parenting plans. Two different types of information must be provided under
this section, depending on whether an adviser is advising people generally
about arrangements for children after separation or providing specific advice
in connection with the making of a parenting plan. Advisers assisting or
advising people about parental responsibility following the breakdown of a
relationship must inform the people they are advising:
• that they could consider entering into a parenting plan,
and
• about the services that are available to provide assistance
to develop a plan.
5.28
When advising people about the making of a parenting plan, an adviser
must inform them, that where it is in the best interests of the child and
reasonably practicable, they could consider as an option an arrangement where
they equally share the time spent with the child and that if an equal time
arrangement is not appropriate, they could consider whether an arrangement
where the child spends substantial and significant time with each person would
be in the best interests of the child and reasonably practicable. This ensures
that the focus is not just only on the amount of time that each parent spends
with the child but also on the type of time that is spent.
(c)
Parenting Agreements: New Zealand
5.29
The New Zealand Care of Children Act 2004 encourages parents and
guardians to agree on their own arrangements for the care of their children.
When an agreement is not working in practice the 2004 Act also encourages
parents and guardians to sort out their differences themselves. The Family
Court arranges free counselling, if necessary, to help them come to a new
agreement. Only as a last resort will the Court become involved and settle the
disagreement by making a parenting order. As under the Australian 1975 Act (as
amended in 2006) a parenting agreement cannot be enforced like a Court order or
a commercial contract can. However, parents and guardians can apply to the
Family Court to have a parenting agreement made into a Court order. The terms
of the agreement can then be enforced like any other Court order.
5.30
The Commission invites submissions as to whether separating and
divorcing parents should be encouraged to develop parenting plans.
D
Counselling
5.31
In its 1994 Consultation Paper on Family Courts the Commission
defined counselling as
“professional assistance to parties with respect to their
psychological and emotional problems. Counselling may be directed towards the
individual or it may address the parties' relationship.”[608]
5.32
In the 1996 Report on Family Courts, the Commission recommended
that solicitors should be under a duty of care to advise clients to engage in
counselling. On foot of this recommendation, section 20 of the Children Act
1997 places a duty on solicitors to advise their
clients to consider engaging in counselling to assist them in reaching an
agreement about the custody of the child, the right of access to the child or
any other question affecting the welfare of the child. The solicitor must also give
to their client the name and address of persons qualified to give counselling
on the matter.
(1)
New
Zealand
5.33
The New Zealand Family Court was established in 1981 under the Family
Proceedings Act 1980. Family ADR processes in
New Zealand have developed quite differently to those in Australia.[609]
The first level of dispute resolution is counselling at the court or privately.
If this does not resolve the matter, a mediation conference is held, the aim of
which “is to demonstrate to a couple that settlement of the dispute is their
responsibility.”[610] If the
mediation conference fails to bring resolution to the dispute, then the final
step is adjudication.
5.34
The Family Proceedings Act 1980 also established the post of
Counselling Co-ordinator, whose duty is to facilitate the proper functioning of
the Family Court and of counselling and related services, such as mediation.[611]
The 1980 Act provides that the Co-ordinator is an officer of the court.
Counselling is available on request by one of the spouses[612]
or by “mandatory referral” after an application for a separation order.[613]
Discretionary counselling is available when the court considers, at any stage
of the proceedings, that such counselling may promote reconciliation or
conciliation.[614] The 1980
Act provides that a court may direct referral to conciliation counselling in an
application relating to custody of a child. Counselling can be dispensed with
if the court considers that violence has been used or threatened against a
spouse or child, or if delay or other reasonable cause exists.[615]
Referral to conciliation counselling may also come from legal advisers who have
a statutory duty to encourage conciliation.[616]
5.35
One of the Family Court Judges in New Zealand, Cartwright J, has stated
that the Counselling Co-ordinator has played a pivotal role in the Family Court
and has been critical to its success.[617]
Cartwright J noted that “in all parts of New Zealand where there is a
counselling co-ordinator attached to the Family Court the level of judicial
work in Court has dropped markedly.” The Co-ordinator had humanised the
“otherwise bureaucratic face of the Court”. The lawyers had also taken
advantage of the service by referring clients to the Co-ordinator for
appropriate referral to a counsellor or other agency.[618]
5.36
In its 2003 Report on Dispute Resolution in the Family Court[619]
the Law Commission of New Zealand recommended that counselling should be
available to all couples regardless of sexual orientation. The Law Commission
also recommended that there should be discretion to offer counselling to people
who are parents of the same child, but who have never lived together. It also
recommended that people other than the separating parents should be able to
attend counselling, if, in the view of the Family Court Co-ordinator (or on the
recommendation of the counsellor and parties) it is thought this might help
resolve the dispute and that children should have access to counselling
services.[620]
E
Mediation
(1)
Family
Mediation: An Overview
5.37
The 2007 Report prepared for the Courts Service Family Law Reporting
Pilot Project suggests that the unplanned development of the family
law system in Ireland has led to a situation where, “ …lists are overcrowded;
cases, including urgent cases involving matters on the welfare of children, are
adjourned for weeks or months at a time. Practices and procedures can
vary from district to district and circuit to circuit, compounding a general
lack of information about how the family law system works.”[621]
In responding to the Report, the then Minister for Justice stated “We have to
examine whether there could be some procedure short of the courts that could be
used to resolve differences. A full court hearing in a family law case is a bit
like a tribunal of inquiry for a politician."[622]
Mediation is one of the methods by which family law disputes can be resolved
and the need to use it for the resolution of family law disputes has been
widely acknowledged.
5.38
In 1985, the Joint Committee on Marriage Breakdown described the
essential features of mediation as follows:[623]
·
that it accepted that the marriage had broken down and was therefore
totally different from reconciliation;
·
that it conveyed the idea that the parties should be responsible for
resolving their own disputes; and
·
that it was designed to deal with specific problems caused by breakdown
and provided a basis for continued interaction and co-operation between the
spouses.
5.39
As noted by the Family Mediation Service, issues which can be
addressed and resolved by family mediation include:
·
The family home – where will each person live and where will the
children live?
·
Parenting – how will the children spend time with each of their parents
and how will the parents communicate about their children?
·
Financial support – will support be paid for one spouse and the children
and how much will each person have to live on?
·
Pensions – what entitlements are there and how will they be distributed?
·
Assets – how will the couple divide their assets?
·
Debts – how will they manage debts and other outgoings?
·
Contents of the family home – how will the contents be allocated?[624]
5.40
Proponents of family mediation argue that the traditional adversarial
litigation system is unable to adapt to the needs unique to family breakdown.
Where human relationships are strained, the adversarial approach may actually
increase rather than reduce conflict.[625]
“The basic nature of the adversarial system pits parents against each other,
encourages polarised and positional thinking, and discourages parental communication,
cooperation, and more mature thinking about children’s needs at a critical time
of change and upheaval.”[626]
5.41
In its Consultation Paper on Family Courts,[627]
the Commission acknowledged a number of advantages and disadvantages for
mediation. The Commission noted that the advantages that have been put forward
for mediation as an alternative to the adversarial process include:
·
Adversarial court hearings may exacerbate the friction and hostility
inherent in most marital disputes, while the emphasis in mediation is rather on
fostering co-operation and establishing workable arrangements for the future;
·
Mediation offers the parties an opportunity to take control over their
future arrangements, instead of leaving it in the hands of professionals;
·
The costs of mediation may be less than the costs of a full hearing and
disputes can be resolved more quickly than through the court process;
·
Arrangements reached through agreement are more likely to be adhered to
than solutions imposed by a court. This is especially so in arrangements
relating to child custody and access; and
·
Mediation is private. Mediation usually limits outside intervention
(with the exception of legal advisers) to one professional.[628]
5.42
In terms of disadvantages, the Commission noted that:
·
The process of mediation with its emphasis on the voluntary agreement of
the parties tends to mask social and economic imbalance between the parties.
The economically dependent spouse, usually the wife, is generally in a weaker
contracting position than her partner;
·
Mediation designates agreement between the parties as its aim, and it
operates without the protection of legal norms and principles;
·
Mediation removes control from the parties, even where its intention is
to give them greater control. This criticism is associated in particular with
schemes where the mediator actively encourages a particular form of settlement
rather than letting the parties define their own terms;
·
Instead of deregulating proceedings, mediation [this is more akin to the
Commission’s definition of conciliation[629]]
actually extends regulation, in particular under in-court schemes where
experience shows that the professionals may tend to dominate and the
proceedings become more adjudicative than conciliatory in nature. Mediation may
also extend regulation in that simpler, alternative means of settlement might
have been used if mediation were not available, such as settlement through
solicitors; and
·
The cost of mediation may be significant, and it is not established that
it is in all cases less than the cost of court proceedings.[630]
5.43
The Commission acknowledges that mediation has advantages, but also some
disadvantages. For this reason in its 1996 Report on Family Courts the
Commission concluded that mediation services are not intended to replace the
court system, but rather to divert appropriate cases from it. Some cases will
and should be resolved in court and may not be appropriately resolved by
mediation. Such cases, as previously noted by the Commission, include those
where there is serious violence against one of the spouses, or where there are
allegations of child sexual or physical abuse.[631]
With these exceptions in mind, the Commission remains of the view that where
appropriate, mediation should be considered by parties to a family dispute
before litigation.
5.44
The Commission provisionally recommends that, where appropriate,
mediation should be considered by parties to a family dispute before
litigation.
(2)
Legislative
Development of Family Mediation in Ireland
5.45
The Judicial Separation and Family Law Reform Act 1989 introduced
the first statutory duty on solicitors to advise their clients in judicial
separation proceedings to discuss reconciliation, mediation and making a
separation agreement. The 1989 Act also required solicitors to give their
clients the names and addresses of persons qualified to help effect a
reconciliation between spouses who have become estranged, and the names and
addresses of “persons and organisations qualified to provide a mediation
service.”[632]
5.46
Where a solicitor acting for an applicant or respondent fails to certify
that he has advised his client as to these possibilities, the court has the
power to adjourn the proceedings for such period as it deems reasonable to
allow the solicitor to discuss these matters with his client.[633]
5.47
The Family Law (Divorce) Act 1996 imposes a similar duty on
solicitors in divorce applications. Section 9 of the 1996 Act provides for the
non-admissibility as evidence of communications relating to reconciliation,
separation or divorce.[634]
5.48
Similarly, section 20 of the Guardianship of Infants Act 1964,[635] as inserted by the Children Act 1997, requires the
solicitor acting for an applicant for guardianship to discuss the possibility
of using mediation to effect an agreement about custody, access or any question
affecting the welfare of the child and to give to the applicant the names and
addresses of persons qualified to provide an appropriate mediation service.[636]
5.49
It has been suggested that the legislation appears to have little impact
on the use of mediation by those whose relationships have broken down and that
“some judges express scepticism as to whether the option of mediation is
seriously discussed by many solicitors with their clients.”[637]
(3)
Family
Mediation Service
5.50
The Family Mediation Service was established by the Department of Family
and Social Affairs in 1986 as a pilot service and was placed on a statutory
footing as part of the Family Support Agency (established under the Family
Support Agency Act 2001). It operates a nationwide mediation service of
four regional full time centres (Dublin, Cork, Galway and Limerick) and 12
part- time offices.
5.51
It is a confidential service that enables couples who have decided to
separate, or who have already separated, to negotiate their own separation
agreement. This is done with the help of a trained mediator, without resorting
to adjudication through the courts.[638]
Unlike schemes in the United States and Australia, it is not directly
affiliated to the court.
5.52
From 1986-1996, an average of 250 couples a year used the Family
Mediation Service. The number using the Service has increased dramatically in
more recent years. In 2006, the Service assisted 1,553 couples. Of these 875
were assisted to completion, a further 319 did not proceed after the intake
session and the remaining couples were carried forward to 2007 and are
continuing mediation.[639]
5.53
The 875 couples who sought assistance from the Family Mediation Service
in 2006 need to be seen in the context of 20,900 family law applications to the
District Court, 5,835 applications to the Circuit Court and 90 applications, to
the High Court, giving a total of 26,825 court applications in the area of
family law in 2006.[640] This
indicates that the number of people who use the Family Mediation Service is
low.
5.54
In the 2007 Report Family Law Reporting Pilot Project several
reasons were proposed as to why there is a low uptake of mediation in family
disputes in Ireland. These include:
·
There is no obligation on a couple to undergo any mediation before
having recourse to the courts;
·
Some legal practitioners express concerns about the quality of mediation
available in certain areas, and fear that their client’s rights may not be
upheld during the process, especially where there is an imbalance in power and
resources between the parties;
·
A client opting for mediation can be a client lost to a solicitor, which
may have a bearing on the extent to which solicitors encourage their clients to
seek a mediated settlement;
·
Research carried out on behalf of the Family Mediation Service also
found that both the public and the legal professions lacked information about
the service and what it can do, which contributes to it not being used more. [641]
5.55
The 2007 Report recommended that the Family Mediation Service should be
expanded and that all family mediators should be subject to a national system
of accreditation. The 2007 Report also recommended that the service should be
linked more closely to the courts and linked in to collaborative law where
appropriate.[642]
(4)
Issues
in Family Mediation
(a)
Voice
of the Children in Family Mediation
5.56
A question arises in family mediation as to whether a child should
actively participate in the mediation process to make his or her voice heard in
order for parents and mediators to make sure the child’s best interests are
met.[643]
5.57
Articles 9 and 12 of the 1989 UN Convention on the Rights of the
Child ratified by the State in 1992, declares the child's right
to express an opinion and to have that opinion taken into account in any matters
or procedures affecting them. Article 9 states:
“The right of the child who is separated from one or both
parents to maintain personal relations and direct contact with both parents on
a regular basis, except if it is contrary to the child's best interests.”
5.58
While Article 12 states:
“The rights of a child who has the capacity to form his or
her own views to express those views freely in all matters affecting the child,
the views of the child being given due weight in accordance with the age and
maturity of the child.”
5.59
The 2003 Brussels II EC Regulation[644]
concerning jurisdiction and the recognition and enforcement of judgments in
matrimonial matters and matters of parental responsibility also recognises the
right of the child to be heard, in accordance with his or her age and maturity,
on matters relating to parental responsibility over the child.[645]
5.60
It has been suggested that allowing the child to participate actively in
a mediation process acknowledges the worth of the child and reduces a child’s
distress, especially because “research evidence shows that the parents' views
of what children think can differ considerably from what the children
themselves think.”[646] Yet certain
mediators feel that the involvement of children places an unfair burden on them
and the mediator may be forced to abandon their neutral and impartial role and
adopt the position of child advocate. Furthermore, research has shown that
children's views often change over time and mediators have argued that the
right of parents to determine their own decisions about their children is not
necessarily at odds with the welfare of the children.[647]
5.61
In Ireland, the voice of child will only be heard in a mediation where
both parents give consent to the mediator to consult the child directly and the
child agrees to partake.[648] The Family
Mediation Service Code of Ethics and Professional Conduct sets out
several provisions which address the welfare of children in mediation proceedings.
These include the following:
“Mediators have a special concern
for the welfare of all the children of the family. They must encourage clients
to focus upon the needs of the children as well as upon their own needs and
must assist the clients to explore the situation;
Mediators must encourage the
clients to consider their children’s own wishes and feelings. Where
appropriate, they may discuss with the clients whether and to what extent it is
proper to involve the children themselves in the mediation process in order to
consult them about their wishes and feelings.
If, in a particular case, the
mediator and clients agree that it is appropriate, to consult any child
directly in mediation, the mediator should be trained for that purpose, must
obtain the child’s consent and must provide appropriate facilities.
Where a mediator has a reasonable
concern that a child may be at risk, the mediator will assist the clients
themselves to report concerns to the appropriate agency and inform clients that
a notification from the Service will be sent to Community Care. The mediator
must inform clients who are unwilling or unable to take responsibility for
reporting that a referral will be made by FMS in accordance with the procedures
set out in FMS Child Protection Policy.”[649]
5.62
In Australia, the Family Law Act 1975, as amended by the Family
Law Reform Act 1995 put a greater emphasis on the child’s best interests in
the process of dispute resolution. An Australian study found that only 4% of
mediators had ever consulted school age children. Following this, a four month
pilot project was launched into child consultation. The results of this study
reported that over 80% of parents whose children were consulted as part of the
mediation process felt that they had benefited ‘a great deal’ from it.[650]
5.63
In 2006, a research report in New Zealand examined the efficacy of a
mediation model which involves working with children who are actually included
with their parents in parts of the mediation process at the time of separation.[651] The
research involved interviewing 17 families at different stages of parental
separation following attendance at a mediation process, and children had
attended parts of this mediation with their parents. The families were selected
from Family Court referrals. The 26 children involved ranged in age from
6 to 18 years. Findings indicated a high level of satisfaction with this
process from both children and parents. Parents registered a heightened
awareness of the effects of conflict on their children, recognition of a
child’s need for parental co-operation and an enhanced ability to make
agreements about co-parenting with their former partner. Children in the study
felt that their strong need for a voice and for information from within the
familial context was satisfied by this involvement. They reported a decrease in
anxiety about the emotional and practical issues facing them as their family
life was rearranged. Parents also commented on how much less anxious their
children were.[652] When asked
how the process had helped, children stressed the emotional results of a
mediated meeting with their parents. The fact that parents had improved
communication and listened to the child minimised the likelihood of
triangulation and allowed the child to relate positively to both parents.[653]
In a follow-up study one month after the original sessions, contentment with
the process remained high. Several parents commented that, if their situation
deteriorated, they felt it would be productive to return to the mediation
process.[654]
5.64
According to the American Model Standards for Family and Divorce
Mediation “Except in extraordinary circumstances, the children should not
participate in the process without the consent of both parents and the
children’s court appointed representative.”[655]
The use of the phrase “extraordinary circumstances” in the Model Standards sets
a deliberately high barrier, and does not force a parent to involve a child if
that parent is opposed to it and a child’s participation is a matter for
parents to decide after proper consultation and discussion.[656]
5.65
The Commission agrees that this achieves the correct balance between
giving a voice to the views of children and at the same time ensuring
appropriate levels of control over whether this should become part of
mediation.
5.66
The Commission invites submissions as to whether children should
participate in mediation proceedings affecting them.
(b)
Screening
in Mediations
5.67
Screening mechanisms help determine whether mediation is appropriate.
The Commission has already reiterated its previously expressed view that
mediation is inappropriate for resolving family disputes where domestic
violence is alleged, where there are allegations of child sexual or physical
abuse, where one of the parties suffers from alcohol or drug dependency, or where
power imbalances exist between the parties.[657]
5.68
In relation to the issue of domestic violence the Family Mediation
Service Code of Ethics and Professional Conduct states that:
“One of the
purposes of screening at the intake session is to check out if violence is, or
has been present or whether it is alleged that any client has been or is likely
to be violent towards another. Where violence is alleged or suspected mediators
must discuss whether any client wishes to take part in mediation and provide
information about available support services. Where mediation does take place,
mediators must uphold throughout the principles of voluntariness of
participation, fairness and safety… In addition, steps must be taken to ensure
the safety of all clients on arrival and departure.” [658]
5.69
The Commission fully supports the policy of the Family Mediation Service
that “the mediator is continually assessing for domestic abuse in the course of
mediation and a number of cases will terminate as a result of this.”[659]
(c)
Enforcement
& Review of Mediated Settlement Agreement
5.70
Another issue is
whether a court should review all mediated settlements in relation to custody
and access arrangements for children. In its 1996 Report on Family
Courts the Commission recommended that:
“Mediated agreements should normally be reviewed by the
parties' respective legal advisers. The parties should be encouraged to seek
independent legal advice before and, as necessary, during the mediation
process. Where a party wishes to receive legal advice and is waiting for an
appointment to consult a Legal Aid Board solicitor, mediation should be
suspended until such advice becomes available. Provisions to this effect should
be included in a Code of Practice.” [660]
5.71
The Commission also recommended that there should be no extension of the
courts' powers to review agreed arrangements concerning custody of or access to
children.[661] The
Commission recommended that instead there should exist a more general power in
the courts to review and, if necessary, vary, on the application of either
party, the terms of agreements concerning maintenance and property on the
following grounds:
(a) that
facts have come to light since the agreement was entered into which, had either
party been aware of them at the time, could reasonably be expected to have
effected a material change in the terms of the agreement, or
(b) that
the economic circumstances of the parties have altered since the agreement in a
manner which could not reasonably have been anticipated by the parties at the
time of the agreement, and which makes it unreasonable to insist on the
application of the original terms of the agreement.[662]
5.72
In these circumstances, the Commission recommended that the court should
have the power to confirm, cancel or vary any terms in the agreement, but
should not disturb transactions which have already been concluded under the
provisions of the original agreement.[663]
The Commission also recommended that in every case where an application is made
to a court to have an agreement, that affects the parties' financial or
property relationships recorded or made a rule of court, there should be an
obligation on the court not to grant the application unless it is satisfied
that the agreement is a fair and reasonable one which in all the circumstances
adequately protects the interests of the parties and of any dependent children.[664]
5.73
The 2007 Report for the Courts Service Family Law Reporting Pilot
Project recommended that:
“Cases that ended in a mediated or negotiated settlement
should be separately listed and ruled. Consideration should be given to
establishing a court of limited jurisdiction, presided over by the county
registrar, who could rule such consents”[665]
5.74
The Commission
reiterates its previous recommendations set out in the Commission’s 1996 Report
on Family Courts (LRC 52-1996) in relation to enforcement and review of
mediated agreements.
(5)
Mediation
Schemes in Other Jurisdictions
(a)
England
& Wales
5.75
In Al-Khatib v Masry[666]
Thorpe LJ stated that mediation should be considered at each level of court
proceedings, even at Court of Appeal level, because
“… there was no family case, however conflicted, that was not
potentially open to successful mediation, even if mediation had not been
attempted or had failed during the trial process.”
5.76
There are approximately 150,000 divorces per year in England and Wales
and approximately 50,000 applications concerning children. Furthermore, 3 in
every 5 marriages are estimated to end in divorce, 1 in 4 children under 16
will experience their parents divorce and over 150,000 children are affected by
divorce every year.[667] With
15,000 publicly funded mediations plus approximately 5,000 private mediations,
this indicates a mediation population of around 20,000. Thus it would appear
that there are 10% of the divorcing and separating population who use mediation.[668]
5.77
For many years, there was little official support and funding for family
mediation in England and Wales. However stemming from the recommendations of
the Law Commission’s 1990 Report Family Law: The Ground for Divorce[669]
family mediation was allotted a central role in the reform of divorce
introduced by the Family Law Act 1996. The 1996 Act aimed to
contribute to a situation where divorce could be carried out:
·
with minimum distress to the parties and to the children affected;
·
with questions dealt with in a manner designed to promote as good a
continuing relationship between the parties and any children affected as is
possible in the circumstances; and
·
without costs being unreasonably incurred in connection with the
procedures to be followed in bringing the marriage to an end.[670]
5.78
The 1996 Act introduced a requirement that those seeking public funding
for court proceedings must first be referred by their lawyer to a
State-registered family mediator, to receive information about mediation and to
regard it as an alternative to contested court proceedings. At this preliminary
meeting, which the applicant may attend separately or with the other party, as
preferred, the mediator explains the help that can be offered through mediation
and makes an assessment with the client of the suitability of the dispute for
mediation.[671]
5.79
Although mediation was seen as a better alternative to adversarial
proceedings, the Family Law Act 1996 did not make mediation compulsory,
the principle that participation in mediation should be voluntary was
maintained. Although there was a criticism that the requirement that one party
attend an information meeting cannot actually lead to mediation unless the
other party is also willing, experience has shown that the opportunity to
receive information from a mediator at an early stage results in mediation
being accepted by both parties in a significant proportion of cases.[672]
5.80
Parties are not free to choose any mediator to conduct the mediation.
Only quality assured mediators meeting the criteria of the Legal Services
Commission can conduct publicly funded family mediation. The process until
October 2007 had been that, when a client approached a solicitor for legal
services in connection with a legal dispute arising out of a family
relationship, the solicitor might have wanted to assess whether the client is
eligible for publicly funded legal services. For clients who were eligible for
publicly funded legal services this lead to a compulsory referral to a
mediation organisation. Once the referral had been received a mediation
organisation would contact the clients to the dispute to ascertain whether they
were willing to attend an information/intake meeting.[673]
5.81
If the clients attended for an information/intake meeting, they would be
given information about the mediation process, the suitability of their case
for mediation would be ascertained (including a domestic violence check) and an
assessment of their eligibility for publicly funded mediation undertaken.
Appropriate cases would then progress to mediation. Since October 2007 the
‘compulsory’ point at which the solicitor has to refer to mediation has been
changed, to immediately before the issuing of proceedings.[674]
5.82
At the pre-mediation information meeting the mediator must:
·
engage with each party/both parties and, if they choose to come together,
understand their issues and explain the mediation process carefully;
·
assess their eligibility for legally aided mediation according to income
and other factors;
·
assess whether mediation is suitable. Cases involving a history of domestic
violence and continuing risk are not normally suitable for mediation, whereas
situations involving perhaps a single incident and low risk may be suitable,
especially if both parties want to come to mediation;
·
provide information on other services, if mediation is not suitable; and
·
confirm both parties’ willingness to take part in mediation, having
understood the principles and benefits.[675]
5.83
In October 2007, the English Legal Service Commission introduced a new
family mediation fee structure. This fee scheme encourages the use of
mediation, where it is appropriate, and it rewards mediators who are successful
in reaching an agreement.[676]
5.84
As previously noted by the Commission, the National Audit Office
published a report on mediation and family breakdowns.[677]
In the period from October 2004 to March 2006, 29,000 people who were funded through
legal aid attempted to resolve their family dispute through mediation. The
average cost of legal aid in non-mediated cases was estimated at £1,682,
compared with £752 for mediated cases, representing an additional annual cost
to the taxpayer of some £74 million. Mediated cases were reported to be quicker
to resolve, taking on average 110 days, compared with 435 days for non-mediated
cases.[678] Over 95%
of mediations were complete within 9 months and all mediations were complete
within 12 months. By contrast, the average elapsed time between applying for
other legal help for family-related matters and the date of the final bill was
435 days, or over 14 months. Only 70% of these cases were complete within 18
months.[679]
5.85
It is notable that, while publicly-funded clients are given the
opportunity to find out about mediation and assess whether their case is
suitable for mediation, private clients are not given this same opportunity.
Non-legally-aided parties are invited but not required to attend such meetings.
Section 13 of the British Family Law Act 1996, empowers a court to
compel a party (legally aided or not) to attend a meeting with a mediator to
hear about mediation and its benefits. This provision has not been brought into
force.
(b)
United
States
5.86
In a study conducted in 2001, it was noted that 38 states in the United
States had legislation that regulate family mediation.[680]
The mediation process in the legislative schemes was generally confidential;
with some exceptions, notably in relation to reporting child abuse and
neglect. Domestic violence has been raised as the greatest barrier to fair
and successful mediation and hence, in most systems where mediation is
mandated, there are exemptions where this has been alleged. Most agreements
reached through mediation were not binding until approved by the court. If no
agreement was reached, generally, it was found that the cases go to trial.[681]
5.87
In relation to mandatory mediation, many policy makers in the United
States believe that mediation should be mandatory for parents who have custody
or access disputes, because of its demonstrated effectiveness in achieving
settlement, conflict reduction and more positive co-parental relationships. It
was also pointed out that such mandatory mediation statutes send a clear public
policy message that where possible, the first level of intervention for family
law disputes should be in non-adversarial processes, before proceeding to more
conflict-escalating adversarial interventions.[682]
5.88
Custody mediation is an early intervention for disputing parents, who
are required to schedule a mediation appointment within several weeks of filing
a motion or petition.[683] By 2001,
mediation had become mandatory in 13 states in the United States.[684]
It is important to note that these mandatory mediations only require an attempt
to mediate parental differences on custody and contact, not settlement.[685]
5.89
In California, mediation has been compulsory since 1981. The mediation
statute states that the purposes of the mediation proceedings are:
(a) To reduce acrimony that may exist between the parties;
(b) To develop an agreement assuring the child close and
continuing contact with both parents that is in the best interest of the child;
and
(c) To effect a settlement of the issue of visitation rights
of all parties that is in the best interests of the child.[686]
5.90
A study in 2004 indicated that in 34 of California’s 58 counties,
mediators were authorised to make recommendations to the court for custody and
visitation arrangements when parents were at an impasse, whereas in the
remaining counties mediation was confidential.[687]
Thus, in “recommending” counties, mediation incorporates an evaluative
component and is more in line with the Commission’s view of conciliation.
(c)
Australia
5.91
Australia has a long tradition of promoting ADR for family disputes. The
Federal government issued a “Justice” statement in May 1995 in which it
committed itself to making dispute resolution services more widely available.
Funding was allocated to 24 family mediation services throughout Australia over
a four-year programme. Funding was also allocated to expand community based
family mediation services. A National Alternative Dispute Resolution Advisory
Council (NADRAC) was established in November 1995 to develop a comprehensive
policy framework for the expansion of alternative dispute resolution.[688]
5.92
In 1992, a pilot mediation project (the Family Court Mediation Service)
was established in Melbourne to provide comprehensive mediation services in
addition to the existing conciliation services. The service was “comprehensive”
in that any issue in dispute could be made the subject of mediation.
Referrals under the project were voluntary. In 1994, the success of the pilot
project was assessed in a report issued by the Family Court of Australia
Research and Evaluation Unit.[689]
5.93
The evaluation report found that a critical factor which persuaded
parties to resort to mediation was a desire to avoid court proceedings and
their associated costs. 68% cent chose mediation to avoid court costs and the
adversarial nature of litigation, though 75% were prepared to go to court if
mediation did not settle the matter.[690]
Of the 82% of cases that achieved some measure of settlement in mediation, 71%
settled all matters in dispute and 11% settled one major matter. 87% of clients
reported satisfaction that the decision reached at the mediation was a fair
one. 79% felt that each party had an equal influence over the agreement, while
78% said that the mediated agreement was close to the legal information they
were given before the process began. Follow-up interviews some eight months after
agreement confirmed that 86% of agreements were still in place. Of the 14% that
were not, most were re-negotiated through a lawyer, with only one case
requiring court intervention. In contrast, 42% of clients who failed to reach a
mediated agreement needed a court hearing. It should be noted that 51% of the
referrals were from a solicitor or legal aid, 24% were from the family court
staff, and 13% from other agencies, which included legal advice centres. 65% of
female clients and 54% of male clients had consulted or retained a lawyer at
the time they attended mediation. The evaluation report found that mediation
was most successful when carried out before proceedings have issued.[691]
(i)
Phasing in Mandatory Mediation
5.94
In 2006 the Australian Government instituted a major transformation of
the family law system. It included the phasing in of mandatory mediation for
separating couples through significant amendments to the Family Law Act 1975
by the Family Law Amendment (Shared Parental Responsibility) Act 2006. The
2006 Act places increased emphasis on using mediation to resolve family law
disputes.
(ii)
Family Dispute Resolution
5.95
Section 10F of the Family
Law Act 1975 as amended by the Family Law Amendment (Shared
Parental Responsibility) Act 2006, defines a family dispute resolution as a process (other
than a judicial process):
(a) in which a family dispute resolution practitioner helps people
affected, or likely to be affected, by separation or divorce to resolve some or
all of their disputes with each other; and
(b) in which the practitioner is independent of all of the parties
involved in the process.
5.96
It is clear, therefore, that this includes mediation and conciliation.
The family dispute resolution practitioner must be accredited under the
accreditation rules set out in Act.[692]
Parents are able to attend family dispute resolution services at a range of
services including Family Relationship Centres, or at any other community,
private or government-funded service (such as legal aid commissions, community
justice centres or community legal centres) that have accredited family dispute
resolution practitioners.
5.97
From July 2007, parents must attend family dispute resolution and make a
genuine effort to resolve the dispute before applying for a Parenting Order
through the Family Court of Australia or Federal Magistrates Court. The courts
must not hear an application for a Parenting Order unless the applicant files a
certificate from a family dispute resolution practitioner.[693]
This requirement does not apply where there is family violence or abuse or the
risk of family violence or abuse.
5.98
A family dispute practitioner may give those attending dispute
resolution one of the following certificates:
·
A certificate stating that the party did not attend dispute resolution
as a result of the refusal or failure of other parties to the proceedings to
attend;
·
A certificate stating that the person did not attend dispute resolution
because the practitioner considered that it would not be appropriate to conduct
the proposed dispute resolution;
·
A certificate stating that the person attended with the other parties to
the proceedings and all attendees made a genuine effort to resolve the dispute;
·
A certificate stating that the person attended with the other parties to
the proceedings but that the person, or other parties, did not make a genuine
effort to resolve the dispute.
5.99
A family dispute resolution practitioner is required to keep
communications confidential – except in certain circumstances, such as where
the party gives consent, or to prevent a serious threat to someone’s life or
health or to prevent the commission of a crime. A family dispute resolution practitioner
must also report child abuse.
5.100
It is expected that from July 2008 all applications to the court in
children’s matters, including subsequent interim applications in an ongoing
matter, will be subject to the compulsory primary dispute resolution
requirement. Exceptions are where the parties are consenting to the orders
sought, there is risk of abuse or violence if the application is delayed, in
circumstances of urgency, where one or both parties is incapable of
participating in primary dispute resolution processes, if the application
relates to a contravention or where the application deals with an issue in
relation to which an order has been made in the previous 12 months.
(iii)
Family Consultants
5.101
A court may order one or more parties to the proceedings to attend an
appointment (or a series of appointments) with a family consultant. The court
may make this order on its own initiative or on the application of a party to
the proceedings or a lawyer independently representing a child’s interests.[694]
5.102
The functions of family consultants are to provide services in relation
to proceedings including:
(a) assisting and advising people involved in the
proceedings;
(b) assisting and advising courts, and giving evidence,
in relation to the proceedings;
(c) helping people involved in the proceedings to
resolve disputes that are the subject of the proceedings;
(d) reporting to the court
(e) advising the court about appropriate family
counsellors, family dispute resolution practitioners and courses, programs and
services to which the court can refer the parties to the proceedings[695]
5.103
Communications with
family consultants are not confidential.[696]
(iv)
Family Relationship Centres
5.104
To assist the family dispute resolution process the Australian
Government committed itself to establish 65 Family Relationship Centres (FRCs)
across Australia. The FRCs are not established by the 2006 Act, but they form
the centrepiece of implementing the Federal Government’s new family law system.
This new network will underpin a fresh approach to the family law system,
putting the emphasis on reaching agreement at a much earlier stage in the
separation process, rather than waiting until conflict becomes entrenched and
relationships severely deteriorate.
5.105
FRCs attempt to assist separated parents to make a genuine effort in
resolving their children’s disputes before commencing litigation. Through the
centres, separating parents will have free access to information, advice and up
to three hours of dispute resolution sessions with a parenting advisor to help
resolve disputes and reach agreement on parenting plans. It is envisaged that
FRCs will be recognised as single entry points into the process of mediation
and other processes resolving family disputes.[697]
5.106
The centres will also assist couples to access pre-marriage education
and help families who are experiencing relationship difficulties with
information and access to family skills training and support. An important aim
of the centres will be to assist fathers in maintaining a substantial role in
their children's lives immediately following a relationship breakdown.
(d)
Canada
5.107
In Canada, mediation has been connected with the formal legal process
for 30 years. The first court-connected family mediation service in Canada was
launched in 1972 with the establishment of the Edmonton Family Court
Conciliation Project. Since then, mediation services offering various programmes
have been introduced in all 10 Canadian provinces.[698]
Court-connected family mediation programmes have centred on private law
disputes which result from divorce or spousal separation. Most of the services
have been dedicated to the child-related issues of custody, access and child
support but some have expanded into other areas. Mediation services in New
Brunswick, Ontario, Quebec and Saskatchewan also encompass at least some issues
relating to property division between spouses, and financial arrangements.[699]
5.108
In several Canadian jurisdictions, the role of mediation in assisting to
resolve family law matters is recognised in legislation. Federally, the Divorce
Act 1985 that every lawyer who acts in a divorce case has
the duty to inform the spouse of mediation facilities that might be able to
assist the spouses in negotiating the matters that may be the subject of a
support order or a custody order.[700]
In Ontario,[701]
Newfoundland,[702] and the
Yukon[703]
legislation expressly authorises the court to appoint a mediator to deal with
any matter that the court specifies. In each of these jurisdictions, the order
appointing the mediator must be made at the request of the parties who also
select the mediator. Saskatchewan legislation is similar except that the order
may be made on the application of either party and the court may choose the
mediator provided that the person appointed has consented to be named.[704].
In 1993, Quebec amended the Code of Civil Procedure to permit the court
to adjourn a contested family matter and refer the parties to mediation where
the parties consent.[705]
(i)
Child Protection Mediation Programme
5.109
The Child Protection Mediation Programme was established in 1997 under
the Child Family and Community Service Act 1996. Section 22 of the 1996
Act states:
“If a director and any person are unable to resolve an issue
relating to the child or a plan of care, the director and the person may agree
to mediation or other alternative dispute resolution mechanisms as a means of
resolving the issue.”
5.110
Parents and the director can choose to use mediation when there is a
disagreement regarding the care of a child. It can be used to resolve a number
of issues, including: what services the family will receive and participate in
as part of the plan of care; the length of time the child will be in the
director’s care; the amount and form of access the parent or others have with
the child; the specific terms of a supervision or access order; or other
matters relating to the care or welfare of a child. Section 23 of the 1996 Act
provides that if the proceedings are adjourned for mediation, any time limit
applicable to the proceeding is suspended. Once the parties agree to try
mediation, they must select a mediator from the Child Protection Mediation
Roster.[706]
(ii)
Family Mediation Practicum Project, British Columbia
5.111
The Family Mediation Practicum Project has been operating in New
Westminster, British Columbia since January 2004 and provides free mediation
services for family disputes about custody, access, guardianship, child
support, and simple property matters. One of the objectives of the project is
to expand the number of qualified family mediators in British Columbia. In the
project, one mediator is guided by a senior, highly trained mediator (or
mentor), who assists the mediator to prepare for and conduct each session. An
evaluation of the Project in 2005 found that the project had successfully
achieved all of its objectives. Exceptionally high satisfaction ratings were
reported by clients who participated in mediation by mediators and by project
mentors.[707]
(iii)
Québec
5.112
Since 1997, couples in Quebec with children may obtain the services of a
professional mediator during the negotiation and settlement of their
application for separation, divorce, dissolution of the civil union, child
custody, or spousal or child support, or the review of an existing decision.[708]
5.113
The spouses must attend an information session if they disagree on one
or more of the following issues: child custody; access rights; the amount of
spousal or child support; other rights resulting from the marriage or civil
union. Before the case is heard by the court, the spouses are required to
attend an information session on mediation. This session may take place either
before or after an application is submitted to the court. The spouses may then
choose to continue on with the mediation process or to go before the court. A
spouse required to attend an information session who fails to attend without a
valid reason may be ordered to pay all costs relating to the application that
is submitted to the court.
5.114
At a certain point during the examination of a contested application,
the court may decide it is appropriate to order the spouses to undertake mediation.
Spouses may choose their own mediator. However, to obtain mediation free of
charge, they must choose a mediator whose fee corresponds to the rate
prescribed by law. If the mediator charges a different fee, the spouses must
pay all the mediation costs. In the case of a couple
with children, the Service de médiation familiale will pay the mediator's fee
for six sessions (including the information session if applicable). However, if
the mediation concerns the review of an existing court judgment, the Service
will pay for only three sessions (including the information session if
applicable).
(e)
New
Zealand:
(i)
Judicial Mediation conference
5.115
Judicial mediation conferences are available in New Zealand for parties
under the Family Proceedings Act 1980 where a party has applied for a
separation or maintenance order, or for a custody or access order. Mediation
conferences may also be convened under section 170 of the Children, Young
Persons, and their Families Act 1989.
5.116
Judicial mediation conferences usually take place once parties have
attended counselling if issues remain outstanding.[709]
Mediation conferences are chaired by a Family Court Judge. Parties may request
a judge-led mediation, or the court can direct them. The mediation conference
is often preceded by the preparation of specialist reports. These reports are
available to the Chairman (who is a Family Court Judge), the lawyers, and
usually the parties. If this does not resolve the matter, a hearing date may be
set. Even then, cases are sometimes resolved at a pre-trial conference. In care
and protection cases, the child can request a mediation conference. If a child
requests a mediation conference, the Court must arrange one.[710]
Family Court judges held approximately 3000 mediation conferences in 2000.[711]
5.117
In response to the New Zealand’s Law Reform Commission Report on
Dispute Resolution in the Family Court recommendation that non-judge-led
mediation be introduced into the Family Court as part of a new conciliation
service, the Government established a family mediation pilot. Family mediation
was piloted in North Shore, Hamilton, Porirua and Christchurch Family Courts
between March 2005 and June 2006.[712]
5.118
The four pilot courts adopted different practices with respect to
referral. In Christchurch, referral to family mediation was the ‘default’
option, and the referral was discontinued if it was subsequently determined to
be not appropriate. This court completed the most mediations. In the other
pilot courts the practice tended to be that cases were identified as
appropriate for family mediation by the Family Court Coordinator (FCC) using
the guidelines provided, or were referred by judges, or were recommended for
family mediation by counsel or counsellors.[713]
5.119
A study was undertaken to enable the Ministry of Justice in 2007 to
identify any implementation issues, assess the costs of the pilot, and assess
the experiences of the various participants, including their satisfaction with
the process. It considered matters such as referrals and attendance, immediate
outcomes of mediation and returns to court by the parties.[714]
5.120
From March 2005 to June 2006, 540 Family Court cases were offered family
mediation and of these, 380 (70%) were referred to mediators. Of the 380 cases
referred to mediation, 354 (93%) entered pre-mediation, and 321 (84%) completed
pre-mediation. Of those who completed pre-mediation, 284 cases (88%) proceeded
to mediation, and 37 (12%) did not. The main reasons for cases not proceeding
to mediation at this point were that the parties settled matters before the
mediation took place or one party was reluctant to proceed.[715]
5.121
Data supplied by the Ministry of Justice based on an analysis of direct
costs to the end of April 2006 showed that the average cost of a mediation was
$777.16 and in 7% of cases the cost of mediation exceeded $800. In 56% of cases
a lawyer for the child was appointed for the mediation (in addition many cases
referred to mediation had a lawyer for the child appointed already and the
average cost of lawyer for child appointed for the mediation was $943.48.[716]
The length of mediations ranged from 1.5 hours to 7.5 hours. According to
mediator case reports, 33% mediations were completed within three hours and 50%
took between three and four hours.[717]
5.122
Of the 257 completed mediations, agreement was reached on all matters
being mediated in 59%, and agreement was reached on some matters in a further
30%. The most common reason for achieving only partial agreement was that the
level of trust between the parties was so low that one or both required
evidence that the other party was prepared to make agreements work, before they
were prepared to make concessions on all disputed issues.[718]
Consent orders were sought in 68% of cases in which all or some agreement was
reached. In only 13 mediations (5%) was no agreement reached. In most cases,
mediators believed that this was because one party was unwilling to compromise
or to put the children’s needs ahead of their own.[719]
5.123
Given the mediation pilots success, a Family Courts Matters Bill 2008
was introduced as the legislative vehicle allowing for the Courts to direct
attendance at mediation and to implement the pilots on a permanent basis.[720]
The 2008 Bill does not propose to change the existing judicial mediation
process under the Family Proceedings Act 1980. This would see the
options of either judicial or non-judicial mediation working side by side.
(f)
Hong
Kong
5.124
Divorce is a growing problem in Hong Kong. The number of divorce cases
has increased sharply over the past two decades. In 1981, 2,811 divorce
petitions were filed. The figure rose to 6,767 in 1990 and to 13,737 in 2001.[721]
5.125
In 1997, the Chief Justice of Hong Kong appointed a Working Group to
consider a pilot scheme for the introduction of mediation into family law
litigation in Hong Kong. In its report completed in 1999, the Working Group
recommended that a three-year pilot scheme be run to test the effectiveness of
mediation in resolving matrimonial disputes in Hong Kong.[722]
Other recommendations of the Working Group included:
·
Litigants should be given the choice of mediators from a list of those
qualified, including mediators from the Social Welfare Department,
non-government organisations and those from private practice;
·
A certain number of mediation sessions should be provided free of charge
under the pilot scheme to encourage litigants to try the service;
·
A post of full-time Mediation Co-ordinator, with the support of a
full-time secretary and a clerk, should be created;
·
The Mediation Co-ordinator's Office should be accommodated in the Family
Court to give a clear indication to legal practitioners and litigants of the
court's full support for mediation; and
·
As lawyers were expected to be the chief agents for referral to
mediation, it was recommended that lawyers should be obliged to advise their
clients of the availability of mediation services and to give information
leaflets on mediation prepared by the Co-ordinator to their clients. As proof
of this, it was recommended that lawyers should be required to file with the
court a "Certificate as to Mediation" form. It was recommended that
the Certificate should be introduced by way of a Practice Direction issued by
the Chief Justice.[723]
5.126
In June 1999, the Mediation Coordinator’s Office (MCO) was set up to
implement a pilot scheme funded and monitored by the Judiciary and the pilot
was launched in 2000.[724]
5.127
In accordance with the recommendations of the Working Party on the Pilot
Scheme, a consultancy study was commissioned part-way through the scheme to
evaluate a number of aspects of the service provided. The main findings were:
·
Between May 2000 and November 2001, 1,670 people attended 294
information sessions through the service. 87% of the attendees went through
initial assessment in the Mediation Co-ordinator’s Office (MCO), which resulted
in 547 cases being referred out for mediation service.
·
Approximately 60% of the cases had completed initial assessment for
suitability for mediation, and had been referred to mediators by the MCO,
within a month.
·
About 75% of the cases took less than 3 months for the mediators to
complete.
·
Of the 458 cases completed between May 2000 and November 2001, 71.4%
reached full agreement and another 8.5% reached partial agreement. On average,
it took 10.18 hours to reach a full agreement, 14.35 hours to reach a partial
agreement and 6.3 hours to reach no agreement between the parties using the
mediation service.
·
Almost 80% of the respondents indicated that they were “satisfied” or
“very much satisfied” with the mediation service they received.
·
More than 60% of the respondents agreed that they were able to discuss
disputed issues with their spouses through mediation in a peaceful and
reasonable manner.[725]
5.128
The study concluded that there was considerable evidence that family
mediation was a viable option for family dispute resolution in Hong Kong. The
study therefore recommended that the Administration should consider continuing
to fund the scheme for family mediation service on a long-term basis.[726]
It was also recommended that applicants for legal aid in matrimonial cases
should be required to attend information sessions at the Mediation
Co-ordinator’s Office.
5.129
The study found that provision of a totally free mediation service might
not be in the best interests of the users, and that some fee-charging was
acceptable and might increase the motivation of service users to make better
use of the service. It was therefore recommended that, if family mediation were
to be offered on a long-term basis, a fee-charging mechanism could be
introduced for users able to afford the service.[727]
F
Collaborative
Lawyering
5.130
Collaborative lawyering is an emerging method of dispute resolution for
separating or divorcing couples, where the parties and their lawyers agree to
resolve the issues without litigation.[728]
5.131
The Commission considers collaborative lawyering to be an advisory ADR
process.[729] Like
mediation, collaborative law helps parties resolve their dispute themselves
rather than having a ruling imposed upon them by a court or arbitrator. The
lawyers’ role is to guide and advise the parties towards a reasonable
resolution. While legal advice is an integral part of the process, all the
decisions are made by the husband and wife.[730]
5.132
The essence of the process is that the best interest of the spouses and
their families is served by trying to resolve these disputes in a
non-confrontational way. This is achieved by way of informal discussions
with each party, ensuring their direct influence on the outcome. The
ultimate aim is to avoid the use of court in family law cases.[731]
5.133
The Legal Aid Board, which promotes and trains solicitors in the
collaborative law process, suggests that collaborative law provides the
following advantages to clients:
·
Provided everyone enters the process in good faith, the process is
faster and less acrimonious than court proceedings;
·
Clients can set their own agenda according to what matters most to them
and their family;
·
Clients have a greater degree of control over the process, including the
pace at which negotiations take place;
·
The process is likely to be far less stressful than court proceedings,
which are widely regarded as being one of the most stressful events that a
person can encounter. With collaborative law there should be no surprises and
each party should know what to expect; and
·
If the process is successful there will be an agreement between the
couple which will be a more effective basis than a court imposed solution, for
maintaining an ongoing relationship for the benefit particularly of any
children.[732]
5.134
In relation to cost, it has been suggested that in 2006 the average cost
for each party undergoing the collaborative law process is approximately €6,000
plus VAT. By contrast, an average case that proceeds to the Circuit Court, even
if settled, costs each party about €12,000.[733]
It is important to note, however, that collaborative law process may not always
work. One party may opt for it in the belief that it is cheaper, rather than
because they have a strong commitment to the process and finding a mutually
acceptable solution. Where the process is terminated without an agreement being
finalised, the parties may have to initiate litigation with an additional set
of legal costs.[734]
5.135
An Association of Collaborative Practitioners (ACP) has been established
in Ireland. [735] The aims of the ACP are stated to be:
·
To promote collaborative law as a mechanism for settling disputes;
·
To support practitioners by providing documentation and ethical
guidelines for the practice of collaboration; and
·
To provide training and peer review structures for collaborative
practitioners.[736]
5.136
By 2007, 140-150 lawyers had been trained in collaborative lawyering in
Ireland.[737] One of the
first collaborative law cases in Ireland was dealt with in the High Court in
2008. The parties involved were business people who married in 1987, had three
children and separated in 2003. They signed a deed of separation which involved
a 50/50 split but they never implemented it and their finances remained
interwoven. To resolve their financial arrangements in the context of divorce
proceedings the couple engaged in the collaborative law process and entered
into a participation agreement and successfully resolved all their issues.[738]
(1)
The
Collaborative Process
5.137
Both the clients and the solicitors must agree to work together
respectfully, honestly and in good faith and both sides must sign a
legally-binding agreement to disclose all documents and information that relate
to the issues, early, fully, and voluntarily. Neither party may go to court, or
even threaten to do so, when they are working within the collaborative law
process.[739] Should the
process end, both solicitors engaged for a collaborative law representation may
never go to court for the clients who retained them in a representative
capacity or as witnesses to such litigation.
5.138
The Commission considers that there are a number of duties which should
be imposed on solicitors involved in the collaborative process. These include
·
A duty to screen clients. The Commission considers collaborative
lawyering to be inappropriate for resolving family disputes where domestic
violence is alleged, where there are allegations of child sexual or physical
abuse, where one of the parties suffers from alcohol or drug dependency, or
where power imbalances exist between the parties; and
·
A duty to withdraw from further representation if the collaborative law
process is terminated.
5.139
The parties and solicitors engage in ‘4-way’ meetings to resolve the
issues. Once issues are agreed, the lawyers then complete the paperwork, for
example, the deed of separation or the terms of consent to be approved by the
court in the context of a judicial separation or a divorce. If the process
needs to be postponed for any reason, there is the possibility of seeking
outside assistance by way of further professionals such as counsellors,
accountants, auctioneers or arbitrators and the process can be suspended to
facilitate such intervention. In a collaborative law separation or divorce it
is only when all of the issues have been agreed that the case is ruled in court
as a consent matter.[740]
5.140
The process requires that the participants focus on the interests of
both clients, gather sufficient information to insure that decisions are made
with full knowledge, create a full range of options, and then choose flexible
options that best meet the needs of the parties. The structure creates a
problem-solving atmosphere with a focus on interest-based negotiation and party
empowerment.[741]
5.141
Proponents of collaborative law suggest this approach reduces legal
costs, expedites resolution, leads to better, more integrative solutions and
enhances personal and commercial relationships.[742]
(2)
Participation
Agreement
5.142
The cornerstone of collaborative lawyering is the “participation
agreement.” Prior to a party choosing the process, the lawyer and client review
the participation agreement and can be likened to a mediation agreement which
sets out certain fundamental provisions. The core provision mandates that both
solicitors are precluded from representing their respective clients in the
event the case reaches impasse or in the event either party chooses to withdraw
from the process.
5.143
The parties also contract to provide complete, honest and open
disclosure of all relevant information. The standard is that there must be full
disclosure, whether the information has been requested or not. There is an
affirmative duty to disclose and failure to do so will result in a termination
of the process. Confidentiality of communications is central to the
collaborative law process. Typically, in order to promote productive
negotiations participation agreements also provide that communications during
the process are confidential. The participation agreement may also include a
provision that the parties may choose to jointly retain an expert, such as a
business valuation specialist as a neutral, and that the expert cannot be
called to testify absent both parties specific waiver of the neutral expert
provision.[743]
5.144
There are no statutory guidelines in Ireland in relation to what should
be included in a participation agreement. It has been suggested that at a minimum
the participation agreement must:
·
Be in writing;
·
Describe in reasonable detail the dispute that is the subject of the
process;
·
Describe the process of collaborative lawyering; and
·
Be signed by both the parties and the solicitors engaging in the process
5.145
The following core provisions have also been suggested to be included:
·
A Party has the right to unilaterally terminate the process at any time
and for any cause or reason or no cause or reason by written notice.
·
Solicitors for all parties must withdraw from further representation if
the process is terminated.
·
Any solicitor associated in the practice of law with the solicitor who
represented a party in the process is disqualified from representing any party
in any proceeding or matter substantially related to the dispute;
·
Parties will make timely, full, candid and informal disclosure of
information reasonably related to the dispute and have an obligation to
promptly update information previously provided in which there has been a
material change;
·
Parties will jointly retain neutral experts who are disqualified from
testifying as witnesses in any proceeding substantially related to the dispute;
and
·
Collaborative Law communications are confidential.[744]
(3)
Developments
in Other Jurisdictions
5.146
The International Academy of Collaborative Professionals (IACP) is an
international body promoting the practice of collaborative law internationally.
It has 2,458 members drawn from 9 countries and sets out training standards for
those involved in collaborative law.[745]
Whilst the highest concentration of collaborative lawyers is in family law, the
collaborative process is also used in other areas of law. For example, in
Massachusetts it is used in resolving commercial disputes. Similarly, Texas is
considering extending the practice of collaborative law into other areas of
civil law.[746]
(a)
United
States of America
5.147
The practice of collaborative family law was developed in 1990 by a US
attorney Stu Webb. As an alternative to litigation, Webb developed a dispute
resolution model that had settlement as its focus. If settlement could not be
reached Webb would withdraw. Within two years he had handled almost 100 cases
on a collaborative basis.[747]
5.148
Collaborative law is now widespread in the United States. Associations
that represent the interests of collaborative practitioners have been formed in
more than half of the States. The National Conference of Commissioners on Uniform State
Laws (NCCUSL) is developing a Uniform Collaborative Law
Act which is modelled on the Uniform Mediation Act. The first draft
of the Act was released in October 2007.
5.149
In 2001, Texas became the first US State to enact legislative provisions
recognising the use of collaborative law in family disputes.[748] The statute
defines collaborative law as
“a procedure in which the parties and their counsel agree in
writing to use their best efforts and make a good faith attempt to resolve
their dissolution of marriage dispute on an agreed basis without resorting to
judicial intervention except to have the court approve the settlement
agreement, make the legal pronouncements, and sign the orders required by law
to effectuate the agreement of the parties as the court determines
appropriate. The parties' counsel may not serve as litigation counsel
except to ask the court to approve the settlement agreement.”
5.150
Legislative change was necessary in Texas because, once a family dispute
is filed with the court, judicial time limits begin to run. In other words,
before the amendments were made, parties who filed a family dispute in court
and then decided to attempt collaboration could be prevented from proceeding to
trial because certain time limits had passed. The effect of the amendments to
the Texas Family Code is to stay court time limits that may otherwise apply,
until the collaborative process is concluded. and it allows for a stay of up
180 days.[749]
5.151
Collaborative law services have been available in California since 1993.[750]
In 2000, Hitchens J, the residing family law judge of the San Francisco
Superior Court established the Collaborative Law Department of the Superior
Court. In her view, collaborative law “empowers people to resolve their own
disputes, and to do it in a more creative and more lasting manner than has ever
been achieved by a court order.”[751]
After consulting with collaborative lawyers in San Francisco, Hitchens J felt
that that the best way for the Superior Court to demonstrate its support for
collaborative law was to establish a department within the court to encourage
and support the process.[752]
5.152
All collaborative law cases in San Francisco are now assigned to the
department, a process which serves three main purposes. First, collaborative
lawyers can go to the department to file routine documents such as
collaborative contracts. Second, the department is staffed by judges who are
well informed about the collaborative process and can assist lawyers and their
clients to resolve difficult issues without having to join the queue of
ordinary cases needing the court’s attention. Third, the department plays an
enforcement role with respect to the collaborative contracts by encouraging the
parties to abide by the terms of their contract and handling any applications
arising from an alleged breach of the contract.[753]
5.153
In 2000, the Family Law Section of the North Carolina Bar Association
established a Collaborative Law Committee. Legislative provisions recognising
collaborative law as a means of resolving family law matters were enacted in
North Carolina in 2003. The relevant legislation is expressed in similar terms
to the Texas Family Code. The principal difference is it is more detailed than
its Texan counterpart.[754] Parties
engaging in the collaborative process and their legal representatives must sign
a collaborative law agreement which provides for the withdrawal of the legal
representatives if the dispute cannot be resolved collaboratively and the
parties decide to litigate. Provided that the agreement is validly executed,
all legal time limits will then be suspended for the duration of the
collaboration.[755] This
allows cases to proceed on a collaborative basis and at a pace that suits the
parties involved. It describes collaborative law as
“A procedure in which a husband and wife who are separated
and are seeking a divorce, or are contemplating separation and divorce, and
their attorneys agree to use their best efforts and make a good faith attempt
to resolve their disputes arising from the marital relationship on an agreed
basis. The procedure shall include an agreement by the parties to attempt to
resolve their disputes without having to resort to judicial intervention,
except to have the court approve the settlement agreement and sign the orders
required by law to effectuate the agreement of the parties as the court deems
appropriate. The procedure shall also include an agreement where the parties'
attorneys agree not to serve as litigation counsel, except to ask the court to
approve the settlement agreement.”
5.154
Under the statute, a collaborative law agreement must be in writing,
signed by all the parties to the agreement and their attorneys, and must
include provisions for the withdrawal of all attorneys involved in the
collaborative law procedure if the collaborative law procedure does not result
in settlement of the dispute.[756]
It also provides that all statements, communications, and work product made or
arising from a collaborative law procedure are confidential and are
inadmissible in any court proceeding. “Work product” includes any written or
verbal communications or analysis of any third-party experts used in the
collaborative law procedure.[757]
(b)
Australia
5.155
In 2006, the Family Law Council prepared a report for the
Attorney-General on Collaborative Practice in Family Law. The report
recommended that:
·
A working group be established to develop national guidelines for
collaborative practice in family law;
·
The Law Council of Australia should consider developing and
disseminating information about collaborative practice and lists of
collaborative practitioners to Family Relationship Centres and community‑based
service providers of family dispute resolution;
·
The Family Law Act 1975 should be amended to provide for courts
exercising family law jurisdiction to have jurisdiction in relation to
enforcement of collaborative contracts concerning family law disputes; and
·
The Family Law Act 1975 should be amended to provide
confidentiality of communications in the collaborative process.[758]
(4)
Conclusion
5.156
The Commission acknowledges that, although collaborative law is an
emerging ADR process, it has a capacity to provide another method to assist in
the resolution of family disputes in certain circumstances. Given that it is a
relatively new process in Ireland, the Commission emphasises the need to ensure
that those engaged in the process are trained in the collaborative process.
This involves learning not only the collaborative model, but also the new
skills needed to work with clients and the lawyer representing the other spouse
to try and get the best result for both spouses and the family. Another issue stemming
from collaborative lawyering is the ethical and professional problems which may
arise and whether the parties’ best interests are fully served by the
solicitors.[759] In this
context the Commission would welcome submissions as to whether a statutory Code of Practice or
Guidelines for collaborative lawyering should be introduced.
5.157
The Commission invites submissions as to
whether a statutory Code of Practice or Guidelines for collaborative lawyering
should be introduced.
G
Case
Conferencing in Family Law Disputes
5.158
A pilot case conferencing initiative to assist with the resolution of
family law cases commenced in Limerick Circuit Court in October 2006. The case
conference is, by agreement, a meeting held by the County Registrar with the
solicitors for both parties which takes place after court proceedings have been
issued. The purpose is to narrow the issues for trial or to facilitate
settlement of some or all of the issues between the parties.[760]
5.159
The County Registrar can make certain court orders, for example on the
time for filing of documents, inspections of property, interim maintenance and
access orders, and orders for discovery. Cases which have gone through the case
conferencing procedure and are either settled or where some issues remain to be
dealt with by the court are then fast tracked to a judge for hearing or to make
any necessary orders.[761] After each
case conference, an order is prepared and put on the file with a copy sent to
each party. This is very important for the parties, both to confirm what was
agreed and to indicate what action is to be taken with regard to any orders
made, and also to ensure the confidentiality of the whole hearing.[762]
5.160
An example of a case conference which was resolved at Limerick Circuit
Court involved a case where there were two sets of proceedings involving a
husband and his former and current wife. The former wife had reared a family
and the parties had been divorced in England. The current wife sought permanent
barring orders and financial reliefs. At the case conference, it transpired
that the former wife was seeking the transfer from the husband into her own
name of the family home and the site adjoining it. The current wife had no
dispute with the former wife and relinquished any claim over these assets. By
consent, property adjustment orders were made to that effect.[763]
5.161
The Commission understands that the Circuit Court Rules Committee has
agreed a draft set of Family Law Case Progression Rules with the aim of
ensuring that proceedings are prepared for trial in a manner which is just,
expeditious and likely to minimise costs. The new rules will assign functions
to the County Registrar currently dealt with by the Court in order to relieve
Circuit Court judges of a large pre-trial applications caseload. It is also
anticipated that the case progression hearing would facilitate parties in
reaching agreement on issues in dispute.[764]
5.162
The Commission provisionally recommends the
extension to all Circuit Courts of case conferencing in family disputes by
County Registrars.
H
Government
Initiatives in England and Wales
5.163
In a 2004 Green paper entitled Parental Separation: Children’s Needs
and Parents’ Responsibilities[765]
the UK Government, in conjunction with senior judiciary and rule committees in
England and Wales, proposed to review relevant rules and Practice Directions in
order to give the strongest possible encouragement to parties to agree to
mediation or other forms of dispute resolution and to fund this mediation
through legal aid. The respondents to the Green Paper agreed on the importance
of mediation but, while some of them considered that mediation would not be
effective if it is not made compulsory, others considered that mediation would
not work if parents were forced to attend.
5.164
In 2005, the Government stated that it did not plan to make mediation
compulsory, but would strongly promote its use; that it would work with the
senior judiciary to find the best way to encourage parties to attend mediation
and that it would look at other ways of involving children in mediation and
developing new models of child-focused mediation.[766]
(1)
Family
Mediation Helpline
5.165
The Family Mediation Helpline began operating in 2006. Trained operators
provide information about family mediation, determine whether mediation is
suitable for particular cases and examines the likelihood of eligibility of
parties for public funding. There has been a gradual increase in the number of calls
made to the Family Mediation Helpline in 2007. In a 12 month period,
approximately 3,500 calls were made, and over 30% of calls have been referred
to mediation services.[767]
(2)
Mediation
Week
5.166
Mediation week is an awareness campaign centred in civil and family
courts throughout England and Wales. First held in October 2005 and repeated in
2006, it involves local mediators working with court staff and Legal Services
Commission representatives on a number of initiatives aimed at raising the
profile and understanding of mediation amongst the judiciary, court staff,
legal professionals, advice agencies and the general public.
(3)
Public
Awareness Campaign
5.167
In terms of public awareness, the HMCS produced a series of userfriendly
guides to mediation, various web-based materials were developed, and a number
of interviews for local radio and advice on improving existing information were
carried out. Articles were placed in the press and information was distributed
in supermarkets and advice was provided to mediators on self-promotion.[768]
This was intended to increase the number of cases being mediated and increase
the national awareness of mediation.
I
Mediating
Family Probate Disputes
5.168
The Commission turns to examine a particular aspect of family
proceedings, namely, probate (wills) disputes. It is clear and unfortunate that
grief associated with the death of a loved one creates tensions, and legal
proceedings may follow from misdirected anger over the death. Death may cause
dormant family disputes to resurface and a dispute supposedly over property may
in fact be a dispute over family relationships.
5.169
Disputes may arise because family members have different views of a fair
distribution of a deceased love one’s property. For example, one of the
deceased’s children may regard equal distribution among all the children as
fair, while another child may believe that he or she should have received more
because of care given to an older or incapacitated parent. A dispute may arise
between children of one marriage and the surviving spouse of a later marriage.
The deceased person’s children may view the property as theirs, while a
surviving spouse may feel a right to a sizable portion of the property.
5.170
In addition, disputes over wills have the capacity to descend into
fights for control of the family silver or other less (financially) valued
items. Solicitors frequently find themselves working on difficult probate
disputes, while at the same time trying to maintain a good ongoing working
relationship with the family. Unfortunately, neither is easy when emotions are
running high, and the administration of an estate can often take much longer
than it should.[769]
5.171
Where probate (will) disputes are litigated, the applicants will often
base their claim on section 117(1) of the Succession Act 1965 which
states that the Court will determine whether testator has failed in his or her
“moral duty to make proper provision for the child” in accordance with his
means, whether by the will or otherwise.[770]
In making an order under section 117, a Court must, in accordance with section
117(2):
“consider the application from the point of view of a prudent
and just parent, taking into account the position of each of the children of
the testator and any other circumstances which the court may consider of
assistance in arriving at a decision that will be as fair as possible to the
child to whom the application relates and to the other children.”
5.172
An order made under section 117 cannot, however, affect the legal right
share of the spouse of the deceased, or, if the spouse is a parent of the
child, any gift that has been left to the spouse of the deceased, or any share
on intestacy to which he or she would be entitled (this might arise where, for
example, a testamentary gift and/or the residuary gift fails and falls to be
distributed on intestacy). This is why most section 117 claims are brought in
respect of the last will of the second parent to die.[771]
5.173
The Commission considers that there are good grounds for suggesting that
applications under section 117 of the Succession Act 1965 should be
brought before a judge very early in the proceedings so that the availability
of mediation is made known to the parties. For that reason the Commission has
provisionally concluded that a
Court should adjourn proceedings when appropriate to allow parties to a dispute
arising under section 117 of the Succession Act 1965 to consider
mediation.
5.174
The Commission provisionally recommends that a
Court should adjourn proceedings when appropriate to allow parties to a dispute
arising under section 117 of the Succession Act 1965 to consider
mediation.
J
Conclusion
5.175
The Commission concurs with the comments of the President of Ireland
that:
“The old adversarial model of a day in court with a
winner and a loser was never designed effectively to address the profound human
needs and vulnerabilities at the heart of family relationships and indeed even
the most redeemed family law model has stark limitations to the difficulties
and problems it can realistically address and help resolve.”[772]
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.
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.[773]
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.”[774]
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.
(d) The success rate is lower than in other personal injury
litigation.
(e) The suspicion between the parties is more intense and the
lack of co-operation frequently greater than in many other areas of litigation.[775]
6.04
In Ireland, until the establishment of a Clinical Indemnity Scheme (CIS)
under the auspices of the States Claims Agency (SCA),[776]
various insurance and indemnity arrangements had meant that each defendant to a
claim - hospital, health board, consultant, hospital doctor, or nurse - was
represented by a separate legal team. The SCA has noted that “This led to an
unnecessarily adversarial approach to the resolution of claims, to duplication
of effort, considerably lengthened the time taken to process a claim and added
significantly to claims' costs.”[777]
6.05
The Clinical Indemnity Scheme (CIS) was established in 2002, in order to
rationalise pre-existing medical indemnity arrangements by transferring
responsibility for managing clinical negligence claims and associated risks to
the State, via the Health Service Executive (HSE), hospitals and other health
agencies. Under the scheme, which is managed by the SCA, the State assumes full
responsibility for the indemnification and management of all clinical
negligence claims, including those which are birth-related.[778]
(1)
Role
for ADR in Resolution of Medical Negligence Disputes: Alternative Dispute Remedies
6.06
Most legal actions in Ireland brought by patients against medical
professionals are based on the tort of negligence. The action’s principal
objective is to provide compensation to the patient.
6.07
Research has indicated, however, that patients often want a wider range
of remedies than litigation is designed to provide. As noted by Lord Woolf in
his 1996 Report Access to Justice, “Some victims want an explanation or
apology rather than financial compensation, but are forced into protracted
litigation because there is no other way of resolving the issues.”[779]
Mediation can provide parties to a medical dispute the opportunity to fashion
their own remedies to meet their individual needs.
6.08
Devlin v The National Maternity Hospital[780]
is an example of a case which might have benefited from mediation. In this case
the Supreme Court decided the plaintiff was not entitled to damages from the
defendant hospital for nervous shock over the retention in 1988 of some of the
organs of his stillborn daughter. Delivering
the main judgment, Denham J stressed that its decision in the proceedings was
“a decision of law” and “should not be read as an endorsement” of the abandoned
practice of the hospital in the 1980s which was “rooted in times long past” and
was based on policies that were paternalistic and inappropriate.[781]
The Supreme Court noted that grief or sorrow was not a basis to recover damages
and upheld the High Court’s decision that the plaintiff had not proved any
legally recognisable injury or loss to himself as a result of the organ
retention.[782]
6.09
The Devlin case deals with circumstances and policies that mirror
those which arose at the Alder Hey Children's Hospitals in Liverpool where the
hospital retained the organs of deceased children without the knowledge or
consent of their parents. The mediation of this dispute by the Centre for
Effective Dispute Resolution resulted in the families receiving an apology from
the hospital, in addition to compensation and a memorial for their children.[783]
Arguably, if the parties in Devlin had mediated that dispute, the
plaintiffs might have been afforded redress which was not available to them
through litigation.[784]
(a)
The Office of the Ombudsman
6.10
The following example of an investigation completed by the Ombudsman
provides a comparable example of the flexible remedies available for
complainants outside of the court system.[785]
Case Study: Medical Complaint to Ombudsman
Family members had sought
explanations from nursing and medical staff in a general hospital as to the
cause of their father's pain and discomfort after his admission. The family
stated that the treating doctor refused to give them information on their
father's condition and proposed treatment. Their father was subsequently
transferred to another hospital, where he died shortly after his admission as a
result of a ruptured aneurysm.
They family complained to the
Ombudsman that they were not informed of the nature and severity of their
father's condition and of the proposed treatment to alleviate it. The
investigation concluded that the family's concerns had not been adequately
addressed and the Ombudsman upheld their complaint. The outcome of the
Ombudsman’s recommendations included; the delivery of a personal apology to the
family; the establishment of a new management structure that would include
Consultant medical staff and so incorporate the role of the Consultant medical
staff into the complaints procedure; the establishment of a new programme of
nurse education in relation to best practice in the maintenance of nursing
notes; the establishment of a chart review and audit of nursing documentation
to determine effectiveness of the programme and generally to monitor documentation;
and the development of a new complaints procedure and an administrative
protocol relating to the respective roles and relationship of junior and senior
medical staff.
6.11
The Ombudsman commented as follows on this case:
“It is very important to note that the family in this case
did not pursue their complaint in a vindictive way or with a view to
litigation. In essence, all they were seeking were clear answers to their
questions about their late father's treatment, appropriate apologies for the
shortcomings they perceived and assurances that lessons would be learned for
the benefit of future patients and their relatives.”[786]
6.12
The Ombudsman provides, in this respect, an important and free
alternative for complainants who do not wish to litigate health care
grievances.
(2)
Flexibility
& Creativity of Mediation Agreements in Medical Disputes
6.13
One of the advantages of mediation is that parties can fashion their own
remedies. This provides scope for creating imaginative and non-legalistic
outcomes which meet the needs of the parties. In England and Wales a number of
such outcomes have emerged from mediations of medical disputes. These include:
·
“A fast-track IVF was agreed for woman who lost her child as a result of
a ruptured Caesarean scar, where her ability to conceive was said to have been
compromised;
·
An offer of future employment for the wife, soon to be a widow of a
cancer patient, who used to work for the hospital that had failed to spot his
lesion; involvement in the reviewing of departmental protocols and paperwork
and risk analyses;
·
Participation in discussions over changes in procedure and departmental
risk assessments.”
[787]
(3)
The
Power of an Apology
6.14
Society places a great value on apologies as a way of redressing wrongs.
“Apology leads to healing because through apologetic discourse there is a
restoration of moral balance – more specifically, a restoration of an equality
of regard.”[788] It
can be “…one of the most effective means of averting or solving legal
disputes”,[789] yet “it is an act very much outside
the traditional adversarial legal framework”.[790]
As noted by the former Ombudsman:
“If an apology is not provided, or is delayed, the
complainant is less likely to be satisfied: all too often a failure or
unwillingness to say ‘sorry’ at an early stage is the reason for complaints
proceeding further through the system than is really necessary or appropriate.
Apologies can be given without an admission of blame or liability in relation
to the substance of the complaint. At the same time, apologies should not be
used simply to brush complainants off. An apology, however gracious, without
answers or follow-up action and information, is not going to be sufficient response
to the most serious complaints.”[791]
6.15
This was also
emphasised by Peart J in O'Connor v Lenihan,[792] another
organ retention case, in which he stated:
“I feel that this case has not in fact been about the
recovery of damages. I have little doubt that no award of damages would be even
half as useful in easing [the plaintiffs’] feelings of anger and distress as a
forthright and sincere and appropriately tendered apology for the anger, hurt
and distress caused, however unintentionally at the time, by the retention of
their babies' organs, and perhaps an acknowledgement to the plaintiffs that the
failure to explain that organs and tissue might be retained was not these days
an acceptable way of dealing with such a situation. But the problem is that our
legal system is not conducive to such steps being taken by defendants exposed
to a claim for damages once fault might be seen to be acknowledged by such an
apology, and are inhibited from taking a step which perhaps in other
circumstances they would wish to take in order to assist those who have
suffered distress and hurt.”
6.16
As Peart J noted, it has been suggested that doctors, health
authorities, insurers and lawyers have been very reluctant to offer an apology
to the patient or their family for fear that it would be taken as an admission
of liability. To remove this fear various jurisdictions have introduced
statutory provisions for apologies.
6.17
Massachusetts was one of the first
States to introduce a statute creating a ‘safe harbour’ for apologies. Its
relevant provision states that:
“Statements, writings or benevolent gestures expressing
sympathy or a general sense of benevolence relation to the pain, suffering or
death of a person involved in an accident and made to such person or to the
family of such person shall be inadmissible as evidence of an admission of
liability in civil action.”[793]
6.18
The statute defines “benevolent gestures” as “actions which convey a
sense of compassion or commiseration emanating from humane impulses.”[794]
By the end of 2005, apology-immunity statutes had been passed in 19
states in the United States.[795] Empirical evidence is now emerging that supports the
view that apologies can reduce litigation and promote the early resolution of
disputes.[796]
6.19
All Australian states
have also introduced statutory protection for apologies in the context of
medical claims.[797]
Similarly, in British Columbia the Apologies Act 2006[798] was enacted to “make the civil justice system more accessible,
affordable and effective” and to “promote the early and effective resolution of
disputes by removing concerns about the legal impact of an apology.”[799]
6.20
Similarly, in England and Wales, section 2 of the Compensation Act
2006 states that “An apology, an offer of
treatment or other redress, shall not of itself amount to an admission of
negligence or breach of statutory duty.” As a result,
“the new statute enables an apology to be given, and remedial
and rehabilitation treatment to be given, without prejudice to any legal claim
which the patient may bring in the future, so that with any luck his sense of
grievance may be assuaged, his health improved despite his injury, and
litigation either becomes unnecessary or is settled at an early stage.”[800]
6.21
The Commission provisionally recommends that a statutory provision be
considered which would allow medical practitioners to make an apology and
explanation without these being construed as an admission of liability in a
medical negligence claim.
C
Professional
Conduct
(1)
Medical
Practitioners Act 2007
6.22
The Medical Practitioners Act 2007 substantially expanded the
grounds upon which a complaint may be brought for professional misconduct.[801]
Previously the Irish Medical Council (IMC) could hear complaints based on
alleged professional misconduct and fitness to practice by reason of physical
or mental disability. The 2007 Act provides for a number of additional grounds
including:
·
Poor professional performance;
·
Failure to comply with an undertaking;
·
A criminal conviction in the State or elsewhere; and
·
Failure to comply with a condition of registration or contravention of a
provision in the 2007 Act.[802]
6.23
The 2007 Act also establishes a Preliminary Proceedings Committee (PPC).
The PPC will filter complaints that are made against medical practitioners,
and, if it is deemed necessary, the committee will refer the complaint to the
Fitness to Practice Committee for hearing, if the PPC is of the view that there
is a prima facie case to warrant further action.[803]
6.24
The 2007 Act also introduces a new power to resolve conflicts by
mediation.[804] As noted
by Minister for Health during the Oireachtas debate on the 2007 Act:
‘‘Many
complaints are received by the Medical Council and other regulatory bodies
which can be resolved in a much more satisfactory manner through mediation or
discussion …We are introducing the concept of mediation in order to ensure that
the Fitness to Practise Committee is the process that is used for serious
issues only and that it is not used for what could be termed minor matters that
can be dealt with through dialogue, discussion or mediation… Under no
circumstances could one facilitate serious issues being resolved through
mediation. That would be neither in the patient’s interests nor the interests
of the profession.”[805]
6.25
Under s.62(1) of the 2007 Act the Council may prepare guidelines for
resolving complaints by mediation. No attempt to resolve the complaint through
mediation can be made without the consent of both the complainant and the
registered medical practitioner concerned.[806]
Where the practitioner consents to mediation, it is not construed as an
admission of any allegation.[807] Any
communications made during the course of the mediation are confidential and
cannot be used in any disciplinary, civil or criminal proceedings.[808]
The resolution of a complaint by mediation cannot include the payment of any
financial compensation.[809]
6.26
In addition, the Health Service Executive has also incorporated
mediation as a process for resolving complaints. The HSE’s Policy and
Procedure Manual for the Management of Complaints of the Health Service
Executive states that “As part of the investigation process and where
deemed appropriate by the Complaints Officer, mediation should be considered as
a means of achieving resolution where both parties agree to the process.”[810]
D
Developments
in England & Wales
6.27
In Burne v 'A'[811] the
parties in a medical negligence claim were advised by the English Court of
Appeal to enter into mediation with a view to ending the "anxious and
distressing case." Sedley LJ observed that the case "calls out for
alternative dispute resolution." He added that "both parties need to
take stock of their position and to enter into mediation in the light of it. No
further step should be taken in the remitted action until this has been
done."[812] Ward LJ
added:
"On the issue before us there are powerful arguments
either way and I express no view whatsoever as to the eventual outcome. I do,
however, feel very strongly that this is a case which must be referred to
alternative dispute resolution before it is restored for the re-trial. Both
parties should take stock of the strengths but also the weaknesses of their
respective cases which are now plain for all to see and I hope mediation will
bring a swift conclusion to a tragic event.”[813]
6.28
Outside of judicial encouragement for mediating such disputes, a number
of ADR initiatives have been introduced by the National Health Service (NHS)
and a pre-action protocol for the resolution of to clinical disputes has been
introduced under the Civil Procedure Rules 1998.
(1)
National
Health Service (NHS)
(i)
Mediation Pilot
6.29
The NHS medical negligence mediation pilot scheme was launched in 1995
in response to criticisms of how negligence claims were managed and concerns
about their increasing incidence. It was anticipated that up to 40 cases would
be mediated over a 2 year period. As the referrals were low, the scheme was
extended by an additional year. By the end of the third year, only 12 cases had
been mediated.[814]
6.30
A report was conducted to evaluate the pilot.[815]
The 12 mediated cases were fully evaluated: five obstetric, one gynaecology,
three surgery, two oncology, one each in radiology, neurology, bacteriology and
orthopaedics. The settlement range was between £5,000 to £80,000. A number of
other additional remedies were granted to claimants. These included apologies,
extensive explanations of medical decisions, new treatment plans and, in one
case, information about the place of burial of a foetus. The mediations all
took a day to conclude.[816] Comparing traditionally managed cases
with a similar profile to the 12 mediated cases, the report suggests that
mediation increased the costs of the settlement process. Additional costs
included the fees of the mediators, accommodation, and the loss to the NHS of
having doctors present. The report did not take into account the savings in the
cost of possible prolonged litigation.[817]
(ii)
NHS Complaints Procedure & Litigation Authority
6.31
The NHS Complaints Procedure is designed to provide patients with an
explanation of what happened and an apology if appropriate. It is not designed
to provide compensation for cases of negligence. However, patients might choose
to use the procedure if their only, or main, goal is to obtain an explanation,
or to obtain more information to help them decide what other action might be
appropriate.[818]
6.32
The NHS Litigation Authority[819]
has also “instructed its panel of law firms to consider the appropriateness of
mediation in every case and to monitor the outcomes of mediation.”[820]
It is hoped that, with mediation, the cost of NHS compensation, costs and legal
fees, amounting to £4 billion in 2001, will be reduced by at least 5%.[821]
(2)
Pre-Action
Protocol for the Resolution of Clinical Disputes
6.33
After the completion of the NHS mediation pilot, a clinical negligence
pre-action protocol was developed under the Civil Procedure Rules, 1998 to
provide a code of good practice to be followed in clinical negligence
litigation.[822] The
protocol lists a range of alternative mechanisms for resolving clinical
negligence disputes, including mediation, early neutral evaluation, expert
determination and arbitration. The aims of the protocol are to encourage
greater openness between the parties; encourage parties to find the most
appropriate way of resolving the particular dispute; reduce delay and costs;
and reduce the need for litigation.[823]
As noted in the Pre-Action Protocol:
“It is clearly in the interests of patients, healthcare
professionals and providers that patients’ concerns, complaints and claims
arising from their treatment are resolved as quickly, efficiently and
professionally as possible. A climate of mistrust and lack of openness can
seriously damage the patient/clinician relationship, unnecessarily prolong
disputes (especially litigation), and reduce the resources available for
treating patients. It may also cause additional work for, and lower the morale
of, healthcare professionals.”[824]
6.34
The Protocol adds that:
“The parties should consider whether some form of alternative
dispute resolution procedure would be more suitable than litigation, and if so,
endeavour to agree which form to adopt. Both the Claimant and Defendant may be
required by the Court to provide evidence that alternative means of resolving
their dispute were considered. The Courts take the view that litigation should
be a last resort, and that claims should not be issued prematurely when a
settlement is still actively being explored. Parties are warned that if the
protocol is not followed (including this paragraph) then the Court must have
regard to such conduct when determining costs.”[825]
6.35
The Protocol suggests
that parties should consider negotiation, mediation and early neutral
evaluation. Emphasising the voluntary nature of these processes, it also states
that “it is expressly recognised that no party can or should be forced
to mediate or enter into any form of ADR.”[826]
E
Developments
in the United States
(1)
Medical
Mediation Panels: Wisconsin
6.36
In Wisconsin, Medical Mediation Panels were introduced in 1986 to
provide an objective assessment of the strengths and weaknesses of a medical
malpractice claim. All medical malpractice claims must go through this process
before they can proceed to court.[827]
Each panel consists of a lawyer, a health care provider, and a layperson. The
early neutral evaluation they provide aims to identify claims without merit as
early as possible and to expedite the resolution of those claims that do have
merit.
6.37
The intention behind the Medical Mediation Panels was to provide
"an informal, inexpensive and expedient means for resolving medical
malpractice disputes without litigation."[828]
Although referred to in the relevant legislation as "mediation", the
work of the panels is more accurately described as early neutral evaluation.[829]
(2)
Pre-litigation
Screening Panel: Maine
6.38
Before a medical malpractice claim can be filed in Maine, a complaint
must be filed with a pre-litigation screening panel[830].
Like the Wisconsin Medical Mediation Panels, the screening panels are meant to
serve a twofold function of encouraging both the early resolution of claims and
the withdrawal of unsubstantiated claims. But the pre-trial screening process
can be bypassed if all parties agree. Alternatively, all parties may agree in
writing to submit the claim to a binding decision of the panel. The parties can
also use a combined method where certain issues are heard by the panel and
others by the court. The panel does not have the power to decide dispositive
legal issues.
6.39
The Maine scheme is similar to the one proposed by the Irish Hospital
Consultants Association in 1993:
“Under the IHCA's proposal a three-person team - two
physicians and one Senior Counsel - would assess cases. There would have been
certain regulations in regard to the make up of the panel. That panel would
have decided whether compensation was appropriate and, if so, how much. Written
into it would have been that the decision of the panel would have to be
confirmed by the High Court.”[831]
6.40
This scheme has not been implemented.
F
Summary
6.41
The Commission does not consider that mediation is suitable in every
medical dispute, but the examples from litigation in Ireland, notably the organ
retention cases, Devlin and O’Connor, indicate the merits of
mediation in suitable cases. Mediation may be especially suitable where parties
wish to seek redress that is not available through the Courts, for example,
where an apology is sought.
“Our culture is increasingly blame-orientated, and litigation
only feeds this tendency. Mediation, on the other hand, provides a safe forum
for a doctor, who may still be obliged to continue to care for an aggrieved
patient, to give them what they often need – an explanation, assurance of
changed practices, and an apology if appropriate – without the latter being
rewarded by inclusion in the Writ as an admission of liability.”[832]
6.42
Furthermore, mediation can offer the parties an opportunity to express
the emotional aspects of the dispute - the stress, trauma, grief which is often
experienced by claimants in a medical negligence claim. Acknowledgement of such
emotions by the other side may allow the claimants to ‘move on’ from dispute
with the knowledge that their voices have been heard and that their feelings
have been respected and appreciated by the other party, therefore proving them
with a therapeutic sense of closure. Mediation may also be especially suitable
for the resolution of multiple claims, such as in the Alder Hey mediation case.
6.43
The Commission invites submissions as to
whether a pre-action procedure providing for mediation in a medical negligence
claims should be considered.
CHAPTER 7
Commerical
Disputes & ADR
A
Introduction
7.01
In this chapter the Commission discusses the ability of ADR to resolve
commercial disputes. In Part B the Commission provides a general overview of
the nature of commercial disputes and the capacity of ADR to provide suitable
dispute resolution methods. In Part C the Commission examines the development
of commercial ADR in Ireland, with a particular emphasis on the role of the
Commercial Court in encouraging the uptake of mediation and also the provision
for conciliation under the Government Public Works Contracts. In Part D the
Commission summaries the domestic and international institutions and
schemes which have been established to resolve disputes of a commercial nature.
B
Commercial
Dispute Resolution: An Overview
7.02
Most commercial disputes have at least three dimensions; legal,
commercial, and emotional.[833] It is a
well-established advantage that ADR processes, such as mediation and
conciliation, provide an opportunity for parties in a commercial dispute to
consider and resolve all dimensions of the dispute in a private and
confidential environment which also preserves good business relations. By
contrast, litigated commercial disputes are “concerned essentially with the
loss of, or entitlement to money or monies worth, between individuals or
corporations who have sought to protect their personal wealth or investments by
invoking their legal rights.”[834]
Litigation has the advantage of finality but may hamper the continuation of a
business relationship.
7.03
Commercial disputes can lead to huge direct financial costs for a
company, but they can also result in enormous indirect costs including; loss of
reputation, loss of key staff and loss of long-term business relationships.[835]
7.04
In the United Kingdom, the Centre for Effective Dispute Resolution
(CEDR) has estimated that disputes may cost business £33 billion every year.[836]
The cost of business disputes is calculated in terms of the amounts paid in
damages incurred by business as a consequence of those disputes and associated
legal fees. The cost of this consequential damage (£27bn) has been estimated to
far outweigh the legal fees (£6bn).[837]
In addition to the economic cost, 8 out of 10 disputes have a significant impact
on the efficient running of a business. CEDR has estimated that a dispute
valued at £1 million will consume an average of over 3 years of managers' time
trying to resolve the dispute.[838]
7.05
The English firm of solicitors Field Fisher Waterhouse conducted
research into how companies handle the process of dispute resolution and
specifically the role of psychological and emotional aspects of dispute
resolution.[839] The
respondents were 75 UK companies which had been involved in commercial disputes
in the previous 3 years. Almost half of the respondents (47%) stated that a
personal dislike of the other side had led their company into costly
litigation. 88% said unrealistic expectations regularly acted as a barrier to
the resolution of a dispute, while an overwhelming 97% majority said the
business community often underestimated the time and cost required to litigate
a case. 53% of the company executives and in-house lawyers surveyed said the
adversarial stance taken by their external lawyers had contributed to the
escalation of a commercial dispute. The rise in popularity of ADR was evident,
with every respondent pointing to the growing importance of ADR as a means of avoiding
lengthy disputes.[840]
7.06
Businesses can now incorporate a broad range of ADR processes into the
management of their business to prevent and handle commercial disputes that
arise. These include, but are not limited to, ADR clauses partnering, joint
problem solving, mediation, conciliation, early neutral evaluation, online
dispute resolution, and arbitration.
7.07
In a study conducted by the English firm of solicitors Herbert Smith LLP
in 2007, 21 general counsel and in-house disputes lawyers were interviewed
about their dispute management systems in organisations across a range of
industry sectors, including the Royal Bank of Scotland, Merrill Lynch, and GE.[841]
Mediation was overwhelmingly the most frequently used ADR process. 55%of the
organisations had used mediation at least 4-8 times in the previous 12 months
and some organisations reported far higher numbers than that.[842]
7.08
In the United States, approximately 800 companies, including Time
Warner, UPS, General Electric, and Coca-Cola have pledged to explore ADR before
litigation whenever a dispute arises with a company that has made a similar pledge.[843]
It is evident from this that commercial mediation is a phenomenon of global
significance, and is rapidly becoming an attribute of global commerce.[844]
7.09
Commercial disputes often centre on very sensitive commercial details
which parties would prefer not to have disclosed in public. The confidentiality
afforded by mediation is therefore highly attractive. When commercial disputes
arise, the most favourable outcome for those involved is to have the dispute
resolved quickly and to maintain a working business relationship with the other
party.
“…Mediation is about mending fences and finding a
constructive approach to conflict resolution that brings to the surface issues
of mutual concern; reviews the various angles of the issue at stake; and,
allows the conflict to be used as a learning tool and as a basis for improved
relations among the parties. Mediation enables parties to resume, or sometimes
to begin, negotiations.”[845]
7.10
The benefits of commercial mediation can be seen in the following
mediation which was conducted by the Centre for Effective Dispute Resolution.[846]
CEDR Solve Case Study: Commercial Mediation
Two companies were in a
business relationship, one manufacturing a particular food product and the
other distributing it. The manufacturer had a dominant position in the market for
the product. Several years into the relationship the manufacturer revised its
distribution terms, which the distributor claimed was an abuse of the
manufacturer's dominant position through excessive and discriminating prices
and the operation of an exclusive direct distribution system. The distributor
claimed that this amounted to a breach of Article 82 of the EC Treaty (EU
competition rules) and that it affected their trading, causing losses in terms
of reduced profits on the product and a reduction of market share. Claiming
damages as a result of the manufacturer's abuse of a dominant market position,
the distributor commenced litigation. The manufacturer claimed that there was
no evidence of abuse, and that even if the allegations of abuse were true, there
was no direct link with the distributor's alleged losses.
Although court proceedings were
underway, the parties specialised in a niche market and wanted to continue to
work together in the future, but on fair terms, so they requested the
proceedings to be stayed to allow them to attempt mediation. They approached
CEDR Solve believing that mediation would enable a mutually beneficial
agreement to be reached and maintain their working relationship, in contrast to
the uncertainty of litigation and the damage it would cause to their
relationship. The mediator was able to facilitate a settlement, which was
reached at the end of a long two-day mediation session. All claims and
counterclaims were settled and a protocol was also agreed to enable the parties
to start working together again after several years of disagreement.
C
Commercial
ADR in Ireland
7.11
Ireland has experienced an unprecedented economic expansion in recent
years and it was to be expected that commercial disputes would also increase.[847]
Irish businesses, as in most other developed western economies, have
traditionally chosen litigation or arbitration as the means of resolving the
majority of commercial disputes. It has been suggested that, litigation in
particular, has been favoured because it provides a clear and final resolution,
even where this comes with significant financial and consequential costs, such
as damaged business relationships and reputations.
7.12
Indeed, while litigation may inevitably also bring with it considerable
media coverage as in Fyffes v DCC[848]
this may be, as the Commission as already discussed an inevitable aspect of
public dispute resolution where no other options are open. Nonetheless, in many
situations a less public venue for dispute resolution may be appropriate.
7.13
While commercial disputes are inevitable, the way they are handled can
have a profound impact on the profitability and viability of business.[849]
“Full-blown disputes are always bad news for a company. They can lead to poor
performance, scare investors, produce waste, divert resources, cause share
values to decline, and, in some cases, paralyze a company.”[850]
One of the most effective mechanisms for reducing and resolving commercial
conflict is to incorporate ADR clauses into commercial contracts and corporate
governing policies.
(1)
ADR
Clauses in Commercial Contracts
7.14
The Commission concurs
with the view that the optimal time for businesses to implement
strategies to avoid adverse effects of a dispute is before any dispute arises.[851] Consistent with standard business
planning strategies many organisations incorporate dispute avoidance and
management into their corporate strategies. In other words, it is good
corporate governance to establish a framework to prevent and solve emerging
disputes that may affect a company’s reputation and performance.[852]
7.15
The Commission is aware that ADR clauses are now regularly included in commercial contracts,
supplementing more traditional clauses that referred to arbitration only as the
appropriate mechanism for resolving disputes. The clause usually stipulates
that the parties will refer any dispute that arises out of the contract to a
particular method of ADR.[853] By
inserting ADR clauses, businesses establish procedures that will govern the
resolution of any disputes that may arise in the course of the contractual
relationship, and, as a result, avoid any delay in the resolution of the dispute.
“Mediation provisions in contracts put the dispute resolution
framework in place at the relationship’s beginning, not when a conflict arises.
The parties to a contracted mediation become used to the process. Their minds
actually become attuned to meeting, discussing, and identifying disputes and
then resolving them because of an identity of interest – the preservation of
the relationship to achieve agreed goals.”[854]
7.16
In such a clause, ADR is voluntary in the sense that the parties
consented to the inclusion of the clause in the agreement, and thus the
process, at the outset of their relationship.
7.17
In Re Via NetWorks Ltd[855]
the Supreme Court indicated that, in a suitable case, it would be willing to
uphold an ADR clause, although the case itself involved an arbitration clause.
The clause in question stated that:
“... all disputes... shall be resolved exclusively and
finally by binding arbitration among the parties. It is specifically understood
and agreed that any dispute may be submitted to arbitration regardless of
whether such dispute would otherwise be considered justiciable or ripe for
resolution by a court.”
7.18
This was, therefore, already an arbitration clause and the Supreme Court
ordered that the proceedings should be stayed pursuant to section 5 of the Arbitration
Act 1980. But the decision is of interest in the ADR context because Keane
CJ adopted the following comments of Lord Mustill in Channel Tunnel
Group Ltd v Balfour Beatty Construction Ltd:[856]
“I believe that it is in accordance, not only with the
presumption exemplified in the English cases cited above that those who make
agreements for the resolution of disputes must show good reasons for departing
from them, but also with the interests of the orderly regulation of
international commerce, that having promised to take their complaints to the
experts, and if necessary to the arbitrators, that is where the respondents
should go.”[857]
7.19
It is notable that Keane CJ stated that in the Via Networks case:
“While, as the passage makes clear, in that case the contract
was one which was more characteristic of the high-level world of international
commerce than the agreement now under consideration, I have no doubt that the
general principle is equally applicable to the agreement in this case.”
7.20
In that respect, the Court in the Re Via Networks case suggests
that the well-established rule as to staying proceedings on the basis of an
arbitration clause which has strong statutory backing in section 5 of the Arbitration
Act, 1980 can be applied in the context of any ADR clause.
7.21
This view is explicitly stated in the English case of Cable and
Wireless plc v IBM plc.[858]
In this case, Colman J held that a clause that specifically referred disputes
to ADR, but was vague in terms of the precise procedure that should be used,
was enforceable. He stated:
“For the courts now to decline to enforce contractual
reference to ADR on the grounds of intrinsic uncertainty would be to fly in the
face of public policy as expressed in the CPR [post-Woolf Civil Procedure Rules
of Court] and as reflected in the judgment of the Court of Appeal in Dunnett
v Railtrack plc.”[859]
7.22
These cases serve to reinforce the increasing weight that the courts
give to ADR but of course, this is underpinned in England and Wales by the
general statutory reforms to civil procedure under the Civil Procedure Rules
1998.
7.23
ADR clauses may, however, be ineffective if they are not properly
drafted. In the Australian case Aiton Australia Pty Ltd v Transfield Pty Ltd[860] Einstein J stated that “The Court will not adjourn or
stay proceedings pending alternative dispute resolution procedures being
followed, if the procedures are not sufficiently detailed to be meaningfully
enforced.”[861] In this
case the ADR clause was silent about the remuneration to be paid to the
mediator and the effect of a declined appointment. The Court added that the
minimum requirements applying to a dispute resolution clause, not just to
mediation included the following:
·
It must be in the form described in Scott v Avery.[862] That is, it should operate to make completion of the
mediation a condition precedent to commencement of court proceedings;
·
The process established by the clause must be certain;
·
The administrative processes for selecting a mediator and in determining
the mediator’s payment should be included in the clause and, in the event that
the parties do not reach agreement, a mechanism for a third party to make the
selection will be necessary; and
·
The clause should also set out in detail the process of mediation to be
followed – or incorporate these rules by reference. These rules will also need
to state with particularity the mediation model that will be used.[863]
7.24
While the Commission does not necessarily agree that all these elements
are required in all cases of ADR clauses (because they may inhibit the
flexibility of the mediation process), this case highlights the need for ADR
clauses to be properly drafted. Model ADR clauses are widely available which
may provide a template for contracting parties. While these standard ADR
clauses are a good starting point for drafters, parties should ensure that they
incorporate contract-specific matters to reflect their own individual needs.
(2)
Commercial
Court & ADR
(a)
Ireland
7.25
The Commission views the ongoing promotion and encouragement of
mediation by the Commercial Court in the High Court as fundamental towards the
integration of ADR into our civil justice system.
7.26
The Commercial Court was established in 2004 pursuant to the Rules of
the Superior Courts (Commercial Proceedings) 2004.[864]
Its purpose is to expedite cases of a commercial nature valued at €1 million or
more. The 2004 Rules state that the High Court judge exercising the
jurisdiction conferred to them:
“... may, of his own motion or on the application of any of
the parties, adjourn the matter before it for a period not exceeding 28 days
for the purpose of allowing the parties to consider whether or not the
proceedings ought to be referred to mediation, conciliation or arbitration.”[865]
7.27
The 2004 Rules make clear that the judge does not have the power to
direct that the parties attempt ADR but is limited to adjourning the
proceedings to allow the parties to consider whether ADR is appropriate
for them. This is consistent to the voluntary nature of ADR.[866]
7.28
Where the parties decide to attempt ADR, the judge may extend the time
for compliance by them with any provision of the rules or order of the court.
“This direction will be given for the purpose of facilitating the determination
of the proceedings in a manner which is just, expeditious and likely to
minimise costs.”[867] The 2004
Rules represent the first statutory example in Irish law of the application of
ADR in a court setting. This was followed by the Rules of the Superior Courts
(Competition Proceedings) 2005[868]
and section 15 of the Civil Liability and Courts Act 2004.
7.29
In the following case study, Nesselside Builders Ltd. v Carlow County
Council, a potentially expensive civil action was resolved following
mediation, which was advised by Kelly J under the 2004 Rules.[869]
Case Study: Mediation in the Commercial Court
Nesselside Ltd had all but
completed a small part of a major road development in County Carlow. It
then transpired that the Council did not own a small piece of land linking the
Nesselside development to the main development. This small parcel of land
was in fact owned by a person called Madden. Nesselside initiated an
action requiring the Council to provide access to the land and to initiate a
compulsory purchase order for it against the owner. The claim also sought
damages for alleged breach of contract, malfeasance in public office and
fraudulent misrepresentation. Kelly J advised the parties to consider
mediation. The mediation was successful and the case was withdrawn from the
Commercial Court list.
7.30
Mediation has also been recommended and attempted in many other cases in
the Commercial Court.[870] It is
important to note that mediation can assist the parties in clarifying the
issues and gaining a greater understanding of the nature of the dispute, even
if a settlement does not result.
7.31
By actively selecting cases which are believed to be appropriate for
resolution by ADR, the Commercial Court has, on its own initiative, increased
the awareness and uptake of mediation in such cases. The Commission very much
welcomes the introduction of ADR in the Commercial Court, but it is important
to note that given the €1 million jurisdictional threshold involved, most
commercial disputes will not qualify for inclusion on the Commercial Court’s
list. In this respect, it has been suggested that ADR must be promoted for the
resolution of commercial disputes in small and medium-sized businesses. As
certain commentators have noted:
“Ensuring the continued growth… of ADR in this jurisdiction
will then depend on encouraging small and medium enterprises to include
appropriate ADR clauses in agreements... and increasing their awareness of the
benefits of mediation in contrast to the damage to commercial and employment
relationships which may result from litigation.”[871]
7.32
The Commission turns to assess developments in the Commercial Court in
England and Wales which have placed a greater emphasis on the role of ADR in
the resolution of commercial disputes.
(b)
England
7.33
The English Commercial Court has issued a series of Practice Directions
in recent years providing guidance concerning the procedures of the Court. In
1993 the Court issued a Practice Statement which introduced changes to two
questionnaires used by the court. The parties were required to complete and
submit these at two stages in the case, first prior to the summons for
direction and then another prior to the trial to confirm whether the directions
had been carried out. The 1993 Practice Statement added questions about whether
the party completing the form had considered the use of ADR and whether ADR had
been explored with the other side. In 1995 additional questions were added to
all pre-trial check lists in the following form:
·
“Have you or your Counsel discussed with your clients the possibility of
attempting to resolve this dispute (or particular issues) by Alternative Dispute
Resolution?
·
Might some form of ADR procedure assist to resolve or narrow the issue
in this case?
·
Have you or your clients explored with the parties the possibility of
resolving this dispute (or particular issues) by ADR?"
7.34
In 1996 the Court issued a second Practice Statement on ADR. This
indicated that from that time judges of the Commercial Court would:
·
Look at cases or issues in cases to see if they might be appropriate for
settlement by ADR;
·
Invite the parties to take positive steps to set ADR procedures in
motion;
·
Adjourn the proceedings to enable ADR to take place;
·
Provide for the costs of any ADR procedure.
7.35
In identifying cases regarded as appropriate for ADR, judges may suggest
the use of ADR, or make an Order directing the parties to attempt ADR. If,
following an ADR Order, the parties fail to settle their case they must inform
the Court of the steps taken towards ADR and why they failed. It has been said
that “… although the Court's practice is non-mandatory, ADR Orders impose
substantial pressure on parties.”[872]
7.36
The 2006 Commercial Court Guide[873]
includes a separate Chapter on ADR and a sample ADR Order printed. In the 2006
Guide, the Court emphasises the ‘primary role’ of the Commercial Court as a
forum for deciding commercial cases, but encourages parties to consider the use
of ADR as a possible means of resolving disputes or particular issues. The 2006
Guide states:
“Whilst the Commercial Court remains an entirely appropriate
forum for resolving most of the disputes which are entered in the Commercial
List, the view of the Commercial Court is that the settlement of disputes by
means of ADR:
(i) significantly helps parties to save costs;
(ii) saves parties the delay of litigation in reaching
finality in their
disputes;
(iii) enables parties to achieve settlement of their disputes
while
preserving their existing commercial relationships and market
reputation;
(iv) provides parties with a wider range of solutions than
those offered by litigation; and
(v) is likely to make a substantial contribution to the more
efficient use of judicial resources.”[874]
7.37
The 2006 Guide states that Commercial judges will, “in appropriate
cases”, invite parties to consider whether their dispute, or issues in it,
could be resolved through ADR. Parties wishing to attempt ADR can apply for
directions at any stage, including before service of the defence and before the
case management conference. The Guide adds that judges may “invite” parties to
use ADR if, at the case management conference, it appears to the judge that the
case or any of its issues are “particularly appropriate” for an attempt at
settlement by means of ADR.[875] The judge
has the power to adjourn the case to encourage and enable the parties to use
ADR, or if deemed appropriate, may make an ADR Order in the terms set out in
the Guide.
7.38
The draft ADR Order appended to the 2006 Guide provides for the parties
to:
·
exchange lists of three neutral individuals available to conduct ADR
procedures;
·
to endeavour ‘in good faith’ to agree a neutral to conduct the ADR
procedure;
·
to take serious steps to resolve their dispute by ADR; and
·
if the case is not finally settled, the parties are to inform the Court
by letter what steps towards ADR have been taken and why such steps have
failed.[876]
7.39
A 2002 study entitled Court-Based ADR Initiatives for Non-Family
Civil Disputes: The Commercial Court and the Court of Appeal assessed the
impact of ADR Orders on the progress and outcome of 233 cases between 1996 and
2000 explored reactions of practitioners to ADR Orders.[877]
7.40
During the first three years reviewed in the study, the annual number of
ADR Orders issued was about 30. ADR was undertaken in a little over half of the
cases in which an ADR Order had been made. There was a substantial increase
toward the end of the period, with some 68 Orders being issued in the final six
months of the study. This was the result of one or two judges significantly
increasing the number of ADR Orders made.[878]
7.41
Of the cases in which ADR was attempted, 52% settled through ADR, 5%
proceeded to trial following unsuccessful ADR, 20% settled some time after the
conclusion of the ADR procedure, and the case was still live or the outcome
unknown in 23% of cases. Among cases in which ADR was not attempted following
an ADR Order, about 63% eventually settled. About 20% of these said that the
settlement had been as a result of the ADR Order being made. However, the rate
of trials among the group of cases not attempting ADR following an ADR Order was
15%. This compares unfavourably with the 5%of cases proceeding to trial
following unsuccessful ADR.[879]
7.42
The most common reasons given for not trying ADR following an ADR Order
were:
·
The case was not appropriate for ADR;
·
The parties did not want to try ADR;
·
The timing of the Order was wrong (too early or too late); and
·
No faith in ADR as a process in general.[880]
7.43
The English Commercial Court also provides for Early Neutral Evaluation
(ENE) of commercial disputes. The 2006 Commercial Court Guide states that, in
appropriate cases, there is a facility for a without prejudice, nonbinding, ENE
by a Commercial Court judge of a dispute, or of particular issues in a case.
Following discussion with parties’ legal representatives, a judge may offer to
provide an evaluation himself, or arrange for another judge to do so, if it is
thought that an ENE would help in resolving the dispute. If such an ENE is
provided by a judge, that judge will normally take no further part in the case.
7.44
The 2007 Report and Recommendations of the Commercial Court Long
Trials Working Party recommended that “At appropriate stages those
representatives should also be required to sign a statement to the court
indicating whether ADR has been considered internally within the client
organisation.”[881]
The Report argued that senior representatives of the parties should be required
to sign this statement and also whether ADR has been considered with their
opposite number. This process should occur automatically at two stages: (i) at
the first case management conference, and (ii) after exchange of expert
reports, or of witness statements if there are no expert reports. In addition,
the judge may of course ask the question at any oral hearing at which he or she
considers it appropriate. The proposals and recommendations in the 2007 Report
have been put into practice in the Commercial Court for a trial period from
February 2008.[882]
7.45
The Commission invites submissions as to
whether mediation and conciliation orders should be introduced in the
Commercial Court which would set out the necessary steps which parties must
follow when considering mediation and conciliation.
(3)
ADR
Clauses in Irish Government Public Works Contracts
7.46
In 2004 the Irish government decided to reform public sector
construction procurement in Ireland and commissioned replacement of GDLA[883]
and IEI[884] Standard
Forms of Contracts. In 2007, a suite of construction contracts for use on
Public Works contracts was published.[885]
7.47
Public sector construction contributes approximately €8 billion to the
Irish construction industry every year.[886]
“Construction projects, as a result of their inherent nature, can be subject to
cost and time overruns. With such a large financial outlay and exposure to cost
and time overruns, the government require more price and time certainties on
public construction projects.”[887]
The introduction of the 2007 Public Works Contracts is aimed at reducing
overruns and increasing certainties and are now are mandatory for all publicly
funded construction projects.[888]
7.48
The standard contracts and subcontracts of the IEI, RIAI, CIF and SCS
provide for the resolution of disputes by conciliation and arbitration. The
2007 Public Sector Contracts follow suit. Clause 13.1 of the 2007 Public Sector
Contracts is devoted substantially to the process of conciliation.[889]
The Commission now turns to examine Clause 13.
(a)
Voluntary Nature of the Process
7.49
Clause 13.1.1 states that “If a dispute arises under the Contract,
either party may, by notice to the other party, refer the dispute for
conciliation”. Clause 13.1 doesn’t, therefore, make conciliation mandatory and
it is left to the parties to initiate the process if they wish to do so.
(b)
Terminology
7.50
Clause 13.1.2 states that:
“Within 10 working days of the referral of a dispute to
conciliation, the parties shall jointly appoint a conciliator who is competent
to adjudicate upon the dispute and independent of the parties.”
7.51
The Commission has already defined conciliation as an advisory as
opposed to an adjudicatory process.[890]
While the conciliator may have an advisory role on the content of the dispute
or the outcome of its resolution, it is not in the Commission’s view an
adjudicatory or determinative role.[891]
It has been noted in this respect that the use of the word ‘adjudicate’ and not
‘conciliate’ is confusing as the “skills required for a competent conciliator
are different from those who is ‘competent to adjudicate.”[892]
It is clear from the later provisions of clause 13.1 that it may not have been
the intention of the drafters to use “adjudicate” in the sense of a
decision-making role.
(c)
Role of the Conciliator
7.52
In clause 13.1.5 the role of the conciliator is described as advisory in
nature and, indeed, it does not expressly permit the conciliator to adjudicate
on the dispute. It states that the conciliator shall “consult with the parties
in an attempt to resolve the dispute by agreement.” The conciliator may do any
of the following or a combination of both:
·
meet the parties separately from each other or together and consider
documents from one party not sent or shown to the other;
·
conduct investigations in the absence of the parties;
·
make use of specialist knowledge;
·
obtain technical or legal advice;
·
establish the procedures to be followed in the conciliation.
7.53
This description of the conciliator’s role confirms the Commission’s
view that it is, in fact, consistent with an advisory role. Clause 13.1.6
states that the conciliator “shall not be an arbitrator and the Arbitration
Acts 1954 to 1998 and the law relating to arbitration shall not apply to
conciliation.”
7.54
No minimum requirements are laid down in law in respect of the
qualifications and qualities required of a conciliator, but the relevant
professional bodies apply specific criteria for entry to their lists of approved
conciliators. “The IEI criteria, for example, require the conciliator to hold a
qualification in construction law and contract administration or equivalent,
and to have attended courses on conciliation, and panellists are required to
attend continuing professional development events on a regular basis.” [893]
(d)
Recommendation of the Conciliator
7.55
Clause 13.1.8 states that where the parties cannot reach an agreement
within 42 days after the conciliator is appointed[894]
the conciliator is to provide a written recommendation to both parties. Clause
13.1.8 adds that any such recommendation shall be based on the parties’ rights
and obligations under the Contract.
7.56
As previously noted by the Commission, one of the benefits of ADR
processes, such as conciliation, is that the focus in resolving the dispute is
not solely on the parties legal positions and rights, but rather on their
underlying interests and needs. By focusing on the parties’ rights and
obligations under the contract, it can be said that clause 13.1.8 is not
entirely consistent with some of the advantages which are associated with conciliation,
notably flexibility and party-autonomy. The Commission concurs with the view
that:
“Whilst it is proper and advisable that the conciliator
should first consider and take account of the parties’ rights and obligations
under the contract, he/she should do much more than that in order to assist the
parties to a settlement that they can love with rather than writing a
judicially correct recommendation.”[895]
7.57
Under clause 13.1.9 if either party is dissatisfied with the
conciliator’s recommendation, it may, within 45 days after receiving the
conciliator’s recommendation, so notify the other party. Following such notice
either party may refer the dispute to arbitration. Clause 13.1.10 states that
if neither party gives notice of dissatisfaction within 45 days after receiving
the conciliator’s recommendation, “the recommendation shall be conclusive and
binding on all the parties, and the parties agree to comply with it.”
(e)
Confidentiality
7.58
The confidentiality of the process is protected in clause 13.1.12 which
states that: “The conciliation shall be confidential, and the parties shall
respect its confidentiality.”
(f)
Conclusion
7.59
In 2008, the Arbitration
Rules for Use With Public Works and Construction Services Contracts were
issued. As yet, there are no equivalent rules in relation to conciliation and
the Commission considers that there is a strong case for clearer guidance on
conciliation including the need to clarify some of the issues identified in the
preceding paragraphs. The Commission is not currently minded to make any
recommendations on this issue and invites submissions as which form the
regulation of conciliation should take.
7.60
The Commission invites submissions as to whether a general statutory
framework for mediation and conciliation in commercial disputes should be put
in place, which would include small commercial (including consumer) disputes
and contracts covered by the Government’s Standard Contracts for Public Works.
(4)
Shareholder
Disputes & ADR
7.61
From 2001 to 2006, 20% of the company law-related disputes settled by
the International Chamber of Commerce concerned corporate governance-related
disputes.[896] An example
of a corporate governance-related dispute includes disputes among shareholders.[897]
7.62
The 2005 Report of
the Legal Costs Working Group recommended that:
“Mediation…should
be encouraged and there may well be strong arguments that applications for
example, under section 205 of the Companies At 1963 (minority oppression)
should be brought before a judge very early in the proceedings so that the
availability of mediation is made known to the parties.”[898]
7.63
It has been stated that: “Shareholder disputes have typically been
characterised by a depth of bad feeling and the situation may often be
extremely difficult.”[899] The English
Law Commission’s 1997 Report on Shareholders Remedies noted that
in company and shareholder disputes “there are often grievances between the
parties which go beyond the pleaded allegations and for which ADR is suitable.”[900]
7.64
In the same vein the
2001 Final Report of the Company Law Review Steering Group of the UK
Department of Trade and Industry, Modern Company Law For a Competitive
Economy stated that:
“Litigation is often both lengthy, diverting scarce
management resources, and expensive, undermining the financial viability of the
company and leaving the minority shareholder and/or the company with costs
exceeding any award made by the court. Our consultation on this issue has shown
that there is significant demand for action to reduce the burden of litigation
in shareholder disputes... We recommend that the Government should take two steps.
First, it should increase awareness of and accessibility to ADR through
publicity and the establishment of referral mechanisms. Second, it should work
with arbitration providers in order to establish an arbitration scheme designed
specifically for shareholder disputes. We believe that, if these steps are
taken, the expense and length of shareholder disputes will be significantly
reduced, providing proper remedies for aggrieved minority shareholders while
limiting the costs and disruption suffered by companies.”[901]
7.65
The Commission concurs
with the views of the Legal Costs Working Group Report and the views of the Law
Commission of England and Wales concerning early consideration of mediation in
resolving shareholder disputes under section 205 of the Companies Act 1963.
7.66
The Commission provisionally recommends that mediation and
conciliation may be appropriate for the resolution of shareholder disputes
under section 205 of the Companies Act 1963 and should be considered prior to
litigation.
(5)
Commercial
ADR Schemes & Associations
(a)
Small Claims Arbitration Scheme – Bar Council
7.67
The Bar Council of Ireland (the representative body for barristers in
Ireland) has developed a Small Claims Arbitration scheme for small businesses
that are in a dispute with each other involving a sum of €7,500 or less.[902]
The Arbitration Act 1954 as amended by the Arbitration Act 1998 applies
to these arbitrations. Under the scheme, the arbitrator is appointed by the Bar
Council and must be a qualified barrister. The arbitrator and the Bar Council
keep all details of the case confidential unless those involved in the
arbitration consent that they may be revealed or the law requires that the
details are revealed. The cost of the arbitrator is limited to €750. Speaking
at the launch of the scheme in 2005, the then Minister for Enterprise, Trade,
and Employment stated:
“This is a new and cost efficient way for small businesses to
claim back monies due to them. It provides access to the legal system at a very
low cost and allows parties to put their case forward and receive a ruling
within a month. Wasted time and money are of great concern to small businesses
and I welcome this scheme from the Bar Council which gives a speedy and
economical answer to these problems.”[903]
(b)
Chartered Institute of Arbitrators
7.68
Founded in 1915 the Chartered Institute of Arbitrators is a UK
registered charity with an international network.[904]
It has over 11,000 members in more than 100 countries including Ireland. The
Institute’s primary objective as set out its Charter is to promote and
facilitate the determination of disputes by arbitration and alternative means
of dispute resolution.
7.69
The Irish Branch of the Chartered Institute of Arbitrators was
established in 1981 and has a permanent secretariat in Dublin. In 2008, the
Irish Branch’s membership compromises of over 600 Chartered Arbitrators,
Fellows, Members and Associate members.[905]
The multi-disciplinary membership includes practitioners in law, information
technology, engineering, construction, shipping, finance, insurance,
commodities, agriculture, accountancy, medicine and travel. Members of the
Branch provide other forms of ADR services including mediation and conciliation
services. The Institute defines mediation and conciliation as follows:
“Mediation is a private and structured form of negotiation
assisted by a third party that is initially non-binding. If a settlement is
reached the mediator can draw up an agreement that can then become a legally
binding contract.
Conciliation is similar to mediation, but the conciliator can
propose a solution for the parties to consider before agreement is reached.”
7.70
These definitions are entirely consistent with the Commission’s
definitions of mediation and conciliation.[906]
7.71
The Irish Branch administers a wide variety of commercial dispute
resolution schemes. A scheme is a set procedure under which parties in dispute
agree to have their dispute resolved. [907]
The schemes administered by the Irish Branch are:
·
Tour Operators Package Holiday Scheme
·
Society of the Irish Motor Industry (SIMI) Scheme
·
Wildlife Habitat Scheme
·
Department of the Environment/NRA/IFA – Land Purchase Scheme
1.04 In its submission on the Green
Paper on Alternative Dispute Resolution in Civil and Commercial Matters the
Irish Branch endorsed the use of compulsory ADR prior to litigation in consumer
disputes stating that:
“… the compulsory use of ADR before commencing court
proceedings is a way to ensure resolution of any disputes that avoid the well
recognised difficulties that can arise from litigation. Confirmation of a third
party that such recourse has been availed of and has been unsuccessful appears
to be a reasonable requirement before a court would entertain such disputes.”[908]
(c)
Irish Commercial Mediation Association (ICMA)
7.72
The Irish Commercial Mediation Association (ICMA) was established in
2003 to promote and develop commercial mediation in Ireland.[909]
Mediation is described by ICMA as “a private and confidential dispute
resolution process in which a neutral third party, the Mediator, seeks to help
the parties to reach a mutually acceptable settlement.”[910]
7.73
There are two types of ICMA memberships. Ordinary membership is open to
any person, organisation, body, firm or company with an interest in the
provision and development of commercial mediation. Directory of Mediators
Membership is open to any person who is qualified to mediate having obtained
the relevant qualifications and experience.
(d)
Just Sport Ireland
7.74
Just Sport Ireland (JSI) is an independent specialised dispute
resolution service for Irish sport offering both a mediation and arbitration
facility. It was established by the Federation of Irish Sports in response to
the increasing prevalence of sporting litigation.[911]
As noted by Smyth J in Gould v Sweeney[912]courts
are not always the appropriate forum for the resolution of such disputes.
"Sports organisations do best to resolve differences
under their own governing codes, rather than recourse to the courts of law.
Issues of natural justice are important but the substance of matters rather
than their form are important in seeking to resolve internal disputes in such
organisations and recourse to the courts should be a last resort, and only in
the rarest of cases."[913]
7.75
The JSI website states that it aims “to provide a fair, impartial and
efficient resolution of sporting disputes thus helping to ensure justice and
fairness in sport. Just Sport Ireland will deal with all disputes arising in a
sporting context save for anti-doping and employment issues.”[914]
It also states that it supports and is founded on the principles of
“simplicity, accessibility and enforceability.”[915]
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.[916]
D
International
Commercial Dispute Resolution in Ireland
7.78
In Keenan v Shield Insurance Co Ltd[917]
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.[918] The Arbitration
(International Commercial) Act 1998 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 purpose-built International Arbitration
Centre has been opened in Dublin. The Centre offers facilities for hosting
international arbitrations, including translation facilities and
video-conferencing.[919]
(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."[920]
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.[921]
(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 Branch), and Chambers Ireland. Its main purpose in Ireland is to promote
international arbitration under ICC rules. When the International Court of
Arbitration wishes to appoint an Irish arbitrator, the Irish national committee
often has a significant role to play in the selection of that arbitrator, and
is invited to nominate appropriate chairs, sole arbitrators, co-arbitrators of
Irish nationality under the rules of the ICC International Court of
Arbitration. Individual members of the Committee represent the views of the
national Arbitration committee at the ICC Commission on Arbitration, and as
Member and Alternate to the International Court of Arbitration itself.[922]
7.84
The ICC Court, which was created in 1923, is not a “court” in the
ordinary sense. As the ICC arbitration body, the Court ensures the application
of the Rules of Arbitration of the ICC. Although its members do not decide the
matters submitted to ICC arbitration – this is the task of the arbitrators
appointed under the ICC Rules – the Court oversees the ICC arbitration process.
The Court's membership is drawn from 88 countries, including Ireland. The
Court is assisted by a Secretariat located at ICC headquarters in Paris.
7.85
Since its creation, the Court has administered over 14,000 international
arbitration cases involving parties and arbitrators from 180 countries and
territories.[923] In 2007,
599 requests for arbitration were filed with the ICC Court. These concerned
1,611 parties from 126 countries and independent territories and in over 10% of
cases at least one of the parties was a State. The amount in dispute in
57.4% of cases exceeded $1 million.
(3)
The
Permanent Court of Arbitration
7.86
The Permanent Court of
Arbitration (PCA) is an intergovernmental organisation with over 100
States. It was established in 1899 to facilitate arbitration and other forms of
dispute resolution. Although initially conceived as an instrument for the
settlement of disputes between states, the PCA’s mandate was broadened in 1935
when it administered its first case between a state and a private party setting
a precedent for its activity since then of providing services for the
resolution of disputes involving various combinations of states, state
entities, international organisations and private parties. International
commercial arbitration can also be conducted under PCA auspices. The PCA has
also developed rules of procedure, which are based on the arbitration rules of
UNCITRAL.[924]
(4)
Court
of Arbitration for Sport
7.87
The Court of Arbitration for Sport (CAS), which is based in Lausanne,
Switzerland, facilitates the settlement of sports-related disputes through
arbitration or mediation by means of procedural rules adapted to the specific
needs of the sports world. [925] The CAS was created in 1984 by the
International Council of Arbitration for Sport (ICAS). Any disputes directly or
indirectly linked to sport may be submitted to CAS. These include disputes of a
commercial nature (for example, a sponsorship contract), or of a disciplinary
nature following a decision by a sports organisation (for example, a doping
case).
E
Conclusion
7.88
In this Chapter the
Commission has discussed the extent to which ADR, in particular, mediation and
conciliation, can contribute to the resolution of commercial disputes. The
Commission acknowledges and commends the manner in which the High Court’s
Commercial List has been operational in a proactive manner to exemplify that
mediation and conciliation are not merely “alternatives” to litigation but have
become important elements of an integrated approach to the resolution of civil
disputes. The Commission also notes that long established methods of
arbitration, including international arbitration, have also become integrated
into wider ADR context. The Commission reiterates in this respect the need to
ensure that ADR processes, in particular mediation and conciliation, should be
seen as voluntary and non-binding and should be clearly distinguished from the
adjudicative functions properly performed by arbitral processes and Court
decisions.
CHAPTER 8
consumer
disputes & adr
A
Introduction
8.01
In this chapter the
Commission examines the development of ADR in resolving consumer disputes. In
Part B the Commission provides a general overview of consumer disputes. In Part
C the Commission examines the main statutory and non-statutory bodies and
schemes that provide redress for consumers in Ireland. In Part D the Commission
discusses the mechanisms available to resolve cross-border customer disputes.
In Part E the Commission explores the area of online dispute resolution for
consumer disputes arising from online transactions. In Part F the Commission
discusses the Small Claims Procedure which is available through the District
Courts for resolving consumer disputes. In Part G the Commission summarises
various consumer redress mechanisms which have developed in other
jurisdictions.
B
Consumer
Disputes: An Overview
8.02
Ensuring that consumers have access to fast, effective, and economical
redress to disputes is important to society as a whole. As noted in the 2005 Report
of the Consumer Strategy Group:
“Informed and empowered consumers are a powerful social and
economic force. They can improve the overall standard of living in the country
and drive innovation in the enterprise sector. Confident, well-informed
consumers are not only more willing to spend their money, they are also more
likely to favour progressive suppliers that offer more choice, better quality,
superior service and innovative products and services at fair prices.”[926]
8.03
Consumer redress mechanisms form a spectrum that ranges from two-party
consumer and business negotiation, through to various third-party processes
such as mediation, to litigation.[927]
The most appropriate dispute resolution mechanisms will often depend on the
circumstances of the particular complaint, such as:
(a) The value of the claim;
(b) The level of legal complexity;
(c) The incentive of the parties to
find a mutually agreeable solution;
(d) The number of consumers
involved;
(e) Whether there was fraud,
negligence, or just misunderstanding;
(f) The time, money and effort the
consumer or businesses want to spend in resolving the dispute;
(g) Whether any public policy
elements are involved; and
(h) Whether there any cross-border
elements are involved.[928]
8.04
When consumers experience problems with goods or services, their initial
responses to such problems may include inaction or voicing the complaint
directly to the business. The Commission notes that the majority of consumer
dispute resolution takes place at the level of two-party negotiations without
the intervention of a third party. However, where efforts to resolve disputes
directly with businesses fail, it is important that out of court ADR mechanisms
are available.[929] As the
Consumer Strategy Group also noted:
“…what really matters is the gap, if any, between a consumer
(or business) deliberately deciding not to take any action and a consumer (or
business) wishing to take action but refraining from doing so because of the
perceived disadvantages of an ordinary court procedure…mechanisms of ADR that
bridge this gap have the unique capability of increasing access to justice.”[930]
8.05
The 2006 Eurobarometer Survey Consumer Protection in the Internal
Market found that 14% of Europeans had made some form of formal complaint
during the preceding 12 months. 54% were satisfied with the way their complaint
had been dealt with, while 41% were dissatisfied with the way their complaint
was dealt with. 51% of the dissatisfied Europeans, however, took no further
action and only 6% brought the matter to an ADR body and 4% to court.[931]
8.06
In Ireland, it can be said that there are a number of non-adversarial
avenues of redress for consumer disputes. The first step for the consumer
is often to partake in direct negotiation with the business. Many businesses
have internal complaints procedures in place which should be exhausted by the
consumer. If the consumer remains unsatisfied the next step might be to lodge a
formal complaint with an independent complaints body such as the National
Consumer Agency.[932] Many of
these bodies have ADR mechanisms in place to resolve the dispute. The consumer
may also wish to avail of an online dispute resolution mechanism if the
consumer transaction stemmed from an online purchase such as provided by eBay.[933]
In cases, involving cross-border disputes, the European Consumer Centre (ECC)
provides ADR mechanisms for redress.[934]
The next stage would be to use the Small Claims Procedure in the District Court
if the dispute is within its jurisdiction. Of course, litigation may be
required in some instances, and in others, the consumer contract may also
include a binding arbitration clause. The Commission turns to discuss each of
these stages.
|
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.gif)
C
ADR
Mechanisms for Resolving Domestic Consumer Disputes
(1)
Direct
Negotiation & Internal Complaints Handling
8.07
Consumers are generally more interested in receiving a swift solution to
their problems through direct negotiation rather than asserting their legal
rights. For example, redress for a consumer could include delivery, repair,
replacement, or refund of a product or service. Given that businesses tend to
be ‘repeat players’ in direct negotiations with consumers, it has become common
for businesses to set up and operate more formalised complaint handling schemes
within their companies to deal with consumer disputes as they arise.[935]
8.08
One mechanism for establishing internal redress systems for consumers is
incorporating redress procedures into a code of practice. Section 2(1) of the Consumer
Protection Act 2007 defines a code of practice as
“any code, agreement or set of rules or standards that is not
imposed by or under an enactment but purports to govern or define commercial
practices of one or more traders (whether generally or in respect of a
particular trade, business or professional sector or one or more commercial
practices) who agree, commit or undertake to abide or be bound by such rules or
standards.”[936]
8.09
Section 88 of the 2007 Act provides for codes of practice to be
submitted to the National Consumer Agency (NCA) for review and approval. The
NCA may approve such a code of practice if satisified it protects consumer
interests. Section 89 of the 2007 Act provides that in any proceedings before a
court an approved code of practice is admissible in evidence. Under Section 45
of the 2007 Act a trader who misrepresents that he or she is bound by a code of
practice as a means of enticing a consumer to purchase a product or service or
who fails to comply with a commitment of such a code commits an offence under
the 2007 Act.
8.10
Despite statutory provision for codes of practice, it appears that few
Irish businesses actually have a code of practice in place. In compiling its
2005 Report, the Consumer Strategy Group received 64 responses to 2,124
requests for codes of practice from both the public and private sectors.[937]
The Commission notes that, in other jurisdictions, best practice codes on
complaint handling procedures have been drafted both by public institutions or
business or consumer organisations.[938]
8.11
In its 2005 Report, the Consumer Strategy Group recommended in relation
to codes of practice:
·
Promoting the use of codes of practice by all businesses and encouraging
self-regulation schemes;
·
Introducing standardised statutory codes of practice across all public
sector bodies; and
·
Establishing private sectoral complaints boards as an alternative means
of redress.[939]
8.12
The Commission notes that the first element of these recommendations was
implemented in section 88 of the 2007 Act and it looks forward to the eventual
implementation of the other elements. The Commission also acknowledges that it
is often only when internal complaint handling procedures have been exhausted
that a consumer will proceed to ADR. For this reason, “internal complaint
handling schemes can be categorised as gatekeepers to other ADR schemes
(arbitration, mediation or ombudsmen schemes).”[940]
8.13
If a consumer is not satisfied after direct negotiation with the
business, then the next step is to contact a relevant complaints body. There
are a number of consumer complaints bodies in Ireland and abroad that protect
consumer rights. Some of these are statutory bodies, others are regulated by
industry, while some are voluntary organisations.[941]
(a)
National Consumer Agency
8.14
The National Consumer Agency (NCA) was established under the Consumer
Protection Act 2007 as the
successor to the Office of the Director of Consumer Affairs, on foot of the
recommendations in the 2005 Report of the Consumer Strategy Group. The
2007 Act also implemented the 2005 EC Directive on Unfair Commercial Practices.[942]
The Agency’s primary roles under the 2007 Act are to promote consumer education
and awareness, to provide information for consumers on their statutory rights
under law, to conduct research and monitor relevant standards (for example, toy
safety standards), to act as regulator and to prosecute traders for
non-compliance where necessary. The Commission has already noted that, in
carrying out its role, the NCA can give statutory approval and status to an
industry code of practice.
(i)
The NCA and collective redress mechanisms
8.15
The NCA also has the capacity to develop other important collective
standards on its own initiative through engagement with consumer and industry
groups. For example, arising from an enormous number of individual complaints
received by the NCA from consumers/owners in apartment complexes about the
level of professional fees and associated charges being sought by property
managing agents (some of which may have arisen from an understanding deficit by
consumers and others from poor governance arrangements),[943]
the NCA established a Consumer Forum on Apartment Complexes. This Forum
developed guidelines for contracts between property managing agents and owners’
management companies in apartment complexes, including a contractual template
for professional fees and service charges.[944]
This initiative resembles that of an Ombudsman who receives individual
complaints and then inquires into them in terms of the general procedural
problems that need to be addressed. The outcome of the guidelines developed by
the NCA Forum is that contractual issues that previously would have given rise
to a considerable number of complaints to the NCA and, ultimately, to litigated
disputes, may be dealt with in a manner that is satisfactory both to consumers
and the service providers with whom they interact.
(ii)
The NCA and individual redress
8.16
In addition, the 2007 Act also includes a number of provisions under
which the NCA is empowered to seek financial redress on behalf of consumers,
whether as individuals or collectively. Thus, under section 70 of the 2007 Act,
the NCA may accept written undertakings from traders that they will refrain
from certain unfair commercial acts or practices that are prohibited by the
2007 Act. In addition to commitments to cease engaging in prohibited acts or
practices and to comply with the 2007 Act, such undertakings may also include
commitments to compensate consumers or a class of consumers, including
reimbursing any money or returning any other property or thing received from
consumers in connection with a consumer transaction. Similarly, under section
78 of the 2007 Act, the NCA may, with the consent of the consumer, apply to
court for a “compensation order”, requiring a trader convicted of an offence
under the 2007 Act to “pay an amount of money the court considers appropriate
compensation in respect of any loss or damage to that consumer resulting from
that offence.” These provisions are without prejudice to section 71 of the 2007
Act, which provides that a consumer who has been materially affected by any act
or practice of a trader that is prohibited by the Act may apply to court for
damages for a breach of the terms of the 2007 Act.
(iii)
The NCA and informal redress
8.17
The NCA has also sought informal redress, akin to a mediator, where
there may (or may not) not have been a formal breach of the 2007 Act. For
example,[945]
in 2008 an Irish retailer using the well-known British brand name Habitat announced
that it had ceased trading with immediate effect, leaving a large number of
consumers with undelivered goods and others with unredeemed gift vouchers from
its two shops. The Irish shops had stocked Habitat merchandise but they
operated as a franchise of the English company and had no formal corporate link
with it. After the closure of the Irish shops, the NCA wrote to the English
company enquiring whether it would honour arrangements entered into and gift
vouchers. The letter to the English company noted: “Habitat customers in Ireland
would not have been aware of the ownership structure of the Irish operation and
would have assumed that they were dealing with a store in the Habitat group.
Accordingly, the Agency [NCA] expects that Habitat UK will meet its commitments
to Irish customers and ensure that they do not suffer financial loss due to the
trading difficulties of the Irish stores.” Within 24 hours, and after
considerable media coverage, the British company stated publicly that it would
honour any outstanding order and that the Irish gift vouchers could be used in
any Habitat store in the United Kingdom. Given that no formal litigation was
initiated, it is difficult to state with any certainty whether the English
company was required to give the informal undertakings in this case but this
provides an example of how the NCA acted as a collective mediator for a large
group of consumers.
(b)
Ombudsmen and Collective Consumer Redress
8.18
The previous paragraphs
have discussed how the NCA can also operate as an Ombudsman-like agency. In
addition, as the Commission has previously noted, Ombudsman schemes can provide
collective redress to consumers and are used successfully as a method of
dealing with multi-party scenarios without resorting to litigation.[946]
(c)
Other
Regulators
8.19
The Commission has already described the general regulatory role of the
National Consumer Agency (NCA).[947]
Other examples of regulatory bodies in specific areas having an input on
consumers in Ireland include: ComReg
(which regulates telecommunications in Ireland);[948]
the Commission for Energy
Regulation (which regulates the gas and electricity
suppliers);[949]
the Commission for Taxi Regulation;[950]
the Commission for Aviation Regulation;[951]
and the Financial Services Regulator.[952]
8.20
The Financial Regulator’s statutory Consumer Protection Code (CPC) 2006
is binding on all regulated financial services providers and intermediaries in
relation to their Irish sales. It contains a set of general principles,
applicable to sales of all financial services and products, together with more
detailed rules applying to specific financial providers and services. In
accordance with its powers under the Central Bank Act 1942 (inserted by
the Central Bank and Financial Services Authority of Ireland Act 2004)
the Financial Regulator may impose administrative sanctions (including
penalties of up to €5 million) to regulated entities that breach its
provisions. Where a requirement of the CPC conflicts with a requirement of any
voluntary code (such as the codes of conduct of the Irish Insurance Federation
and Irish Banking Federation) the CPC takes precedence. Paragraphs 46 to 48 of
the CPC require regulated entities to have in place written procedures for handling complaints.[953]
These must include informing the consumer of the right to appeal to the
Financial Services Ombudsman or Pensions Ombudsman.
(d)
Appeals Bodies
8.21
The Commission has noted that the Financial Services Ombudsman and the
Pensions Ombudsman may act as an appeals body for a complaint under the 2006
Financial Regulator’s Consumer Protection Code. There are also a number of
other statutory appeals bodies in Ireland. These include for example
·
Agriculture Appeals Office: this is an independent, statutory appeals
body which provides an appeals service to farmers if they are dissatisfied with
decisions made by the Department of Agriculture & Food in respect of
applications for grant-aid. Decisions of the Agriculture Appeals Office can be
appealed to the Office of the Ombudsman;[954]
·
Office of the
Appeal Commissioners : the Appeal Commissioners are
responsible for hearing appeals by taxpayers against decisions of the Revenue
Commissioners concerning taxes and duties;[955]
·
Social Welfare Appeals Office: the Social Welfare Appeals Office
operates independently of the Department of Social and Family Affairs and the
Social Welfare Services Office. It is headed by the Chief Appeals Officer who
is also Director of the Office. If a person disagrees with the decision of the
Deciding Officer of the Social Welfare Services concerning their social welfare
entitlements, they have the right to appeal to the Social Welfare Appeals
Office;[956]
·
Health Repayment Scheme Appeals Office: this
is an independent office established to provide an appeals service to
those who wish to appeal the decision of the Scheme Administrator under the Health
(Repayment Scheme) Act 2006.[957]
(e)
Professional
Bodies
8.22
Trade associations or professional bodies such as the Register of Electrical Contractors of Ireland,[958]
Engineers Ireland,[959]
Construction Industry Federation,[960]
and the Irish Medical Organisation[961]
exist to represent the members of their industry. Many such bodies have codes
of practice which members of the industry must comply with, and ADR mechanisms
available for resolution of consumer disputes which arise within their
industry.
8.23
The Advertising Standards Authority for Ireland (ASAI) was established
in 1978 by the advertising industry to promote and monitor standards
advertising, promotional marketing and direct marketing.[962]
Its objective is to ensure that all commercial marketing communications are
'legal, decent, honest and truthful'. The ASAI Code of Standards for
Advertising, Promotional and Direct Marketing outlines a minimum set of
standards and principles for member companies' dealings with their customers
and includes procedures for handling customer disputes.[963]
(i)
Industry
Arbitration Schemes
8.24
The Commission notes that some industry bodies
have established arbitration schemes in conjunction with the Chartered
Institute of Arbitrators, Irish branch, for the resolution of consumer
complaints.
(I)
Society of the Irish Motor Industry
8.25
In 2003, the Society of the Irish Motor Industry (SIMI) established an
arbitration scheme in conjunction with the Chartered Institute of Arbitrators,
Irish branch.[964] The scheme
allows for determination of complaints by consumers against SIMI members, many
of which are complaints in respect of vehicles purchased from SIMI members. The
arbitration clause is contained in pre-printed forms prepared by SIMI for its
membership. In addition to arbitration, the customer has the option of going to
mediation or alternatively of having the claim assessed by SIMI’s own Retail
Motor Industry Standards Tribunal whose recommendations are binding on the SIMI
member but not on the customer.[965]
The scheme has fixed costs and a 90-day completion period for the arbitration
process.
(II)
Tour Operators Holiday Package Scheme
8.26
The Tour Operators Holiday Package Scheme was established in 1993 and
was negotiated with the Irish Tour Operator’s Federation and also the Irish
Travel Agents Association. In addition to these bodies the Scheme also operates
for a number of private operators who are not members of these organisations.
The scheme is based on an arbitration clause incorporated by the Tour Operators
within their booking forms.[966]
(III)
Schemes in the United Kingdom
8.27
In the United Kingdom, IDRS Ltd. offers a range of over 100 ADR schemes
usually through a group or trade association.[967]
The two most significant schemes are the CISAS scheme and the Arbitration
Scheme for the Travel Industry which is operated for ABTA, the Association of
British Travel Agents. The CISAS scheme is approved by Ofcom, the independent
regulator and competition authority for the UK communications industries and
the scheme offers a free and independent consumer adjudication service to consumers
of more than 200 fixed line, mobile and internet service providers. The scheme
is limited to claims of less than £5,000 for any one customer and must not
involve a complicated issue of law. Once the adjudicator’s decision is made it
becomes binding if the customer accepts it within 6 weeks.[968]
8.28
Research published in 2004 indicated that provision of ADR in the UK for
consumer problems is ad hoc.[969] Aside from
a few active schemes, the 2004 research suggested that consumers with an
unresolved complaint over goods and services face very little in the way of a
choice between using ADR and going to court. This research concluded that there
is a major gap between UK government policy of promoting ADR and the
on-the-ground reality of access to effective, affordable ADR for consumers.[970]
D
Cross
Border Consumer Disputes
(1)
European
Consumer Centre Dublin
8.29
In October 2001, the European Commission and Member States established
the European Extra- Judicial Network (EEJ-Net).[971]
The network aims to help consumers resolve their cross-border disputes through
ADR schemes. It operates through clearing houses located in each Member State.
In Ireland, the clearing house is the European Consumer Centre (ECC). ECC
Ireland gives advice to consumers on their rights and also assists consumers
with cross-border disputes by intervening on their behalf with the trader in
the other relevant country. ECC Ireland also produces reports and opinion
papers, engages in joint projects within the ECC Network, and carries out
consumer information campaigns.[972]
8.30
In 2007, ECC Ireland dealt with over 3,500 consumer contacts. The
majority of these related to giving advice on cross-border consumer problems,
while in almost 500 cases the ECC was required to intervene with the trader on
the consumer’s behalf. In 2007, ECC Ireland secured €84,000 in refunds and
compensation for consumers.[973]
ECC Case Study
An Irish consumer purchased a
camcorder online but shortly after receiving the item, he discovered a fault.
The consumer was unable to install the relevant software that came with the
product that would enable him to download pictures and video to his PC. He
returned the product directly to the seller in France for repair and received
it back over a month later without any explanation of the fault or details of
the repairs carried out. He discovered that the problem still existed, and
despite numerous emails and phone calls to the company, he was unable to get a
satisfactory reply to his request for a full refund. He contacted the ECC who
was able to obtain a full refund for the consumer, plus the additional shipping
costs he faced in sending it back to the company.[974]
8.31
When ECC Ireland cannot solve a complaint through intervention with the
trader, the dispute is assessed and forwarded to a relevant ADR body, where
available. In 2007, a total of 96 cases were closed unresolved, despite ECC
Ireland’s intervention with the relevant trader. In these cases, ECC Ireland
sought to refer these cases to an ADR body, but only 20 were referred to ADR
and 76 disputes remained unresolved.[975]
According to ECC Ireland:
“This is simply because enough ADR bodies do not exist; no
ADR body could be found to which the case could be referred. Of particular
concern is that fact that Ireland has no ADR body that deals with air passenger
complaints, as most unresolved disputes against Irish traders fall under this
category.”[976]
8.32
In Ireland, the Department of Enterprise, Trade and Employment is
responsible for recommending ADR bodies to the European Commission.[977]
This notification process seeks to ensure common minimum requirements from
bodies across the EU which creates a consistent standard of quality. The
notification process also means that consumers can have similar expectations
from ADR bodies across the Member States.[978]
Criteria for a successful application include the principles of independence of
the organisation, and transparency of the proposed resolution procedure.[979]
ECC Dublin works closely with the Department to nominate suitable ADR bodies.
In Ireland, there are currently 5 nominated ADR bodies:
·
Advertising Standards Authority of Ireland;
·
The Financial Services Ombudsman;
·
Scheme for Tour Operators, Chartered Institute of Arbitrators;
·
The Direct Selling Association of Ireland; and
·
The Office of the Pensions Ombudsman.
8.33
Although ADR Bodies exist in Ireland, ECC Ireland have stated that the
cross-border areas that are most problematic for EC consumers do not have ADR.[980]
This means that many cross-border complaints remain unresolved.[981]
Since 2002, ECC Ireland has handled a total of 328 disputes involving Irish and
non-Irish companies. 34% of the overall disputes received were against Irish
retailers while 17% of these where forwarded to an ADR Body in Ireland. Of
these 55 disputes, with one exception, only those that related to car rental
could be sent to a relevant ADR body.[982]
ECC Ireland had to inform the remaining EC consumers who had a dispute against
an Irish retailer that nothing further could be done to resolve their disputes
due to the lack of ADR bodies. ECC Ireland has stated: “This is a cause of
grave concern as all of these disputes were valid in terms of the consumer’s
legal entitlement to redress.”[983]
8.34
In its 2008 report The development of Alternative Dispute Resolution
(ADR) in Ireland : An analysis of complaints, best practice and future
recommendations[984] ECC Ireland made the following recommendations in
relation to consumer disputes and ADR:
·
Develop consumerconnect.ie to include information on existing ADR
bodies, and their function in resolving complaints, in addition to the small
claims procedure;
·
Develop tips on ‘what to look out for before you buy’ and include
information on checking whether a business has a complaints procedure or is
part of a dispute resolution scheme;
·
Develop and publicise specific codes of practice for industry and urge
consumers to seek adherence to these codes when choosing a trader;
·
Promote the benefits of participation in ADR to businesses and business
organisations by demonstrating the costs involved in current lack of systemic
redress;
·
Take on board the Recommendation on Consumer Dispute Resolution and
Redress adopted by the OECD Council on 12 July 2007;
·
Target development in key problem sectors – ecommerce and the airline
industry by engaging in discussion with those industries regarding dispute
resolution choices.
·
Consider creation of logo/symbol as a visual stamp of approval for
business Codes of Practice in order to encourage best business practice and
publicise same. An example of where this has been done successfully is the UK’s
Office of Fair Trading and the Direct Selling Association UK;
·
Encourage notification of ADR bodies in order to ensure uniformity of
standards and build customer assurance; and
·
A logo should be designed and awarded to notified ADR bodies so that
consumers of their member companies can be more aware that they offer dispute
resolution if something goes wrong. Under EU Recommendations 98/257/EC &
2001/301/EC relating to arbitration and mediation, a code of practice for an
ADR logo / symbol already exists which can be employed.
8.35
The Commission considers that these recommendations are worthy of
further analysis and therefore invites submission as to how they might, for
example, be incorporated into a statutory Code of Practice.
8.36
The Commission invites submissions as to whether the recommendations
in the European Consumer Centre’s 2008 Report The development of Alternative
Dispute Resolution (ADR) in Ireland : An analysis of complaints, best practice
and future recommendations should be incorporated into a statutory Code of
Practice concerning mediation and conciliation in consumer disputes.
(2)
FIN-NET
and the Financial Services Ombudsman
8.37
The Financial Services Ombudsman’s Bureau cooperates with FIN-NET which is a financial
dispute resolution network of national out-of-court complaint schemes in the
European Economic Area countries.[985]
It is responsible for handling disputes between consumers and financial
services providers, i.e. banks, insurance companies, investment firms and
others with a cross-border element. This network was launched by the European
Commission in 2001.[986] It aims to
·
provide customers with easy and informed access to out-of-court redress
in cross-border disputes;
·
to ensure the efficient exchange of information between European schemes
so that cross-border complaints can be handled as quickly, efficiently and
professionally as possible; and
·
to ensure that out-of-court dispute settlement schemes from different
European Economic Area countries apply with a common set of minimum
guarantees for consumers.[987]
8.38
The network brings together more than 46 different national schemes that
either cover financial services or handle consumer disputes. Members of FIN-NET
are linked through a memorandum of understanding which, besides setting out the
procedural framework for cross-border cooperation, lays down basic principles
for out-of-court dispute settlement.[988]
The memorandum of understanding includes a declaration of intent from the
bodies to apply the quality standards set out in the 1998 European Commission
Recommendation on principles applicable to bodies responsible for out-of-court
settlement of consumer disputes.[989]
The 1998 recommendation contains 7 principles, namely:
·
independence of the dispute settlement body to ensure the
impartiality of its actions;
·
transparency of the scheme to ensure that the consumer has all
the necessary information about the procedure and that the results obtained can
be objectively assessed;
·
adversarial procedure to ensure that the consumer has the
possibility to present all their views and are informed about the arguments of
the other party;
·
effectiveness of the procedure to ensure that the consumer will
benefit from the advantages of an alternative dispute settlement, including:
access without being obliged to use a legal representative; a procedure that is
free of charge or of moderate cost and swift; and an active role of the dispute
settlement body enabling it to take into consideration any factors conducive to
a settlement of the dispute;
·
legality to guarantee that the decision taken by the dispute
settlement body does not deprive the consumer of the protection afforded by the
relevant consumer protection legislation;
·
liberty to ensure that the decision taken may be binding on the
consumer only if they are informed of its binding nature in advance and
specifically accept this after the dispute in question has arisen; and
·
representation to ensure that the consumer has the possibility to
be represented in the procedure by a third party if they wish.[990]
8.39
Governments of EC Member States were asked to notify the European
Commission of out-of-court dispute settlement bodies in their State that comply
with the principles of the Recommendation. FIN-NET only includes schemes that
have been notified by their Member States.[991]
8.40
In 2007, FIN-NET handled 1,412 cross-border cases.[992]
Of these, 107 complaints were referred to the Irish Financial Services
Ombudsman’s Bureau through the FIN-NET scheme.[993]
(3)
European
Small Claims Procedure
8.41
In 2007, the European Community adopted a Regulation establishing a
European Small Claims Procedure (ESCP).[994]
The objective of such a procedure is “to facilitate access to justice”[995]
and “… simplify and speed up litigation concerning small claims in cross-border
cases.”[996] A claim is
considered a small claim where its value does not exceed €2,000 and involves
civil and commercial matters.[997]
8.42
Under the procedure a claimant may initiate a claim by completing a
European Small Claims Application form and lodging it with the court with
jurisdiction (in Ireland this is the District Court).[998]
The ESCP will usually be a written procedure but the Court may decide to hold
an oral hearing if it considers it necessary or if the parties request it.[999]
If one of the parties to the dispute requests an oral hearing this can also be
refused by the Court if they feel it is not necessary. The claim form and
supporting documents must be submitted to the court in the language/s
acceptable to the particular Member State.
8.43
The unsuccessful party will bear the cost of the proceedings, as
determined by the court.[1000] The
decision of the court can be appealed and information on appealing a decision
will be made public by the Commission once available.[1001]
E
Online
Dispute Resolution of Consumer Disputes
8.44
In response to the growth of the online marketplace in particular,
methods for allowing the resolution of disputes to themselves take place on the
Internet have been developed. Online dispute resolution (ODR) has been
identified as a fundamental aspect of consumer protection, as litigation and
the common forms of alternative dispute resolution do not meet the needs of
customers, predominantly because of distances in transborder cases and
disproportionate costs.[1002] The
principal types of dispute resolution mechanisms currently offered online are
automated negotiation,[1003] assisted
negotiation,[1004] online
mediation, and online arbitration.[1005]ODR has proved to be an effective tool for resolving small
value claims amongst consumers. The most famous example is SquareTrade, which
has an exclusive contract with the popular online auction house e-Bay.
SquareTrade offers two levels of ODR to e-Bay users: direct negotiation and
mediation. By 2007, over 2 million disputes across 120 nations in 5 different
languages have been resolved using this platform.[1006]
(1)
Electronic
Consumer Dispute Resolution
8.45
The Electronic Consumer Dispute Resolution (ECODIR) project was
established in 2001 and stems from a university initiative supported by the
European Commission and Irish Department of Enterprise, Trade and Employment.[1007]
The aim of the ECODIR Project is to set up a system devoted to the electronic
resolution of Internet disputes arising between consumers and businesses. It
involves a three step process of negotiation, mediation, and recommendation. A
case is only escalated to the next phase where both parties agree, and a
resolution can be reached at any stage.
8.46
To initiate a case, the consumer must provide a limited amount of
personal information, contact details of the other party, and details of their
dispute. They are prompted to provide details of the dispute by a standard form
asking whether their dispute relates to products and services, financial
issues, commercial practice or privacy. They are then asked to identify a
solution from a number of possibilities and to explain the reasons for their
choice. They may upload supporting documentation if they wish. Once the
consumer has completed the case filing, an email is automatically sent to the
second party. This email gives some detail on the ECODIR project and informs
the second party that a case has been initiated against it. Should the second
party agree to enter negotiations, the negotiation phase is initiated.
Participation in ECODIR is therefore entirely voluntary. This is consistent
with the Commission’s view of alternative dispute resolution procedures.[1008]
8.47
The second party can accept the consumer's proposal, reject it, or make
a new proposal, via the ECODIR website. The parties have 18 days to “swap” such
proposals in an attempt to reach an agreement. If after 18 days they have not
agreed on a solution, ECODIR invites them to participate in the mediation
phase. Either party can also request escalation to the mediation phase at any
point during the 18 days. For the case to escalate to the mediation phase, the
consent of both parties is required. The ECODIR Secretariat will then appoint
an independent and qualified mediator from its panel. The mediation phase can
last for up to 15 days. If no agreement is reached during the mediation phase,
the recommendation phase is automatically initiated. Within four days of the
initiation of the recommendation phase, the mediator must make a recommendation
and give reasons for it. This will be based on principles of fairness and
justice but will not be legally binding unless the parties have agreed to be so
bound. Therefore, it can be noted that the process moves from mediation to
conciliation.
8.48
From October 2001 to January 2004, ECODIR resolved 115 cases. The
majority of cases were cross-border disputes (65%), with a further 29% of
domestic cases where the claimant and respondent were from the same country.
Almost all of the initial transactions giving rise to disputes involved the
Internet to some degree, whether in the form of an online order or simply in an
exchange of emails. Most of the disputes were between a commercial party and a
consumer (B2C) with the consumer filing the complaint. Since 2004, ECODIR has
received a new case every 2 to 3 weeks.[1009]
(2)
The
Internet Ombudsman
8.49
In 2007, ECC Ireland was approached by The Internet Ombudsman (TIO) an
online dispute resolution organisation, seeking their involvement in their ODR
scheme.[1010] ECC
agreed to participate in a 6 month pilot project during 2008 involving the
referral of unresolved online shopping disputes to the TIO service. For the
duration of the pilot only Irish / UK online shopping disputes are to be
referred. Consumers can register their complaint about a product or service
that they have purchased on the Internet and have it resolved by neutral
conciliators and adjudicators. This is a two stage process. Firstly the dispute
is dealt with through mediation and if this does not succeed, then another
neutral. The Internet Ombudsman will consider the joint discussions that have
taken place, as well as responses to further questions he or she may raise and
then rule on an appropriate and fair outcome. At the conclusion of the pilot
phase a short Report is to be drafted and made available on the ECC web site.[1011]
8.50
In France, since 1997 IRIS Mediation (Imaginons un Réseau Internet
Solidaire) provides mediation services for disputes between internet users. Le
médiateur du net, a private body, deals with disputes arising from electronic
commerce.[1012] In
Austria, the Internetombudsman, another private body, offers online dispute
resolution for e-commerce complaints.[1013]
In Germany, a similar institute, the Ombudsmann.de, deals with conflicts concerning
online shopping transactions. The pre-requisites are that the buyer is a
consumer resident in Germany and the retailer is a commercial seller with its
place of business in the European Union. Finally, the parties must agree to
settle the dispute out of court.[1014]
The Arbitration body of the Chamber of Commerce of Milan, Risolvionline, offers
online conciliation but is not limited to consumer disputes.[1015]
8.51
In its 2002 Report Building Trust through the Legal Framework,
the Information Society Commission Legal Affairs Group recommended that, as
part of a twin-track process, the Department of Justice, Equality and Law
Reform should continue to encourage the development of online arbitration
systems for both business-to-business (B2B) and for business-to-consumer (B2C)
e-commerce. Progress in each area would, it considered, reinforce Ireland’s
attractiveness as an international centre for dispute resolution. The Report
also recommended that the Government should continue to encourage the
development of online dispute resolution models.[1016]
8.52
Similarly, Forfás recommended in its 2002 report Legislating for Competitive
Advantage in e-Business and Information & Communications Technologies
that the Government should assess the possible role of an online ombudsman in
providing a conciliation service between consumers and firms trading over the
Internet and in adjudicating any disputes arising. The Report also recommended
that if the Irish Courts are to operate as an effective mechanism for the
appeal and review of e-ADR, the electronic systems used would have to be
integrated or shared. It also stated that mechanisms by which the online ADR
and the e-Courts could be integrated, building upon the 27th Interim Report
of the Committee on Court Practice and Procedure.[1017]
8.53
The Commission is also aware of the ongoing work of the Courts Service
in its development of an eCourts strategy[1018]
and invites submissions on how the 2002 Reports on online dispute resolution
can be further developed.
8.54
The Commission commends the recommendations on online dispute
resolution of consumer disputes made by the Information Society Commission in
its 2002 Report Building Trust and by Forfas in its 2002 Report Legislating for
Competitive Advantage in e-Business and Information & Communications
Technologies and invites submissions as to whether they should be incorporated
into a statutory Code of Practice concerning mediation and conciliation in
consumer disputes.
F
Small
Claims Court
8.55
Since its inception as a pilot scheme in 1991 the Small Claims Court,
which operates in the District Court, has become an invaluable tool in allowing
consumers to assert their consumer rights.[1019]
The success of this scheme led to the establishment of the procedure nationwide
1993. The main advantage of the procedure from the consumer perspective is that
their only liability in terms of cost is the €15 fee which is payable in
respect of their claim.[1020] The
types of claims which are dealt with by the Small Claims Court include:
·
a claim for goods or services bought for private use from someone
selling them in the course of a business (consumer claims)
·
a claim for minor damage to property (but excluding personal injuries)
·
a claim for the non-return of a rent deposit for certain kinds of rented
properties, for example, a holiday home or a room / flat in a premises where
the owner also lives.
8.56
However the Small Claims Court cannot accept claims relating to debts,
personal injuries, goods purchased on hire purchase or breach of leasing
agreements.
8.57
Small claims are processed initially by the District Court Clerk, called
the Small Claims Registrar. If a claim is disputed by the respondent or the
respondent makes a counterclaim, the Registrar may bring the parties together
informally in an effort to assist the parties to reach an agreement. If an
agreement cannot be reached the Small Claims Registrar may then fix a date,
time and location for a hearing of the claim before a judge of the District
Court. Both the applicant and the respondent have the right to appeal an order
of the District Court to the Circuit Court.
8.58
Applications under the Small Claims procedure increased by almost 25% in
2007, from 2,990 in 2006 to 3,734 in 2007. Applications relating to damage to
private property increased by over 90%, from 158 in 2006 to 303 in 2007.
Applications relating to holidays accounted for 10% of the total claims. There was
a considerable increase in the applications which could not be dealt with under
the Small Claims procedure, from 44 in 2006 to 589 in 2007. [1021]
8.59
Since 2006, the Small Claims Court operates an online dispute resolution
procedure where claims can be filed online. The main advantage of the online
initiative is that it makes the procedure more accessible to consumers. The
Small Claims Online system allows applicants lodge claims 24/7 over the
internet, pay the court fee online and follow the progress of their application
as it progresses through the various stages of the process using a unique
personal identifier (PIN). If the respondent accepts the claim, or if he does
not reply to it within 15 days, the District Court will make an order in the
complainant’s favour for the amount claimed. This must be paid in a specified
period of time by a cheque which will be sent by post to the claimant without
the need to attend court.[1022] Of all
applications received in 2007, 1,552 or 41.5% were received through the Small
Claims Online System.[1023]
8.60
It has been suggested that the maximum claim currently possible under
the Small Claims Court, €2,000, is relatively low. The 2006 Report of the
Legal Costs Working Group recommended that consideration should be given to
a substantial increase in the jurisdictional limit of the Small Claims Court
and that the range of cases dealt with by means of this procedure should be
expanded. It recommended that the jurisdictional limit be increased to €3,000.[1024]
In its 2008 Report on Multi-Unit Developments the Commission also
recommended that the Small Claims Court should have its jurisdiction increased
to €3,000.[1025]
The Commission takes the opportunity to reiterate that recommendation in the
wider context of this Consultation Paper.
8.61
The Commission provisionally recommends that the jurisdictional limit
of the Small Claims Court be increased to €3,000.
G
Redress
Mechanisms in Other Jurisdictions
8.62
Innovative redress mechanisms have been successfully developed in other
jurisdictions. The Commission now turns to discuss some of these redress
schemes.
(1)
Sweden
8.63
In Sweden, the National Board for Consumer Complaints investigates
disputes between consumers and traders about goods, services or other utilities
intended primarily for private use.[1026]
The Board submits recommendations on how disputes should be resolved, for
example that the business operator should repair the defect on a product. The
Board's recommendations are not binding, but the majority of companies
nonetheless follow them. The process at the Board is purely in writing. Both
parties have the right to submit written evidence in the form of, for example,
contracts or certificates of inspection. The dispute is usually settled at a
meeting with the department under which the matter falls. The parties are not
entitled to be present at the meeting.
(2)
Denmark
8.64
Similarly in Denmark, the Consumer
Complaints Board deals with complaints from private consumers concerning goods,
labour or services provided by businesses.[1027]
A complaint is dealt with on the basis of written documentation, and oral
statements may not be made by the parties during meetings of the Board. A
complaint may be referred to the Board only if it has already been addressed to
the business concerned. The Consumer Complaints Board consists of a chairman
and members representing the interests of consumers and trade and industry. The
chairman must be a judge and may not have any specific affiliation to consumer
or trade and industry organisations. Decisions are not binding or enforceable.
When the Board has made a decision, the matter may be brought to court by
either party. If the Board’s decision is not complied with, the
secretariat may bring the matter to court at the request and on behalf of
the consumer. As with the Swedish system, decisions are not binding. If a
decision is not complied with by a business, the case may be brought before the
civil courts. Such cases are subject to special regulations under which the
consumer may receive legal aid. Under a special scheme, a decision may also be
brought to court by the Danish Consumer Council. An innovation in this area is
a list published on the Internet listing businesses that have not complied with
Consumer Complaints Board decisions. However, if the business wants the case
brought to court, its name may not be published until final judgment is
pronounced in the case.
(3)
Norway
8.65
In its 2008 Report already referred to, ECC Dublin recommended
the redress system for consumers in Norway as a model for best practice in
Ireland.[1028] The
Norwegian model is a hybrid system which means that a statutory Consumer
Dispute Commission with the authority to make legally binding decisions (Forbrukertvistutvalget
– the FTU) exists side by side with voluntary, industry specific complaints
boards.[1029]
8.66
The Norwegian Consumer Council gives advice and information to consumers
but also mediates on their behalf with the business. The Consumer Council is
Norway’s largest provider of free legal aid, and deals with approximately
140,000 enquiries from the public annually.[1030]
If the matter cannot be resolved, it refers the case to either the Consumer
Dispute Commission or to a Voluntary Complaint Board. The Consumer Dispute
Commission handles complaints by deciding on the dispute once the parties have
had the opportunity to state their cases.[1031]
During both mediation and the remainder of the complaints procedure, the
Consumer Dispute Commission takes an impartial and unbiased approach within the
framework of the relevant legislation.[1032]
The Commission’s decisions are enforceable. However, both the consumer and the
trader have a period of 4 weeks to appeal the Commission’s decision through the
Norwegian court system. The Commission handles approximately 900 cases a year.
In 2007 only 3% of cases were appealed to the District Court.[1033]
8.67
If the complaint is still unresolved in an informal manner the Consumer
Council may forward the case to a ADR voluntary complaint board rather that the
Consumer Dispute Commission. The voluntary complaint boards are
industry-specific and are set up by agreement between the trade organisations
and the Consumer Council and are financed by the businesses. Each complaint
board is made up of representatives of the consumer and business and a neutral
chairman Decisions reached by the Boards are advisory and not binding.[1034]
Therefore, the process can be likened to conciliation.
8.68
When a decision is reached by a voluntary complaint board and the
company in question fails to comply with the recommendations, the information
is given to the Consumer Council, which uploads this information onto their web
site making it available to the public. This method of “naming and shaming” has
proved to be an effective incentive for the compliance of companies to the
decisions reached by the voluntary complaint boards.[1035]
8.69
ECC Dublin has indicated that the creation of such a body in Ireland
could also benefit Irish consumers by bridging the gap for disputes which
exceed the Small Claims Court limit yet are not of sufficient ‘value’ to take
to the District Court and could also act as a very useful ADR system for the
resolution of cross-border consumer disputes.[1036]
(4)
Queensland: Commercial & Consumer Tribunal
8.70
The Queensland Commercial and Consumer Tribunal is an independent quasi
judicial decision-making body which commenced operation in July 2003. The
Tribunal operates under the Commercial and Consumer Tribunal Act 2003.
The Tribunal is a low cost means of resolving commercial disputes. Costs range
between $56 for a party with no financial interest in the dispute, to $223 for
a commercial issue such as a building dispute.[1037]
8.71
The Tribunal reports that its mediators achieve a high success rate for
assisting parties to resolve their dispute at the early stages of the
proceedings. Mediators achieved a success rate of 70% in domestic and
commercial building disputes referred to mediation, negotiating settlements
worth a total of $5.6m compared with $2.4m during 2005-06. The Tribunal uses a
panel of approximately 45 qualified and experienced mediators who are located
throughout Queensland. All mediators appointed by the Tribunal must be
accredited and are selected to ensure they have the right mix of mediation
skills and subject knowledge. This has contributed significantly to the high
success rate of mediated outcomes.[1038]
Tribunal decisions can be appealed to the District Court on the grounds of an
error of law or want of jurisdiction.
9
CHAPTER 9 Property Disputes & ADR
A
Introduction
9.01
In this chapter the Commission explores the potential role for ADR in
the resolution of specific types of property disputes. In Part B the Commission
examines the role for ADR in the resolution of property disputes between
neighbours. Part C discusses landlord and tenant disputes and the dispute
resolution mechanisms which are available through the Private Residential
Tenancies Board. In Part D the Commission considers whether ADR has any role to
play in the resolution of planning application disputes.
B
Neighbour
Disputes & ADR
9.02
One of the most common and acrimonious types of disputes between
neighbours is the issue of boundary lines between adjoining properties. Such
disputes "can be fought with a passion that seems out of all proportion to
the importance of what is involved in practical terms."[1039]
(1)
Nature
of Boundary Disputes
9.03
In the early 17th century Sir Edward
Coke noted that “the house of every man is to him his Castle and Fortresse, as
well for his defence against injury and violence, as for his repose.”[1040]
This sense of personal space remains a central part of home ownership in the
Ireland of the 21st century so that disputes between neighbours are
often different from other types of disputes. They are, by their very
definition, closer to home and so can be more intrusive in ones personal life.[1041]
Indeed, it is said that “only a marriage separation is more contentious than a
neighbour dispute and it is for this reason that the parties often lose sight
of objectivity.”[1042]
9.04
The Irish Courts have repeatedly commented on how neighbour disputes
escalate beyond all reasonableness. For example, in 2004, in a claim involving
a 30 year old dispute over a plot of land betwen two separate generations of
families, Judge Groarke of the Circuit Court likened it to John Keane’s play The
Field, stating that “Bull McCabe is alive and well and living in
Blessington. It is surprising to see quite that level of theatre played out in
court like it was today.”[1043] In a
2004 Circuit Court claim involving a 19 year dispute over a right a way between
two families, Judge Doyle urged the families to “bury the hatchet and see some
sense.”[1044]
9.05
As noted by Ward LJ in the English case of Alan Wibberley Building
Ltd v Insley:[1045]
“To hear those words, 'a boundary dispute', is to fill a
judge even of the most stalwart and amiable disposition with deep foreboding
since disputes between neighbours tend always to compel…some unreasonable and
extravagant display of unneighbourly behaviour which profits no one but the lawyers.”
9.06
This case proceeded to the House of Lords, the highest Court in the
United Kingdom judicial system, where Lord Hoffman noted that “boundary
disputes are a particularly painful form of litigation. Feelings run high and
disproportionate amounts of money are spent. Claims to small and valueless
pieces of land are pressed with the zeal of Fortinbras's army.”[1046]
9.07
It has been pointed out that these disputes become particularly
difficult, not because they involve complex legal problems, but because the
“personalities of the parties often lies at the root of the problem.”[1047]
Very often the boundary dispute is a proxy for an underlying dispute between
the neighbours. It has been noted that a formal legal system approach to the
boundary dispute may not resolve the real dispute:
“If the right of way issue is so reduced to the allegation of
trespass, met by the counter allegation of prescriptive user, the danger is
that we will never reach the real, underlying problem between the parties and
therefore never resolve it. Someone will win the case and someone will
inevitably lose but the dispute - the actual dispute between the parties - will
break out again and again perhaps at some other place and even perhaps in some
other generation.”[1048]
9.08
It is important, therefore, to identify at the outset precisely what the
goals and underlying interests are of each of the parties before they become
deeply entrenched in their positions and litigation commences.[1049]
(2)
Appropriateness
of ADR for Resolution of Boundary Disputes
9.09
In the English case Barker v Johnson,[1050]
where a dispute had occurred between neighbours over an easement of drainage,
Ward L.J. stated that
“I would urge these parties to seek the help of this court's
ADR service in order to explore whether a compromise would not only enable this
litigation to be killed off sooner rather than later, but that some sense of
compromise might bring a greater sense of happiness and peace in the respective
homes of neighbours who continue to live together and should do so with
civility rather than continuing acrimony.”[1051]
9.10
While it is important to note that parties to a boundary dispute have
the same rights of access to the courts as other persons, it is evident that
such disputes are ripe for ADR because the cost of litigating a property
dispute, both financially and emotionally, can far out-weigh the value of the
claim itself. For example, in the English case Scammell v Dicker,[1052] the case began in 1989 with the defendant seeking a
declaration as to the line of her boundary with the plaintiff’s neighbouring
farm. The case ended 16 years later in 2005, by which time the plaintiff’s
litigation was being funded by the Services Indemnity Fund and the defendant
was receiving legal aid, having spent her savings on the litigation.[1053]
9.11
In Ali v Lane[1054]
and Haycocks v Neville[1055],
the Court of Appeal exhorted professional advisers to use their influence to
prevent clients from litigating over minor boundary disputes. The Court
emphasised that in such cases the professional advisers should regard
themselves as under a duty to ensure that their clients are aware of the
potentially disastrous consequences of litigation of this kind and of the
possibilities of alternative dispute procedures.
(3)
Role
for Mediation in Neighbour Disputes
(a)
Role of the Court in Ireland: A Case Study
9.12
The positive role which can be played by the courts in assisting parties
in a boundary dispute to consider mediation is illustrated by the 2008 High Court
action Charlton v Kenny.[1056] This involved a long-standing dispute between two
neighbouring couples, which received considerable publicity because one of the
plaintiffs is a well known solicitor and one of the defendants is a well known
radio and TV presenter.
9.13
The dispute concerned a small strip of land adjacent to the parties’
houses. It appeared that the plaintiffs had purchased their house with the
adjacent strip of land in 1971. The defendants bought their nearby house some
time later. As the claim was ultimately settled after mediation, it is not
possible to describe definitively the events which led to the dispute or to
ascribe definitive legal significance to them. It appears, however, that from
about 1991 the defendants had used and occupied in some way the strip of land
which adjoined both houses. At some point, the parties began to dispute
ownership of the strip of land and this culminated in the plaintiff initiating
a High Court action in 2006 seeking a declaration that they were the owners of
the strip of land and an injunction to prevent the defendants from entering
onto the land. The defendants put in a full defence to this claim and also
filed a counterclaim, which asserted that they had acquired ownership to the
strip of land by virtue of adverse possession, commonly known as “squatter’s
rights.”
9.14
During the first four days of the hearing of the case in the High Court,
their respective counsel had outlined the evidence that both parties were
likely to give. This appeared to include the prospect that both parties might
give detailed (and possibly conflicting) evidence concerning a number of
unhappy encounters and conversations between them about the disputed strip of land.
The outline given of this prospective evidence was widely reported in the
media. On the fourth day of the hearing, and just before the parties were about
to begin their evidence, the trial judge, Clark J, indicated that she wished to
say something on her own initiative. Addressing both parties, she stated:
"I have no doubt you are very well thought of in your
respective professions throughout the length and breadth of the country. I
would urge you to think long and hard before things are said that cannot be
taken back," she pleaded…You both live in very attractive houses in a very
idyllic setting and you have to go back and live there. It won't be idyllic
when the case is over so please think carefully before evidence is given and I
am in a position having to say I prefer one party's evidence over the
other's."[1057]
9.15
Clark J added: “If this was a Commercial Court case[1058]
or a family law case,[1059] a judge
would be obliged to inquire whether the parties had tried mediation.” The
hearing of the case was then adjourned to allow both parties to consider Clark
J’s intervention. After just over an hour the parties returned to court to
indicate that they had agreed to refer the matter to mediation. It was reported
that the mediation involved 10 hours of discussion (facilitated by a senior
counsel) in the days immediately after the High Court hearing and that, as a
result, the parties reached a settlement in which the defendants agreed to
purchase the disputed strip of land. As with all such settlements and
mediations, this was agreed on the basis that there had been no final decision
on the legal dispute between the parties concerning ownership of the land.
9.16
When the High Court hearing resumed, the parties stated that the case
had been settled by mediation and the content of the mediator’s report was also
read in court. Counsel for both parties expressed their thanks to Clark J for
her intervention and indication that mediation be considered.
9.17
The Commission notes that, in Charlton v Kenny, Clark J
acknowledged the difficulty for litigants that evidence given in court cannot
be “taken back” and that a court decision may inevitably involve preferring the
evidence of one litigant over another. In this respect, mediation may allow
parties (even where their decision to litigate indicates firmly entrenched
positions) to “step back” and address the immediate dispute as well as their
long term relationship, to which Clark J referred in her intervention. While
mediation may not suit all such disputes, the Commission considers that, by
analogy with the approach in the Commercial Court and in family disputes (an
analogy acknowledged by Clark J in Charlton v Kenny), the courts should
continue to be proactive in advising parties to consider mediation or
conciliation, as appropriate. Using the same analogy, the Commission considers
that parties should be advised by their legal representatives to consider
mediation or conciliation prior to commencing litigation.
(b)
Role for Local Authorities & Community Centres
9.18
In the Department of the Environment’s 2001 guidance document on Good
Practice in Housing Management: Guidelines for Local Authorities,[1060]
mediation is recommended as a means of resolving neighbour disputes in housing
estates, including boundary disputes.[1061] In this respect, Dublin City Council has recently introduced a
neighbourhood mediation service. Staffed by trained mediators employed by the
City Council, the service offers local authority residents, involved in
disputes with each other, an independent, non-confrontational and strictly
confidential mechanism to resolve their disagreements through structured
dialogue.[1062]
9.19
A similar development has also emerged in two Dublin Community Law
Centres which have pioneered in Ireland what are known internationally as
community justice centres. The Law Reform Commission of New South Wales
described the benefits of community justice centres in a 2005 Report as
follows:
“Community Justice Centres are said to play a role in the
‘empowerment’ of communities in that they help individuals and communities to
develop their own solutions to their own problems without the need for the
imposition of an external solution…. At a more pragmatic level it can also be
said that CJCs are well placed to deal with neighbourhood and community
disputes and especially provide a valuable outlet for the tensions
which sometimes occur in such disputes.”[1063]
9.20
The two community justice centres in Dublin are organised through the
Northside Community Law Centre and Ballymun Community Law Centre, both
operating in the North Dublin city area. The Commission now turns to discuss
both of these centres.
9.21
Northside Community Law Centre is an independent Law Centre. Operating
since 1975, the Law Centre was the first Community Law Centre in Ireland. The
Centre provides free information, advice and representation to individuals and
groups in its community who otherwise would not be able to obtain legal
services, and also works to empower the community through education, research
and campaigns.[1064] The
Centre also provides a mediation service which is staffed by five trained volunteer
mediators who live and work in the area. According to the Centre:
“Community mediation offers constructive processes for
resolving differences and conflicts between neighbours, local groups and
community based organisations. It is an alternative on the one hand to
avoidance where disputes fester and on the other hand to prolonged litigation
which can be expensive ending up with a win/lose outcome. Above all mediation
gives local people in conflict an opportunity to take responsibility for the
resolution of their own dispute and to come up with their own solutions. Where
this happens, relationships and connections between neighbours get re-built and
the sense of community becomes stronger following the resolution of each
dispute.”[1065]
9.22
Ballymun Community Law Centre was established in 2002 to tackle unmet
legal need in this part of North Dublin city. It provides free legal advice,
information and representation to people within the community. Like the
Northside Community Law Centre, it provides information, advice, assistance,
representation, mediation and education as well as taking a strategic approach
to tackling inequality.[1066] The
Centre also provides a mediation service for resolving disputes between
neighbours, as well as family disputes. Reflecting on the comments of the New
South Wales Law Reform Commission, the Centre notes that “Mediation promotes
understanding, builds trust, and strengthens communities. It provides parties
in conflict to discuss their concerns with the help of a neutral mediator.”[1067]
The Commission welcomes the continued development of such centres and believes
that through community mediation disputes between neighbours can be effectively
and efficiently resolved without recourse to litigation.
9.23
The Commission provisionally recommends the continued development of
mediation and conciliation services by community law centres for the resolution
of community and neighbour property disputes.
(4)
Conclusion
9.24
Most disputes between neighbours can be
amicably resolved by chatting and negotiating over the garden fence. However,
there are instances where a dispute will escalate and require a third party
intervention to help reach a resolution. In this
context, the Commission considers that ADR, and specifically mediation, may
resolve boundary disputes more efficiently than litigation. Mediation has the
potential to preserve a civilised relationship between neighbours and prevent
generations of hostility and unnecessary costly litigation between families.
Mediation provides the parties with the opportunity to address any other
underlying interests or concerns outside of the boundary issue which may have
acting as a catalyst for the escalation of the boundary dispute. If a boundary
dispute is litigated, there can only be one winner.
9.25
The Commission provisionally recommends that property boundary
disputes are appropriate for resolution through mediation and conciliation and
that parties should be advised by their legal representatives to consider and
attempt mediation or conciliation in such disputes prior to the commencement of
litigation.
9.26
The Commission provisionally recommends that the courts should
continue to be pro-active in advising parties in property disputes to consider
the adjournment of hearings to allow the parties to consider mediation or
conciliation.
C
Landlord
& Tenant Disputes
(1)
Private
Residential Tenancies Board (PRTB)
9.27
The Private Residential Tenancies Board was established by the Residential
Tenancies Act 2004. [1068]It has 3 main areas of activity: the
operation of a national registration system for all private residential
tenancies; the operation of a dispute resolution service; and the provision of
information, the carrying out of research and the provision of policy advice
regarding the private rented sector.
9.28
The PRTB Dispute Resolution Service replaces the jurisdiction of the
Circuit Court in relation to the adjudication of residential landlord and
tenant disputes. Disputes can be referred by a wide range of parties including:
tenants; sub-tenants; landlords (but only where the tenancy is registered);
licensees (in certain circumstances); and certain third parties who may be
affected by a landlord’s failure to enforce tenants’ obligations (for example
neighbours).[1069] In 2006, 1,300
disputes between landlords and tenants were referred to the PRTB.[1070]
9.29
The PRTB operates a two-stage dispute resolution system. Stage 1
consists of either mediation or adjudication.[1071]
Stage 2 is a hearing by a Tenancy Tribunal.[1072]
(2)
Mediation
and Adjudication at the PTRB
9.30
There is no definition of mediation in the Residential Tenancies Act,
2004. Section 95 (2) of the 2004 Act states that the ‘mediator’:
“…shall inquire fully into each relevant aspect of the
dispute concerned, provide to, and receive from, each party such information as
is appropriate and generally make such suggestions to each party and take such
other actions as he or she considers appropriate…”
9.31
This description of the mediator’s role highlights that the process is
more consistent with the Commission’s definition of conciliation.[1073]
This is evident from the fact that the mediator may “make such suggestions to
each party” and so that the third party role is not merely facilitating, but
also has an advisory role, which is associated with that of a conciliator.
9.32
Section 101 of the 2004 Act sets out principles which are common to
mediators and adjudicators. Both must:
·
declare to the parties at the outset of dealing with the matter any
potential conflict of interest of which he or she is aware or ought reasonably
be aware.[1074]
·
act at all times in accordance with the highest standards of the
professional body, if any, of which he or she is a member.[1075]
·
maintain the confidentiality of the proceedings concerned.[1076]
9.33
Section 101(4) of the 2004 Act states that “the manner in which a
mediation or adjudication is conducted shall be at the discretion of the
mediator or adjudicator concerned but it shall be the duty of that person to
ensure that the mediation or adjudication is conducted without undue
formality.” This ensures that the processes are flexible as there are no set
procedures for the third party to follow.
9.34
Mediation at the PTRB is voluntary in nature and both parties must
consent to participate in the process.[1077]
If both parties agree to mediation, a PRTB mediator will be appointed to assist
the parties to resolve the dispute. Should either of the parties decide not to
use the services of a PRTB mediator or should the PRTB consider that the case
is not suitable for mediation, a PRTB adjudicator will be appointed to examine
the evidence of the parties and investigate the dispute fully. The adjudicator,
who plays a determinative role in the process, will decide how the dispute is
to be resolved.[1078] A
mediation agreement or adjudication decision that is not appealed will become a
binding determination order of the PRTB.[1079]
(3)
Tenancy
Tribunals of the PRTB
9.35
A dispute will be referred to a Tenancy Tribunal if any of the parties
wishes to appeal the adjudicator’s decision within 21 days or in the event that
mediation is unsuccessful and any of the parties request a Tribunal hearing.[1080]
In certain exceptional cases the PRTB may refer a dispute directly to the
Tribunal, for example where there appears to be imminent risk of damage to the
dwelling or danger to one of the parties.
9.36
Each Tenancy Tribunal consists of three persons who have relevant
professional knowledge and experience.[1081]
The Tenancy Tribunal holds its hearings in public.[1082]
Although its procedures are relatively informal basic court rules are applied.
Where it considers it appropriate the Tribunal may summon witnesses, require
the production of any document and take evidence under oath.[1083]
The parties will be allowed participate fully and give their evidence.[1084]
The Tribunal’s determination of the dispute will be issued to the parties as a
determination order of the PRTB and is binding unless appealed, within 21 days,
to the High Court on a point of law.[1085]
9.37
Failure to comply with a determination order of the PRTB is an offence.[1086] The affected party or the PRTB, if notified and satisfied
that an order has not been complied with, may apply to the Circuit Court for an
Order directing the party concerned to comply.
(4)
Conclusion
9.38
The establishment of the PRTB is an acknowledgment by the Oireachtas of
the need to provide alternative avenues for dispute resolution outside the
Court system. The PRTB affords individuals the opportunity to resolve disputes
which might not have been litigated due to the nature or low financial value of
the dispute.
D
Planning
Application Disputes & ADR
(1)
Planning
Applications & ADR: An Overview
9.39
Under section 37 of the Planning and Development Act 2000 an
applicant for planning permission, and any party who makes a written submission
to the planning authority in accordance with the permission regulations, may
appeal to An Bord Pleanála within 4 weeks from the date of a decision by a
planning authority.[1087] An Bord
Pleanála aims to make a decision within 18 weeks. If this is not possible, it
will inform all the parties of this. If a development has been granted or
refused planning permission, and this decision has been upheld by An Bord Pleanala,
an appeal to the High Court can be made for a Judicial Review of the procedures
associated with the grant or denial of planning permission.[1088]
An application for Judicial Review must be made within 8 weeks from the date
the decision is given.
9.40
From 1999 to 2006, the average number of planning applications each year
has been approximately 78,000.[1089]
Of the decisions made, 81.3% were grants of permission and 18.7% were refusals.
The appeal rate has fluctuated marginally since 2000 at between 6.5% to 7.4% of
decisions made by planning authorities. In recent years there have been
4,500-5,500 appeals each year. An Bord Pleanála formally decided 3,903 appeals
in 2006.[1090]
9.41
There is currently no provision for the use of ADR in the resolution of
planning application disputes. It has been noted
that:
“It is to be regretted that the Planning Act, a considerable
piece of legislation in size and scope, which was enacted to revise and
consolidate the law relating to planning and development in Ireland did not
take the opportunity to include a form of ADR, like mediation, with a view to
streamlining planning applications. The adjudicative, quasi–judicial function
of An Bord Pleanála may not be the most beneficial for the planning process in
this regard.”[1091]
(2)
Role
for ADR in the Planning System: International Experiences
(a)
England & Wales
9.42
In the English case of Cowl v Plymouth City Council[1092] an
appeal against a refusal to grant judicial review of a planning decision of
Plymouth City Council, Lord Woolf C.J. stated that:
“The importance of this appeal is that it illustrates that,
even in disputes between public authorities and the members of the public for
whom they are responsible, insufficient attention is paid to the paramount
importance of avoiding litigation whenever this is possible. Particularly in
the case of these disputes both sides must by now be acutely conscious of the
contribution alternative dispute resolution can make to resolving disputes in a
manner which both meets the needs of the parties and the public and saves time,
expense and stress.”
9.43
In a Report in 2000 entitled Mediation in the Planning System”[1093] the viability of introducing mediation
effectively into the English planning process was assessed in order to speed up
decision making, reduce the pressure on public funds and the number of disputes
which otherwise might result in appeals.
9.44
The Report referred to a pilot mediation scheme for planning disputes
which the Planning Inspectorate had made available where the applicant and the
local planning authority agreed to mediation.[1094]
Mediation was described in this pilot scheme as:
“…the intervention into a dispute by an acceptable impartial
neutral person whose role it is to assist the parties in dispute to reach their
own mutually acceptable settlement. It is essentially a voluntary procedure,
its proceedings are confidential to the participants; any settlement however
can be made public with the agreement of all parties.”[1095]
9.45
The Report noted that “the most common category where the parties opted
for mediation was the ‘householder’ category and, within that, the most common
focus of the dispute was design issues.”[1096]
The results from the pilot mediation scheme showed that, of 48 mediations, 31
resulted in an agreement, a rate of 65%. The Report concluded that:
“... the use of mediation in the planning process should not
be mandatory. In general, mediation can offer financial, social and
time–related advantages to resolve planning disputes rather than proceeding by
appeal. In addition, it offers an opportunity to ultimately improve the quality
of planning proposals rather than solely making a decision on those proposals.”[1097]
9.46
In 2003, a follow-up Research Report recommended that a National
Planning Mediation Service be established.[1098]
The recommendations of this Report have not yet been implemented.
(b)
Australia
9.47
In Australia, Victoria’s Civil and Administrative Tribunal (VCAT) was
established in 1998 through the amalgamated of15 boards and tribunals to offer
a ‘one stop shop’ dealing with a range of disputes. VCAT has a number of
‘lists’ which specialise in particular types of cases, one of which is the
Planning and Environment List. The Planning and Environment List hears and
determines: applications to review decisions made by Municipal Councils and
other authorities under a number of Acts of Parliament; applications for
enforcement orders, applications to cancel or amend permits and applications
for declarations relating to the use and/or development of land under
Victoria’s Planning and Environment Act 1987.
9.48
The Planning and Environment List offers mediation as an alternative way
to settle a dispute. A number of cases are referred to mediation on VCAT's own
initiative. Any party may request that their matter be referred to mediation
and the mediation service is free of charge.[1099]
(3)
Summary
9.49
The discussion of the
role of ADR in planning disputes indicates that it may conceivably have a role
in some States. In Ireland, the Commission is aware that informal
negotiations between an applicant and a local planning authority often resolve
issues or disputes when they have arisen in relation to a planning application.
As a result, the Commission is minded to the view that the integration of ADR
processes into the planning system may not be necessary. The Commission is
accordingly, not at this stage making a provisional recommendation on this
issue but invites submissions as to whether there is a role for ADR in the
resolution of planning application disputes.
9.50
The Commission invites submissions on whether ADR, in particular
mediation, has a role to play in the resolution of planning application
disputes.
CHAPTER 10
TRAINING
AND ACCREDITATION OF MEDIATORS
A
Introduction
10.01
In this chapter the Commission examines the accreditation and regulation
of mediators. In Part B the Commission provides a general overview of the
importance of providing adequate training and formal accreditation to
mediators. The Commission also examines the current structures in Ireland for
training and accreditation of mediators. In Part C the Commission provides a
summary of training and accreditation schemes in other States. In Part D the
Commission considers the issue of education on ADR.
B
Accreditation
& Regulation of Mediators: An Overview
10.02
There is
currently no statutory basis for the general training or accreditation of
mediators in Ireland. Rather there is a variety of accreditation bodies that
use different standards in training and accrediting mediators. The appointment
of mediators may often be based on their professional qualifications, such as
engineers, rather than their competence in the mediation process and mediator
techniques. However, although practice as a mediator in Ireland does not
always, therefore, depend upon being formally trained and accredited, the
Commission notes that most mediators voluntarily undergo at least an
introductory training course.
10.03
The recent emergence of mediation inevitably raises issues of the
accreditation and regulation of those who mediate. Mediators are responsible
for overseeing and assisting parties in making legally binding agreements which
can have significant implications for themselves, their families, and others in
society. This is particularly true of mediated family disputes involving issues
such as custody and access to children, division of martial property, and
maintenance.[1100]
10.04
As previously noted by the Commission, the European Code of Conduct for
Mediators has been developed for self regulatory purposes only. Many countries
are now considering whether the Code should be introduced as legislation to
govern domestic mediations.
10.05
In 1989, the Law Reform Commission of New South Wales published a Discussion
Paper on Alternative Dispute Resolution: Training and Accreditation of
Mediators.[1101]
The Commission discussed whether a formal requirement that mediators undergo
training and accreditation was necessary. The Commission gave the following
reasons as to why formal training and accreditation may not be necessary:
·
Mediators are born, not made;
·
Mediators derive their authority from the consent of the parties. If the
disputants consent to a person acting as a mediator, it is unnecessary that
there be an externally imposed requirement that the mediator be trained;
·
In the infancy of the practice of mediation, it is too difficult and
impractical to determine what the correct training is;
·
The need for specific training can be avoided if mediators are chosen by
a careful matching of their skills, experience and style with the dispute and
disputants; and
·
If, according to mediation philosophy, appropriate solutions are likely
to be generated by the disputants themselves, it is unnecessary to have
mediators with expertise in substantive areas such as family law.[1102]
10.06
By contrast, support for the view that mediators should have training
were set out by the following arguments:
·
The integrity and credibility of mediation will be promoted by trained
practitioners;
·
Users have a right to expect competent service, and not one tainted with
the ‘second class justice’ criticism. Training practitioners is the best means
of ensuring a quality service;
·
Training programs enable mediators to learn the necessary skills and can
identify those unlikely to be competent;
·
There is concern that mediators with limited or no training will be
unaware of the dangers of the enthusiastic amateur;
·
There are some situations where a mediator should be trained in either
the substantive matters or the techniques of dealing with people. Mediating in
the shadow of a family or dealing with people under severe stress requires
specific training to be most effective; and
·
Training which addresses substantive ethics and provides a model of
ethical behaviour will promote a more ethical service for consumers.[1103]
10.07
In its Report on Training and Accreditation of Mediators, the
Commission of New South Wales concluded:
“…that training for mediators is necessary for competence as
a mediator and to enhance the credibility of mediation… The role requires
knowledge and skills of a distinct process. Training is the most effective way
for a person to acquire expertise. Failure to undergo training in the process
increases the risk that a mediator’s behaviour will be incompetent and
unethical, and of harm to clients.”[1104]
10.08
The Commission fully supports the view of the Law Reform Commission of
New South Wales and considers that the training of mediators is necessary to
enhance the profile of, and consumer confidence in, the process of mediation,
as there is a danger that “the mediation movement could be derailed by loss of
consumer confidence, if quality assurance mechanisms are not introduced to
ensure that clients are protected from incompetent mediators.”[1105]
Furthermore, if courts continue to encourage and indeed recommend mediation,
the judges must have confidence in the quality of the mediators who will
undertake the task. If mediation is to become a fully integrated process within
the modern civil justice system, the quality and competence of those who
oversee the system must be guaranteed through adequate training and formal
accreditation.
10.09
The Commission provisionally recommends that training and
accreditation of mediators is essential to ensure the quality of the process
and invites submission as to whether this should be included in any statutory
framework for mediation.
(1)
Prescribed
Bodies under the Civil Liability and Courts Act 2004
10.10
The Commission notes that, under section 15(4) of the Civil Liability
and Courts Act 2004 the following have been prescribed (by a statutory Oder
made by the Minister for Justice, Equality and Law Reform) as bodies which can
nominate persons to act as the chairperson of mediation conferences.
·
Bar Council of Ireland;[1106]
·
Chartered Institute of Arbitrators (Irish Branch);[1107]
·
Friarylaw;[1108]
·
International Centre for Dispute Resolution;[1109]
·
Law Society of Ireland;[1110]
·
Mediation Forum – Ireland;[1111]
and
·
Mediators Institute Ireland;[1112]
10.11
These prescribed bodies provide a choice for the courts in appointing a
chairperson of a mediation conference in personal injuries actions, where the
parties themselves do not agree on a chairperson. The list also indicates in
general terms the range of bodies currently available to provide mediation
services in the State. The Commission now turns to examine some aspects of
training and accreditation currently provided in Ireland.
(2)
Mediators
Institute of Ireland
10.12
The Mediators Institute of Ireland (MII) is the professional association
for mediators in Ireland and was established in 1992. The primary object of the
MII is “to promote the use of quality mediation as a process of dispute
resolution in all areas by ensuring the highest standards of education,
training and professional practice of mediation and by increasing public
awareness of mediation.”[1113]
10.13
The MII’s Code of Ethics describes mediation as “a process in which an
impartial and independent third party facilitates communication and negotiation
and promotes voluntary decision making by the parties to a dispute to assist
them to reach a mutually acceptable solution.”[1114]
It defines a mediator as “a trained professional who facilitate the process of
mediation whilst acting at all times in accordance with the principles of
impartiality, integrity, fairness and confidentiality, with respect for all
parties to the dispute and in accordance with the Code of Ethics.”[1115]
There are four categories of MII membership:[1116]
·
a general member is any person with an interest in mediation. No
training required to become a general member;
·
an associate member is someone who has satisfactorily completed a 60
hour MII approved course or equivalent course;
·
a certified mediator is someone who has satisfactorily completed a 60
hour MII approved or equivalent course and undertaken an MII approved
assessment of their mediation skills. The mediator must also select a sector as
a ‘home’ sector and sign acceptance of the code of ethics. A certified
member is entitled to apply annually for a practising certificate. Certified
mediators must also complete 50 hours of Continuing Professional Development
over a 2 year cycle. The MII requires all certified mediators to hold current
Professional Liability Insurance: and
·
a practitioner mediator is an experienced mediator who has successfully
completed an advanced assessment. This includes the completion of 100
hours of actual mediation including pre and post mediation (of which there must
be at least 6 mediations of which at least 3 led to an agreement) or an MII
Approved Practitioner course plus 75 hours actual mediation experience of which
where must be at least 3 mediations. They must also attend 3 sharing and
learning meetings and present a case at one sharing and learning meeting. The
mediator must also attend 6 sessions with a case consultant and maintain a log
of mediations. Finally, the mediator must pass an interview assessment or pass
a written assessment on 3 mediations. Practitioner members must also complete
50 hours of Continuing Professional Development over a 2 year cycle. The
MII requires all practitioner members to hold current professional liability
insurance.
10.14
All associate, certified and practitioner members of the MII must agree
to be bound by the MII’s Code of Ethics and complaints and disciplinary
procedures.[1117]
(3)
Family
Mediators
10.15
The Family Mediation Service provides a number of places for trainees
who wish to specialise in family mediation through the FMS Part II Specialist
in service Training Programme. Only those who have successfully completed a
Part I Training Course which meets the MII requirements are eligible for FMS
Part II Training. The Commission considers that family mediators require
specialist knowledge and skills due to the nature and complexity of many family disputes.
C
Training
& Accreditation Systems in Other Jurisdictions
10.16
The Commission agrees with the view that a national uniform system of
mediator accreditation would have the following objectives:
·
the improvement of mediator knowledge, skills and ethical standards;
·
the promotion of standards and quality in mediation practice;
·
the protection of the needs of consumers of mediation services and the
provision of accountability where they are not met;
·
the conferment of external recognition of mediators for their skills and
expertise; and
·
the development of consistency and mutual recognition of mediator
training, assessment and accreditation.[1118]
10.17
The Commission turns to examine developments in the systems for the
regulation and accreditation of mediation in other States.
(1)
The
Netherlands
10.18
In the Netherlands, any person may act as a mediator and the title of
‘mediator’ is not protected by law and it is possible to act as a mediator
without being registered, certified or even trained. However, those who wish to
be involved in court annexed mediations must be registered or certified with
the Netherlands Mediation Institute.
10.19
The Netherlands Mediation Institute (NMI) created in 1995, pioneered and
continues to operate a voluntary scheme to certify mediators to defined
ISO 17024:2003. ISO 17024:2003 is a general standard from the UN-based
International Standards Organisation that sets out the requirements for a body
operating a certification scheme for persons and the standards of competence
and attributes required of persons being certified. In Ireland, the Irish
National Accreditation Board operates to ISO 17024:2003 in its accreditation
process for laboratories and other service providers who apply for Irish
National Accreditation Board accreditation.
10.20
The NMI is the only body currently arranging for the national
certification of mediators to ISO 17024:2003, which it does in collaboration
with one of the world's largest certification/verification organisations DNV.[1119]
DNV holds a certificate from the Dutch Raad voor Accreditatie, which like the
Irish National Accreditation Board, is a member of the International
Accreditation Forum, and DNV Certifications are recognised worldwide under a
Multilateral Recognition Agreement.
10.21
All mediators involved in court-annexed mediations in the Netherlands
must be either registered with or certified by the NMI and to do this, they
must comply with the NMI Quality Assurance System. This comprises a two step
process: Step 1: The Principles and Procedures; and Step 2: The Certification
of Mediators.
10.22
All NMI mediators must have completed Step 1 to be categorised as
NMI-registered mediators. Those who go on to complete Step 2 are deemed to be
NMI-certified mediators. Certification must be renewed every 3 years. In
addition, an NMI-mediator must comply with the requirement of permanent
education, the equivalent of Continuous Professional Development (CPD), by
amassing a specified number of points each year in order to remain registered
or certified.
10.23
The new two-tier system of accreditation was prompted by the fact that
the number of people training to be mediators was increasing at a greater rate
than the number of cases going to mediation. The two-tier system ensures that
only those mediators who are actually engaged in mediation will attain NMI
certification. The
fundamentals of mediation such as confidentiality and voluntariness are laid
down in the NMI Mediation Rules.
(2)
Australia
10.24
There has been considerable debate in Australia during the last 15 years
over issues of training and accreditation. This has occurred in the absence of
any national mandatory system of mediator accreditation in Australia, and the
existence of numerous individual accreditation systems.[1120]
10.25
In 2005, a draft National Mediation Accreditation Standards System was
published and this became the basis for the introduction of National Mediator
Standards and Practices which became effective on 1 January 2008.
10.26
All mediators who wished to be accredited under the National Mediator
Standards and Practices must formally apply to a Recognised Mediator
Accreditation Body (RMAB). The system is voluntary for those mediators who wish
to obtain accreditation to the National Mediator Standards and there is no
compulsion for mediators to obtain this accreditation in order to practice.
10.27
RMABs are bodies whose capacities and credentials have been recognised
by the Federal Implementation Body as being compliant with the requirements of
the system.[1121] The main
function of the RMABs will be to accredit mediators to the NMS. An RMAB must
have the following characteristics:
·
more than 10 mediator members;
·
provision of a range of member services such as an ability to provide
access to or refer mediators to ongoing professional development workshops,
seminars and other programmes and debriefing, or mentoring programmes;
·
a complaints system that either meets minimum standards for
industry-based customer dispute resolution or be able to refer a complaint to a
Scheme that has been established by Statute;
·
sound governance structures, financial viability and appropriate
administrative resources;
·
sound record-keeping in respect of the approval of practitioners and the
approval of any in-house, outsourced or relevant educational courses; and
·
the capacity and expertise to assess training and education that may be
offered by a range of training providers in respect of the training and
education requirements.[1122]
10.28
RMABs will provide certification to the effect that an individual has
satisfied the criteria for accreditation according to the National Mediator
Standard. The criteria include:
a) evidence of good character;
b) an undertaking to comply with
ongoing practice standards and compliance with any legislative and approval
requirements;
c) evidence of relevant insurance,
statutory indemnity or employee status;
d) evidence of membership or a
relationship with an appropriate association or organisation that has
appropriate and relevant ethical requirements, complaints and disciplinary
processes as well as ongoing professional support; and
e) evidence of mediator competence
by reference to education, training and experience.[1123]
10.29
Furthermore, all mediators seeking to be accredited to the NMS must
agree to be bound by the National Approval Standards and the National Practice
Standards.[1124] The
Approval Standards:
·
Specify requirements for mediators seeking to obtain approval under the
voluntary national accreditation system;
·
Define minimum qualifications and training; and
·
Assist in informing participants, prospective participants and others
what qualifications and competencies can be expected of mediators.[1125]
10.30
The Approval Standards define mediation as a “... process in which the
participants, with the support of a mediator, identify issues, develop options,
consider alternatives and make decisions about future actions and outcomes. The
mediator acts as a third party to support participants to reach their own
decision.”[1126] This is
consistent with the Commission’s definition of mediation.[1127]
10.31
The Practice Standards are intended to govern the relationship between
mediators and the participants in the mediation, their professional colleagues,
courts and the general public so that all will benefit from high standards of
practice in mediation. The Practice Standards also specify practice and
competency requirements for mediators and inform participants and others about
what they can expect of the mediation process and mediators.[1128]
10.32
The Practice Standards also set out the fundamental guiding principles
about mediation that mediators must adhere to. These include: procedural fairness,[1129]
competence,[1130]
confidentiality,[1131] and
impartial and ethical practice.[1132]
(3)
Civil
Mediation Council of England & Wales
10.33
The Civil Mediation Council (CMC) is an unincorporated association
established in 2003 by mediation providers in England and Wales. Its members
include independent mediators, academics, legal professional bodies and
government departments.
10.34
The CMC operates a pilot scheme for the accreditation of mediation
providers, but individual mediators are not regulated by the CMC. According to
Article 24 of the Constitution of the CMC:
“Mediation Providers shall be accredited by the [CMC] Board
on behalf of the Council if they satisfy the Board that they have reached the
standards required by the Board as determined from time to time; and have paid
the annual membership fee for an Accredited Mediation Provider due to the
Council”
10.35
Mediation providers who meet the criteria set by the CMC Board are
entitled to describe themselves as “Accredited by the Civil Mediation
Council”. Accreditation is carried out annually using such systems and
methodology as the Board considers appropriate.[1133]
10.36
In 2008 the CMC established a complaints procedure under which either a
member, or a client of a member of the CMC, who has exhausted the member’s own
complaints process, can refer the matter to the CMC for resolution through
mediation.[1134]
(4)
Family
Mediation Council in England and Wales
10.37
The Family Mediation
Council (FMC) was established in 2007 to harmonise standards for family
mediation in England and Wales.[1135]
The Council approves family mediation bodies that meet its requirements. Family
mediators who are trained and accredited by bodies approved by the council are
listed on the UK government-funded Family Mediation Helpline website.[1136]
10.38
To qualify for membership of the Council an organisation must have:
·
a nationally based register of members who are practising family
mediators and who have received approved training in order to qualify for
practice;
·
a professional Code of Practice;
·
a system of supervision of its member’s professional practice;
·
a complaints procedure;
·
a system of CPD;
·
access to the provision of approved training;
·
adequate financial funding that would enable it to meet its share of
Council expenses; and
·
an equality and diversity policy.[1137]
10.39
The FMC membership organisations, in regulating their individual
memberships, must ensure that their family mediators:
·
Adhere to the FMC’s Code of Practice;
·
Have completed FMC recognised family mediator foundation training;
·
Undertake FMC accredited continuous professional development;
·
Receive FMC recognised supervision;
·
Adhere to a clear complaints procedure;
·
Hold relevant insurance;
·
Undertake additional specialist training where required; and
·
Have effective equal opportunities policies.
(5)
Canada:
Chartered Mediators
10.40
The ADR Institute of Canada was established to develop and promote
dispute resolution services in Canada.[1138]
It has obtained recognition under the Canadian Federal Trade Marks Act 1985
for certain titles including: Chartered Mediator; C.Med., Médiateur Certifié;
Médiatrice Certifiée; and Med.C. The Institute is represented throughout Canada
by its affiliated Regional Institutes who administer and regulate these titles
in their respective regions
10.41
The Chartered Mediator designation has been established to recognise a
"generalist competence", the goal being to assist the public in
finding qualified mediators. In order to ensure that a high set of standards is
met by the persons entitled to use this designation, the Institute established
general principles, a set of criteria and a protocol to be used in assessing
the eligibility of a candidate for the designation and for the granting of the
designation. The following process is required to qualify an applicant for
designation:
·
Satisfactory completion of the educational and practical experience and
skills assessment requirements;
·
Review and approval by a Regional Institute's Accreditation Review
Committee and ratification by the Regional Board of Directors; and
·
Review and approval by ADR Canada’s National Accreditation Committee and
ratification by ADR Canada's Board of Directors.
10.42
Each successful applicant is required to agree to abide by ADR Canada’s
Code of Ethics and disciplinary policies. ADR Canada also published a Model
Code of Conduct for Mediators. Mediation is defined under the Code as “the use
of an impartial third Party to assist the parties to resolve a dispute, but
does not include an arbitration.”[1139]
This is consistent with the Commission’s definition of mediation.[1140]
10.43
The main objectives of this Code are stated to be:
·
to provide guiding principles for the Mediator's conduct;
·
to provide a means of protection for the public; and
·
to promote confidence in mediation as a process for resolving disputes.[1141]
10.44
The Code also sets out a framework of general principles which should be
adhered to by mediators. These include the principles of self-determination,
independence and impartiality, confidentiality, and quality of the process.
(6)
Global
Quality Mark: International Mediation Institute
10.45
In 2005, three
non-profit dispute resolution institutions, the Netherlands Mediation
Institute, Singapore Mediation Centre, and the International Centre for Dispute
Resolution, recognising the need for mediator competency standards, agreed to
form the International Mediation Institute (IMI) and consult worldwide to
initiate competency standards which would be applicable everywhere.[1142]
10.46
IMI proposes to launch two different competency certifications:
·
The Professional Mediator Competency Certification will provide users of
mediation services with the assurance that those they select to mediate will
meet high and proven standards of competency; and
·
The Intercultural Mediator Competency Certification will additionally
demonstrate the capability to mediate across cultural differences. The
Intercultural Certification will be available only to mediators who hold the
IMI Professional Certification.
10.47
Quality mediation providers will be able to apply to be formally
recognised by IMI as a Recognised Educational Establishment (REE). Standards
and criteria for this recognition will be set by IMI based on recommendations
by its independent Standards Commission. The Independent Standards Commission
is responsible for determining the international competency standards, criteria
and guidelines for mediators wishing to be IMI Certified. The standards will
aim to:
·
provide users with reliable data to facilitate their choice of competent
mediators;
·
address the professional interests of mediators and mediation provider
institutions in the area of professional competency;
·
reflect outstanding training, independent assessments, ongoing education
and experience in practice;
·
inspire and encourage the achievement of higher standards throughout the
profession; and
·
prioritise self-regulation, transparency, simplicity, adaptability and
the minimisation of administrative burden and cost.
10.48
Mediators may take an IMI-approved training course with an REE.
Successful completion will generate the required IMI training credits.
Mediators will then build up IMI education, experience and leadership credits
which will entitle them to IMI Certification. To gain an IMI Certification in
Professional Mediation Competency, a mediator must secure at least 100
Competency Performance Points from four categories: training, education,
experience, and leadership. Once certification is achieved, mediators will be
required to maintain a minimum number of competency points every three years in
each of the education, experience and leadership streams. Failure to do so will
result in de-certification.
10.49
All IMI certified mediators will be required to: adhere to a
professional Code of Ethical Conduct, be subject to a disciplinary process and
identify that Code and Disciplinary Process in advance to users. For States
where there are no existing ethics codes for mediators and no established
disciplinary process, IMI will adopt on its website one of the leading
international ethics codes and will establish an independent disciplinary
process.
10.50
The current draft IMI Code of Ethical Conduct is based on :
·
The Model Rule for the Lawyer as a Third Party Neutral of the
CPR-Georgetown Commission on Ethics & Standards in ADR (2002)[1143];
·
Code of Conduct for Mediators of the UIA Forum of Mediation Centres
(2003):
·
European Code of Conduct for Mediators of the European Commission
(2004):[1144]
·
Model Standards of Conduct for Mediators (2005) adopted by AAA, ABA and
ACR:[1145] and
·
Ethical Guidelines for Mediators of the Law Council of Australia (2006).[1146]
10.51
For the purposes of this Code mediation is defined as “a process where
two or more parties agree to the appointment of a third-party neutral
(“mediator”) to help them in a non-binding process to resolve a dispute or to
conclude the terms of an agreement.” This is also consistent with the Commission’s
definition of mediation.[1147]
(7)
United
States
10.52
Some countries enacted legislation to govern the issues of training and
accreditation of mediators. Various
states in the United States have introduced Court rules which set out basic
requirements about training and accreditation of mediators.[1148]
For example, the rules of the Tennessee Supreme Court set out the main
qualifications which must be met by family mediators:
·
good moral character;
·
four years of practical work experience in psychiatry, psychology,
counselling, social work, education, law or accounting;
·
40 hours of training in family mediation encompassing specified
curriculum components including specific domestic violence training;
·
6 additional hours of training in Tennessee family law and court
procedure; and
·
further training every 2 years together with filing an annual report
with the Director of the Alternative Dispute Resolution Commission.[1149]
10.53
In the United States, ADR organisations have also developed several
national standards for mediation, for example Model Standards of Practice for
Family and Divorce Mediation[1150]
and Model Standards of Conduct for Mediators.[1151]
(8)
Austria
10.54
The training and accreditation of mediators is governed by the Civil Law
on Mediation Training, which sets out the scope and content of training in this
field.[1152]
Mediators in civil law matters must all be registered with the Federal Ministry
of Justice, which will then enter them on a list of registered mediators. There
are a number of requirements for submission to the list, namely that the
mediator must: be over 28 years of age: hold a professional qualification;[1153]be
trustworthy; and possess the necessary professional indemnity insurance.[1154]
10.55
In addition to these criteria, the mediator must also complete a
training course at a Ministry of Justice approved facility, which compromises
of a minimum of 200 hours theoretical learning.[1155]
D
Education
on ADR
10.56
It is important that that those entering the legal profession, and other
relevant professions such as engineering, are educated on ADR. Lawyers, in
particular, should be capable of advising their clients on all the mechanisms
which are available to resolve their dispute. The Commission acknowledges that both
the Law Society of Ireland and the Bar Council of Ireland have established
Arbitration and Mediation Committees. Courses on dispute resolution are also
now becoming available at university level.[1156]
10.57
The Australian Law Reform Commission in its 1999 Report on Managing
Justice: A Review of the Federal Civil Justice System stated that
“education plays an essential role in shaping the legal culture…Systematic
reform and the maintenance of high standards of performance…require a healthy
professional culture, one that values lifelong learning, takes ethical concerns
seriously, and embraces a services ideal.”[1157]
As noted by Ward LJ in the English case Burchell v Bullard:[1158]
“The court has given its stamp of approval to mediation and
it is now the legal profession which must become fully aware of and acknowledge
its value. The profession can no longer with impunity shrug aside reasonable
requests to mediate. The parties cannot ignore a proper request to mediate
simply because it was made before the claim was issued. With court fees
escalating it may be folly to do.”
10.58
In April 2005, a practice advice was jointly issued by the Civil
Litigation Committee and ADR Committee of the Law Society of England and Wales.[1159]
This relates to the giving of information on mediation and other dispute
resolution options to clients before, and during the process of resolving any
disputes between the client and third parties. It recommends that solicitors
should:
·
In appropriate cases, and at appropriate times, explain to clients
whether there are ADR techniques that might be used other than litigation,
arbitration or other formal processes; what those alternative processes
involve, and whether they are suitable in the circumstances; and
·
Keep the suitability of mediation and other ADR techniques under review
during the case and advise clients accordingly.
10.59
The practices advice also states that solicitors should be aware that
failure to provide information and advice at the appropriate stage may have
costs or other consequences.[1160]
10.60
Furthermore, the Judicial Studies Board and the Civil Justice Council in
England have embarked on a systematic process of raising awareness and
understanding among judges about ADR, with a specific focus on mediation.
10.61
The Commission provisionally recommends that the relevance of ADR,
including mediation and conciliation, should be incorporated into third level
programmes in law and other disciplines and the professional programmes
conducted by the Law Society of Ireland and the Bar Council of Ireland.
E
Conclusion
10.62
It is clear from this discussion that in all States where mediation is
practised, the need for appropriate training and accreditation of mediators is
an essential foundation for a fully functioning system of mediation. The issue
that remains is the form this regulation should take. The Commission notes that
options include:
i)
Self-regulation through professional bodies which would admit to full
membership or accredit only those practitioners meeting the levels of training
established by the professional body;
ii)
Self-regulation under an overall regulatory body which would be
responsible for formal recognition of practitioners and which would make
completion of specified training a condition of recognition; or
iii)
A statutory system which would impose minimum mandatory obligations on
practising mediators.
10.63
The Commission considers that, at this stage in the development of ADR
in Ireland, it is appropriate to allow the development of this emerging
discipline in the existing non-statutory bodies, but that a statutory set of
principles would enable further development to occur on a firm foundation. The
Commission also considers that a form of non-statutory system under the
auspices of the Department of Justice, Equality and Law Reform should be
developed under which the accreditation of service providers, and of individual
practitioners could be structured. Such a non-statutory system would be without
prejudice to existing arrangements in particular areas (such as family
mediation) and could, in time, provide the basis for a more formal statutory
structure at some future point.
10.64
The Commission invites submissions as to whether the regulation of
mediators should continue at present on a non-statutory basis, subject to the
principles to be set out in a statutory framework for mediation and
conciliation.
10.65
The Commission provisionally recommends that all family mediators
should receive specialist training in this particular area.
10.66
The Commission provisionally recommends that a non-statutory scheme
should be established, under the auspices of the Department of Justice,
Equality and Law Reform, to provide for the accreditation of organisations, which, in turn, accredit individual practitioners.
CHAPTER 11
Role
of Court & adr
A
Introduction
11.01
In the chapter the
Commission examines the role of the Court in the development of ADR. In Part B
the Commission discusses the general role of the Court in encouraging ADR in
appropriate cases. In Part C the Commission explores the issue of cost
sanctions and mediation. In Part D the Commission discusses the manner in which
mediators report to the Courts. In Part E the Commission considers whether
mediation costs should be recoverable as legal costs.
B
Role
of the Court in Encouraging ADR
11.02
As previously noted[1161] the
Commission acknowledges and
commends the manner in which the High Court’s Commercial Law List has operated
in a proactive manner to exemplify that mediation and conciliation are not
merely “alternatives” to litigation but have become important elements of an
integrated approach to the resolution of civil disputes. The Commission has
also noted the benefits of mediation in land boundary disputes[1162]
and the well established use of mediation in family disputes.[1163]
11.03
While encouragement of ADR by the Courts is a welcome development in
Ireland, a more difficult question is whether parties who resist judicial
encouragement to consider ADR should be compelled to attempt an ADR process and
whether this would go against the voluntary nature of processes such as mediation
and conciliation. The Commission notes that requiring parties to invest
substantial amounts of time and money in mediation under such circumstances may
well be inefficient. The Commission also notes that the existing legislative
provisions do not present a consistent picture on this matter.
11.04
As the Commission has previously noted, section 15 of the Civil
Liability and Courts Act 2004 provides that mediation in a personal
injuries action can only be initiated at the request of one of the parties,
thereby creating the situation where a Court might direct that the parties must
meet to discuss and attempt to settle the action in a ‘mediation conference’.
However, should neither party request the holding of a meeting the court cannot
compel the parties to consider mediation. One commentator has noted that:
“By choosing an approach whereby the power to initiate
mediation rests with one of the parties, irrespective of the views of the other
side, the legislature has created a significant power imbalance in the
relationship between the parties, which will cause grave difficulties for the
mediation process.”[1164]
11.05
By contrast, the Rules of the Superior Courts (Commercial Proceedings)
2004 introduced a mechanism by which the Court may, on application to the court
or by its own motion, adjourn the proceedings for up to 28 days to facilitate a
reference of the dispute to mediation, conciliation or arbitration. The 2004
Rules mirror the approach in the English of the Civil Procedure Rules 1998
(CPR) in this respect. By contrast with the mediation scheme under the Civil
Liability and Courts Act 2004, the Court cannot compel the parties to
attempt ADR, but is limited to directing them to consider the prospect of
mediation. As with the 2004 Act, an unjustified failure to give ADR due
consideration may have costs implications. “While there is no compulsion to do
so, one would be brave to disregard judicial invitations to the parties to
engage in good faith in a mediation conference.”[1165]
It is clear from the 2004 Act and the 2004 Rules that there is a thin line
between strongly encouraging parties to consider ADR and compelling
parties to attempt ADR and that there is no consistency in how this is
achieved. The Commission now turns to examine how other States have dealt with
this.
(1)
Comparative
Review
(a)
England and Wales
11.06
In the 1990s Lord Woolf, in his review of the civil courts in England
and Wales stopped short of recommending compulsory mediation, on the grounds
that it was wrong in principle to deny citizens their entitlement to seek a
remedy from the civil courts.[1166]
Lord Woolf’s view on compulsory mediation has been echoed in various judgments.
For example, in Re H (A Minor)[1167]
Roche LJ expressed the view that compulsory mediation is a contradiction in
terms. Nonetheless, Lord Woolf considered that the courts should play an
important part in providing information about ADR and encouraging its use in
“appropriate cases.”
11.07
In England and Wales, the courts have come to recognise that parties
sometimes need to be strongly encouraged to embark on ADR. For example, in IDA
Ltd v University of Southampton[1168]
the English Court of Appeal was concerned with costly litigation over who owned
a patent. In giving the decision of the Court, Jacob LJ stated:
“Parties to these disputes should realise, that if fully
fought, they can be protracted, very, very expensive and emotionally draining.
On top of that, very often development or exploitation of the invention under
dispute will be stultified by the dead hand of unresolved litigation… This sort
of dispute is particularly apt for early mediation.”
11.08
Where both parties resist judicial encouragement to ADR, it was
suggested by Coleman J in Cable & Wireless plc v IBM UK Ltd.[1169]
that:
“Occasionally, the circumstances of a dispute may appear to
the court so strongly to demand a reference to ADR that, even in the face of
objections from both parties, [ADR orders] have been made and have led to
settlements much to the surprise of the parties concerned.”
11.09
In Shirayama Shokusan v Danovo Ltd[1170]
Blackburn J granted an order for mediation, which had been applied for by the
defendant despite the resistance of the claimant. He concluded that the court
“does have jurisdiction to direct ADR even though one party may not be
willing.” He reasoned that the provisions of the Civil Procedure Rules
introduced in the wake of the Woolf Reports were, “not confined simply to the
case where the parties jointly wish to settle the case or to use alternative
dispute resolution procedures.”
11.10
The general approach of the English courts to ADR has been decisively laid
down in the decision of the Court of Appeal in Halsey v Milton Keynes
General NHS Trust.[1171] This was
a clinical negligence case. The claimant, a widow, sued a health authority for
causing the death of her husband. She failed in her claim, but appealed to
Court to refuse to award the health authority its costs because it had
repeatedly refused to mediate. The Court declined this request. It held that
the health authority was justified in refusing to mediate because it reasonably
believed it would win.[1172]
11.11
In Halsey two important principles concerning the voluntary
nature of mediation were established. Firstly, compulsion to engage in
mediation would be regarded as an unacceptable constraint on the right of
access to the court and, therefore, a violation of article 6 of the European
Convention on Human Rights and in Ireland, the Commission might add, the right
of access to the courts in Article 40.3 of the Constitution of Ireland.
Secondly, the court can decide to deprive successful parties of some or all of
their costs on the grounds that they have refused to agree to ADR, but that it
must be borne in mind that such an order is an exception to the general rule that
costs should follow the event.[1173]
The burden of justifying a departure from the general rule is on the
unsuccessful party to show that the successful party acted unreasonably in
refusing to agree to ADR.
11.12
As to the first principle, Dyson LJ in the Court of Appeal stated that:
“It is one thing to encourage the parties to agree to
mediation, even to encourage them in the strongest terms. It is another to
order them to do so. It seems to us that to oblige truly unwilling parties to
refer their disputes to mediation would be to impose an unacceptable
obstruction on their rights of access to the courts.” [1174]
11.13
The Court went on to state that even if the court does have jurisdiction
to order unwilling parties to refer their disputes to mediation, “we find it
difficult to conceive of circumstances in which it would be appropriate to
exercise it.” If a judge takes the view that the case is suitable for ADR, then
he or she is not, of course, obliged to take at face value the expressed
opposition of the parties. In such a case, the judge should explore the reasons
for any resistance to ADR. But if the parties remain intransigently opposed to
ADR, then it would be wrong for the court to compel them to embrace it and it
risked simply adding to the total costs, delaying the date of the hearing, and
bringing ADR into disrepute.
11.14
The Court also held that to force parties into mediation would be to
impose an unacceptable obstruction on the right of access to the Court and is
likely to be a violation of Article 6 of the European Convention on Human
Rights. The Court also expressly adopted the view expressed in the “White
Book” on Civil Procedure[1175]
“The Hallmark of ADR procedures, and perhaps the key to their
effectiveness in individual cases, is that they are processes voluntarily
entered into by the parties in dispute with outcomes, if the parties so wish,
which are non-binding. Consequently the Court cannot direct that such methods
be used but may merely encourage and facilitate”.
11.15
Equally, however, the Court also added that "all members of the
legal profession who conduct litigation should now routinely consider with
their clients whether their disputes are suitable for ADR."
11.16
The Commission notes that the Halsey judgement has not escaped
criticism. In a speech delivered in 2007, Lightman J stated that both of the
principles established in Halsey are “unfortunate and mistaken.”[1176]
Firstly, according to Lightman J, the Court of Appeal “… appears to have been
unfamiliar with the mediation process and confused an order for mediation with
an order for arbitration or some other order that places a permanent stay on
proceedings. An order for mediation does not interfere with the right to a
trial: at most, it merely imposes a short delay to allow an opportunity for
settlement.”[1177]
Secondly, he stated that the Court appeared to have been unaware that ordering
parties to proceed to mediation regardless of their wishes happens elsewhere in
the Commonwealth and the United States[1178]
and, indeed in Britain in matrimonial property disputes in the Family Division.
He added:
“The Court of Appeal refers to the fact that a party
compelled to take part in mediation may be less likely to agree a settlement
than one who willingly proceeds to mediation. But that is not the point. Such
is the impact of mediation that parties who enter it unwillingly often become
infected with the conciliatory spirit and settle. Even if only a small
percentage of those who have been forced to mediate settle, it is better than
never giving the process a chance.” [1179]
11.17
Halsey continues to be the leading authority in England and Wales
on the issue of whether a court has jurisdiction to order a party to ADR
against their wishes and it has firmly made a distinction between the duty of
the court to encourage parties to use mediation and the power to force parties
to use mediation against their will.
(b)
New South Wales
11.18
The New South Wales Civil
Procedure Act 2005 permits the New South Wales Supreme Court, at any stage
of the proceedings, to refer parties to mediation. This power does not depend
on the consent of the parties nor is it the intention of the Court that
mediation will be ordered in all proceedings. Initially there was a general
acceptance of the view adopted by Barrett J. in Morrow v Chinadotcom Corp[1180] that “mediation forced
upon one of the parties, rather than voluntarily embraced by all of them, would
be unlikely to achieve anything useful.” He noted that the court should think
very carefully before compelling what could turn out to be an exercise in
futility that would only increase the delay and expense of a final decision by
the court. He refused to make an order for mandatory mediation and this
decision was upheld on appeal. However,
in a later decision Remuneration Planning Corp Pty Ltd v Fitton[1181] the New South Wales Supreme Court
held that:
“since the
power was conferred upon the Court, there have been a number of instances in
which mediation have succeeded, which have been ordered over opposition, or
consented to by the parties...it has become plain that that there are
circumstances in which parties insist on taking the stance that they will not
go to mediation, perhaps from a fear that to show willingness to do so may
appear a sign of weakness, yet engage in successful mediation when mediation is
ordered.”
11.19
In that respect, the New South Wales Supreme Court has recognised that
mandatory mediation may be suitable in some cases. In the defamation case Waterhouse
v Perkins[1182],
the plaintiff did not wish to mediate. Levine J was not persuaded by the
plaintiff's arguments and held that there were a number of factors suggesting
that mediation would be appropriate. He ordered mandatory mediation for reasons
which included:
·
the matter had been running for 10 years and was unlikely to be heard
for at least another 12 months;
·
any trial would be likely to last for at least 6 weeks;
·
the party that wished to mediate had offered to bear the costs of the
mediator and the venue; and
·
the total cost of mediating compared to litigating could not be
considered to be a disproportionate diversion of resources.
11.20
Similarly, in Dickinson v Brown[1183] Bryson J
ordered mediation over the objection of all parties. He considered that the
cost of the proceedings was “seriously out of scale with the size of the estate
and the provision which may be ordered”.
(c)
United States
11.21
Courts in the United States are perhaps even more ready to order
mediation in the face of resistance from the parties. In its opinion in Re
Atlantic Pipe Corporation[1184]
the Court of Appeals for the First Circuit said
“In some cases, a court may be warranted in believing that
compulsory mediation could yield significant benefits even if one or more
parties object. After all, a party may resist mediation simply out of
unfamiliarity with the process or out of fear that a willingness to submit
would be perceived as a lack of confidence in her legal position. In such an
instance, the party’s initial reservations are likely to evaporate as the
mediation progresses, and negotiations could well produce a beneficial outcome,
at reduced cost and greater speed, than would a trial. While the possibility
that parties will fail to reach agreement remains ever present, the boon of
settlement can be worth the risk.”
(2)
Conclusion
11.22
The Commission considers that if a court were to compel parties to enter
into a mediation or conciliation, to which they objected, that would be likely
to add to the costs to be borne by the parties, possibly postpone the time when
the court determines the dispute and damage the perceived effectiveness of the
ADR process. By contrast, the Commission considers that the Courts have a
fundamental role in integrating ADR into the civil justice system by encouraging
parties to consider ADR in appropriate cases. As noted by Sir Clarke MR,
the head of the Civil Division of the English Court of Appeal:
“It is of course a cliché that you can take a horse to water
but whether it drinks is another thing entirely. That it is a cliché does not
render it the less true. But what can perhaps be said is that a horse (even a
very obstinate horse) is more likely to drink if taken to water. We should be
doing more to encourage (and perhaps direct) the horse to go to the trough. The
more horses approach the trough the more will drink from it. Litigants being
like horses we should give them every assistance to settle their disputes in
this way. We do them, and the justice system, a disservice if we do not.”[1185]
11.23
The Commission reiterates its previous recommendation that that, in
civil claims generally, courts should be permitted, either on their own motion
initiative or at the request of a party to such claims, to make an order
requiring the parties to consider resolving their differences by mediation or
conciliation.[1186]
C
Costs
Sanctions
11.24
To the Commission’s
knowledge costs sanctions for refusing to consider or attempt ADR have yet to
be imposed in an Irish Court. At present, there is limited guidance in
the Irish system on the issue of costs. Costs are in the discretion of the
court but the principal rule is that costs “follow the event”,[1187]
in other words the losing party must pay the successful party’s costs as well
as their own.
11.25
Section 15(1) Civil Liability and Courts Act provides that, upon
application of one of the parties to a personal injury action before the court,
a judge may direct both parties to attend a mediation conference for the
purpose of settling the case out of court. At the conclusion of an action, if
the court is satisfied that a parTy refused to comply with such a direction, it
may order that party to pay the costs of the action, or such part as the court
directs, after the making of the direction. Unlike the provisions of the Civil
Liability and Courts Act 2004, the Rules of the Superior Courts (Commercial
Proceedings) 2004 do not explicitly allow for the possibility of penalising in
costs a party who has refused to participate in mediation.
11.26
Before discussing the issues of cost sanctions, the Commission concurs
with the following comments of Clarke MR:
“The bane of civil litigation is what I call satellite
litigation that is disputes which are not about the underlying merits. I would
certainly not like to see a new type of satellite litigation in which
complaints about the parties' approach to mediation are investigated in detail
and at great expense.”[1188]
11.27
The Commission agrees with this perspective, satellite litigation
stemming from issues arising directly from the parties’ participation in ADR
processes should be avoided.
(1)
Costs
Sanctions: Good Faith Requirement & Genuine Effort to Compromise
11.28
In Kay-El (Hong Kong) Ltd, v. Musgrave Ltd.[1189]
a Commercial Court case, Kelly J stated that:
“On foot of the order which I made I was furnished with a
report by the mediator who, unfortunately, had to record that although very
substantial progress was made in the mediation she was unable to finalise a
solution. I should mention that the mediator expressed the view that the
parties came to the mediation in good faith and made genuine efforts to reach a
compromise. Such being so the lack of success at mediation carries no costs
implication for the litigation.”
11.29
It is clear from this passage that costs sanctions will not be imposed
on parties in the Commercial Court who come to mediation in “good faith” and
make genuine efforts to reach a compromise. It does not, of course, follow that
Kelly J considered that the requirement of “good faith” is an essential
prerequisite in order to avoid a costs sanction. The Commission would, however,
be concerned that information from the mediator is required to confirm an
element of good faith as this may conflict with the confidentiality of
mediation and may result in a lack of trust in the mediator as he may be
perceived as making a judgement, not about the dispute but about the conduct of
the parties.[1190]
11.30
An explicit good faith requirement in mediation is found in section 38
of the Education for Persons with Special Educational Needs Act 2004 which states that:
“A court hearing proceedings… may in making any decision as
to the costs of those proceedings, have regard to, if such be the case, that
that person did not participate in good faith in such a mediation, and, for the
purpose of determining whether that person did not so participate in good
faith, the court may have regard to the report… prepared in relation to the
mediation.”
11.31
The Commission considers that an explicit requirement of good faith in
mediation may threaten the distinction between mediation and litigation; and,
in particular, the objective of party empowerment.[1191]
11.32
One consequence of a good faith requirement is that mediation
participants may feel uncertain about what actions mediators or courts would
consider bad faith and which may result in costs sanctions. Most good faith
elements depend on an assessment of a person’s state of mind which, by
definition, is subjective.[1192] The
prospect of adjudicating bad-faith claims by using mediator reports has the
potential to distort the mediation process by damaging participants’ faith in
the confidentiality of mediation communications and the mediators’
impartiality.[1193]
11.33
In this respect, the Commission notes that the American Bar Association
Section of Dispute Resolution has adopted a resolution opposing the use of
broad good-faith requirements.[1194]
The resolution states:
“Sanctions should be imposed only for violations of rules
specifying objectively-determinable conduct. Such rule-proscribed conduct would
include but is not limited to: failure of a party, attorney, or insurance
representative to attend a court-mandated mediation for a limited and specified
period or to provide written memoranda prior to the mediations. These rules
should not be labeled as good faith requirements, however, because of the
widespread confusion about the meaning of that term. Rules and statutes that
permit courts to sanction a wide range of subjective behavior create a grave
risk of undermining core values of mediation and creating unintended problems.
Such subjective behaviors include but are not limited to: a failure to engage
sufficiently in substantive bargaining; failure to have a representative present
at the court-mandated mediation with sufficient settlement authority; or
failure to make a reasonable offer.”
11.34
The Commission supports the view expressed there, namely, that
objectively verifiable actions – such as complete refusal to consider
mediation, could attract some form of sanction. The
Commission does not, however, consider it appropriate that subjective matters,
such as the state of mind of the parties, should result in any sanction,
including costs sanctions.
11.35
By contrast, a judicial recommendation that parties enter into the
process in good faith is quite different.[1195]
In that respect, the Commission considers that parties can and should seek a
commitment of good faith from each other by including a good faith provision in
the mediation agreement. The mediator can remind both parties of their previous
commitment throughout the process.
“Encouragement is a means that addresses a person’s state of
mind. Encouragement from the court to participate in good faith is more
forceful than a simple request because the court shows its trust in the
mediation participants…. With an encouragement neither the mediator nor the
court must judge the party’s behaviour.”[1196]
11.36
The Commission provisionally recommendations a Court should not
impose a good faith requirement in mediation or conciliation as this would risk
undermining key principles, including the right to self-determination, the voluntary
nature of the process, the neutrality of the mediator or conciliator and the
confidentiality of the process. The Court should, however, encourage parties to
mediate in good faith.
11.37
Rather than applying any costs sanctions based on the subjective
behaviour on the parties during a mediation (which requires the mediator to
take on a somewhat adjudicatory role), the Commission considers costs sanctions
be based on unreasonable refusal to mediate. The Commission now turns to
discuss the relevant English case law on this issue.
(2)
Costs
Sanctions in England & Wales - “Unreasonable Refusal to Mediate”
11.38
Under rule 44.3 of the post-Woolf Civil Procedure Rules 1998, the
Court has a discretion as to whether costs are payable by one party to another,
and the amount of those costs. As with the Rules of the Superior Court 1986
in Ireland, the general rule is that the unsuccessful party will be ordered to
pay the costs of the successful party, but the rules also provide that the
Court may make a different order. In deciding what order (if any) to make about
costs, the court must have regard to all the circumstances, including the
conduct of all the parties. This includes:
·
conduct before, as well as during, the proceedings and in particular the
extent to which the parties followed any relevant pre-action protocol;
·
whether it was reasonable for a party to raise, pursue or contest a
particular allegation or issue;
·
the manner in which a party has pursued or defended its case or a
particular allegation or issue; and
·
whether a successful claimant exaggerated its claim.
11.39
The manner in which a party has conducted its case has been taken by the
English Courts to include a refusal to attempt to resolve the dispute before
trial by some form of ADR, usually mediation. It has been suggested that this
development raises the possibility that an Irish Court might use its costs
jurisdiction to encourage mediation.[1197]
The Commission now turns to examine English cases which have addressed the
issue of ADR and costs sanctions.
11.40
In Thompson v Commissioner of Police of the Metropolis[1198]
Lord Woolf MR , the “father” of CPR, noted that:
“We draw the parties’ attention to the arrangements which can
now be made by this court [the Court of Appeal] for assistance by way of ADR.
We would hope that the guidance we have provided should enable the appeals to
be settled without difficulty by the parties themselves, but if they are not we
would hope that the parties would seek the assistance of ADR from the court
before proceeding with the appeals. If they do not this may be an appropriate
matter to be considered when determining the order for costs which should be
made.”[1199]
11.41
In Cowl v Plymouth City Council[1200] Lord Woolf reiterated the importance of considering ADR:
“The importance of this appeal is that it illustrates that,
even in disputes between public authorities and the members of the public for
whom they are responsible, insufficient attention is paid to the paramount
importance of avoiding litigation whenever this is possible. Particularly in
the case of these disputes both sides must by now be acutely conscious of the
contribution alternative dispute resolution can make to resolving disputes in a
manner which both meets the needs of the parties and the public and saves time,
expense and stress.”[1201]
11.42
The Cowl case was to an application for judicial review by seven
residents in a residential care home owned by Plymouth City Council. The
claimants claimed that they had a legitimate expectation that it would be their
home for life following assurances to that effect from the Council’s employees.[1202]
Whilst the Court of Appeal did not single out either side for criticism in
failing to consider ADR, it expressed its concern that both parties had focused
on the past, rather than looking to the future. Lord Woolf CJ commented that:
“Without the need for the vast costs which must have been
incurred in this case already being incurred, the parties should have been able
to come to a sensible conclusion as to how to dispose of the issues which
divided them. If they could not do this without help, then an independent
mediator should have been recruited to assist. That would have been a far
cheaper course to adopt. Today sufficient should be known about alternative
dispute resolution to make the failure to adopt it, in particular when public
money is involved, indefensible”
11.43
The important aspect of Lord Woolf’s judgment stems from his strong
emphasis that parties and their advisers should consider ADR. In particular,
Lord Woolf addressed come comments to legal advisers:
“This case will have served some purpose if it makes clear
that the lawyers acting on both sides of a dispute of this sort are under a
heavy obligation to resort to litigation only if it is really unavoidable.”[1203]
11.44
In Dunnett v Railtrack plc[1204] the Court of Appeal decided not to award costs against
the unsuccessful claimant because the defendant had refused to consider
arbitration or mediation in the face of a recommendation to do so by the court.
The case represented “a substantial step in the enforced promotion of ADR by
the courts and has raised some concern for practitioners and litigants alike in
England and Wales about the costs implications flowing from the failure to
partake in some form of ADR.”[1205]
11.45
The claimant had made a claim for damages against the defendant after
some of her horses had been allowed to escape from her property onto the
railway where they were killed. The claimant’s claim was dismissed at trial and
she appealed the decision. When the court gave leave to appeal, the judge
advised her to explore mediation. The claimant had actually proposed mediation
to the defendant before the appeal came on for hearing but the defendant had
turned down the proposal. The claimant was unsuccessful again on appeal but the
Court of Appeal declined to award costs
to the successful respondent.
11.46
The Court of Appeal interpreted CPR as imposing a duty on both the court
and the parties to further the overriding objective of efficiency. Brooke LJ
stated that the duty required the respondent to engage in mediation with the
appellant, even though it had won the legal argument at first instance and had
a realistic expectation that it would win again on appeal. Unless it could
justify its refusal to mediate it would be penalised on costs.[1206]
11.47
Brooke LJ made a significant statement on the nature of mediation and
the role of mediators. He stated that
“Skilled mediators are now able to achieve results
satisfactory to both parties in many cases which are quite beyond the power of
lawyers and courts to achieve. This court has knowledge of cases where intense
feelings have arisen, for instance in relation to clinical negligence claims.
But when the parties are brought together on neutral soil with a skilled
mediator to help them resolve their differences, it may very well be that the
mediator is able to achieve a result by which the parties shake hands at the
end and feel that they have gone away having settled the dispute on terms with
which they are happy to live. A mediator may be able to provide solutions which
are beyond the powers of the court to provide. Occasions are known to the court
in claims against the police, which can give rise to as much passion as a claim
of this kind where a claimant's precious horses are killed on a railway line,
by which an apology from a very senior police officer is all that the claimant
is really seeking and the money side of the matter falls away.”[1207]
11.48
Brooke LJ also emphasised the duty on solicitors to advise clients to
consider ADR, stating that “…if they turn down out of hand the chance of
alternative dispute resolution when suggested by the court, as happened on this
occasion, they may have to face uncomfortable costs consequences.”
11.49
Brooke LJ held that, in the particular
circumstances of the case, given the refusal of Railtrack to contemplate ADR at
a stage before the costs of the appeal started to flow the appropriate order on
the appeal was no order as to costs.
11.50
The decision in Dunnett did not make mediation mandatory before
proceeding to trial, but it was the first example of a successful litigant
winning at trial but losing the subsequent costs award because of an
unreasonable refusal to follow the court’s earlier suggestion to mediate the
dispute.[1208] As noted
by Carey
“The decision in Dunnett v. Railtrack clearly
indicates that the courts in England and Wales take ADR very seriously. The
cost implications flowing from a failure to engage in ADR, especially where proposed
by the court, may now be said to go somewhat further than merely encouraging
the parties to engage in it… The extent to which costs may be apportioned
contrary to conventional practice where ADR has not been utilised add an
element of compulsion, and the parties and their lawyers must now very
seriously consider availing of it, as is clear from Brooke LJ's decision.”[1209]
11.51
The Commission does not necessarily concur with this view that Dunnett
has crossed the line into compulsion, but accepts that the line is quite
thin at this stage.
11.52
In Hurst v Leeming,[1210]
Lightman J provided substantive guidelines on how and when a party could
decline an offer to mediate without being penalised. He stated that unacceptable
reasons for declining mediation included: the level of costs already incurred
in the action; the fact that a claim (as in that case) is for serious
allegations of professional negligence and the strength of the case. Lightman J
stated that, even if a party has “a watertight case this is no justification
for refusing mediation”. Acceptable reasons (in this instance) for
refusing to mediate included the character of the party proposing mediation.
11.53
Lightman J stated the critical factor as being “whether, objectively
viewed, mediation had any real prospect of success…If the court finds that
there was a real prospect, the party refusing may be severely penalised.” The
decision appears to imply that, while mediation is not mandatory, where there
is an unjustified failure to give proper consideration to mediation,
particularly when it offers a realistic prospect of success, adverse costs
consequences can be expected. Lightman J added that:
“Mediation is not in law compulsory, and the protocol spells
that out loud and clear. But alternative dispute resolution is at the heart of
today’s civil justice system, and any unjustified failure to give proper
attention to the opportunities afforded by mediation…there must be anticipated
as a real possibility that adverse consequences may be attracted.”
11.54
The Court of Appeal decision in Halsey v Milton Keynes NHS Trust[1211] provides comprehensive guidance on the imposition of
costs sanctions. The Court affirmed the views expressed in Dunnett v
Railtrack plc[1212] which modified the observations of Lightman J in Hurst
v Leeming[1213]
and provided additional general comments about mediation.
11.55
Halsey was a clinical negligence case. The claimant sued a health
authority for causing the death of her husband. She failed in her claim.
However, she asked the court to refuse costs to the defendant NHS Trust because
it had repeatedly refused to mediate. Prior to the trial of the action, the
plaintiff’s solicitors had made a number of attempts to avoid a Court hearing,
offering to limit the plaintiff’s claim to the costs of attending at an
inquest, offering in five letters written to the trust to mediate, and then
writing a letter to the Secretary of State for Health setting out this history
and asking that the letter be taken into account “when the final bill payable
by the NHS for legal costs is in the region of €100,000”.
11.56
The defendant consistently refused to negotiate and to mediate. Before
the County Court, the plaintiff’s claim was dismissed and, following the usual
rule, costs were awarded to the defendant despite the fact that the Defendant
had refused to mediate. On appeal, the Court of Appeal upheld the County Court
decision on costs as it considered that the defendant was justified in refusing
to mediate because it reasonably believed it would win.
11.57
The importance of the Halsey decision lies in the fact that the
Court clarified the factors which it will take into account in deciding whether
a party’s refusal to mediate is unreasonable and, as such, the circumstances in
which a successful party could be penalised as to costs for unreasonably
refusing ADR. The Court listed six factors which may be relevant to the
question of whether a party has unreasonably refused ADR. These factors
include:
(a)
The Nature of the Dispute
11.58
As noted by Dyson LJ “Even
the most ardent supporters of ADR acknowledge that the subject matter of some
disputes renders them intrinsically unsuitable for ADR.”[1214]
The Commission has previously noted that some disputes are not appropriate for
mediation. For example, family disputes where domestic violence is alleged,
where there are allegations of child sexual or physical abuse, or where power
imbalances exist between the parties. The Court in Halsey also provided
examples of cases which they considered not to be appropriate such as cases
where a party wants the court to resolve a point of law, where it is considered
that a binding precedent would be useful or cases where injunctive or other
relief is essential to protect the position of a party.[1215]
(b)
The Merits of the Case
11.59
Dyson LJ also noted
that a party’s reasonable belief that he or she has a strong case is
relevant to whether he or she has acted reasonably in refusing ADR. This is
because if the position were otherwise there would be considerable scope for a
claimant to use the threat of costs sanctions to extract a settlement from the
defendant even where the claim is without merit.[1216]
Dyson LJ stated that a party who unreasonably believes that his case has
watertight is no justification for refusing mediation, but a party who
reasonably believes that he or she has a watertight case may well have
sufficient justification for a refusal to mediate.
(c)
The extent to which other settlement methods have been
attempted
11.60
Dyson LJ stated that
where settlement offers have already been made, but rejected, this is a
relevant factor. It may show that one party is making efforts to settle, and
that the other party has unrealistic views of the merits of the case. But he
also pointed out that mediation often succeeds where previous attempts to
settle have failed.
(d)
Whether the costs of mediation would have been
disproportionately high
11.61
Dyson LJ noted that this is an important factor where, on a realistic
assessment, the sums at stake in the litigation are comparatively small. He
noted that a mediation can sometimes be as expensive as a day in court,
especially if the parties have legal representation present during mediation,
coupled with the mediator’s fees. He added that
“Since the prospects of a successful mediation cannot be
predicted with confidence, the possibility of the ultimately successful party
being required to incur the costs of an abortive mediation is a relevant factor
that may be taken into account in deciding whether the successful party acted unreasonably
in refusing to agree to ADR.”[1217]
(e)
Whether any delay in setting up and attending
mediation would have been prejudicial
11.62
Dyson LJ considered that if mediation is suggested late in the day, its
acceptance may have the effect of delaying the trial of the action. This is a
factor which may be relevant in deciding whether a refusal to agree to ADR was
unreasonable.
(f)
Whether mediation had a reasonable prospect of
success.
11.63
Dyson LJ accepted that whether the mediation had a reasonable prospect
of success could be relevant to the reasonableness of A's refusal to accept B's
invitation to agree to it. He stated that, in a situation where B has adopted a
position of intransigence, A may reasonably take the view that a mediation has
no reasonable prospect of success because B is most unlikely to accept a
reasonable compromise. That would be a proper basis for concluding that a
mediation would have no reasonable prospect of success, and that for this
reason A's refusal to mediate was reasonable. By contrast, Dyson LJ noted that,
if A has been unreasonably obstinate, the court might well decide, on that
account, that a mediation would have had no reasonable prospect of success. But
obviously this would not be a proper reason for concluding that A's refusal to
mediate was reasonable. A successful party cannot rely on his own
unreasonableness in such circumstances.
11.64
Dyson LJ also stated
that the burden should not be on the refusing party to satisfy the court
that mediation had no reasonable prospect of success. The fundamental question
is whether it has been shown by the unsuccessful party that the successful
party unreasonably refused to agree to mediation.[1218] Lightman J has criticised this aspect of Dyson
LJ’s judgment arguing that:
“a decision as to the onus of proof of reasonableness
or unreasonableness must be guided by three factors: first, that those
otherwise deprived of access to justice should be given a chance of achieving
it in this way; secondly, the commonsense proposition that the party who
refuses to take part in mediation should have to give, explain and justify his
decision; thirdly, the explicit duty of the court to encourage the use of
mediation and discourage unjustified refusals to do so. All these factors point
to imposing the burden of justifying the refusal on the party who refuses to
proceed to mediation.”[1219]
11.65
The Commission considers that, in general terms, the guidelines set out
in Halsey are appropriate.[1220]
They allow the Court to determine whether to impose cost sanctions without
having to explore the subjective intentions of the parties during a mediation.
As Dyson LJ noted:
“… parties are entitled in an ADR to adopt whatever position
they wish and if, as a result the dispute is not settled, that is not a matter
for the court… if the integrity and confidentiality of the process is to be
respected, the court should not know, and therefore should not investigate, why
the process did not result in agreement.”[1221]
11.66
The Commission considers this is an important passage. It highlights
that the subjective intentions of the parties during the mediation should not
be reviewed when determining costs.
11.67
The Commission notes in Carleton Seventh Earl of Malmesbury v Strutt
& Parker[1222]
the parties waived the confidentiality protection of the mediation and provided
details about the mediation to the Court. In determining the issues of costs,
Jack J examined the conduct of the parties during the mediation:
“I consider that the claimants' position at the mediation was
plainly unrealistic and unreasonable. Had they made an offer which better
reflected their true position, the mediation might have succeeded… For a party
who agrees to mediation but then causes the mediation to fail by his reason of
unreasonable position in the mediation is in reality in the same position as a
party who unreasonably refuses to mediate. In my view it is something which the
court can and should take account of in the costs order in accordance with the
principles considered in Halsey.”[1223]
11.68
As previously noted, the Commission considers that, even when parties
waive a mediation privilege, the conduct of the parties at the mediation should
not be examined by the Court when determining costs as it would, in the
Commission’s view, be detrimental to the development of mediation as a
facilitative, non-adjudicatory process.
11.69
The Commission also considers that a danger could arise in which parties
will begin to waive the confidentiality of the mediation process so as to use
information as leverage to the detriment of the other party during subsequent
litigation proceedings. The Commission agrees with the view that where
mediation is undertaken for such improper strategic purposes it has the
potential to add to the ultimate costs of civil proceedings. [1224]
(3)
Conclusion
11.70
The Commission’s review
of developments in other jurisdiction’s on costs sanctions indicates the
importance of this in the medium term development of ADR in Ireland and the
Commission are not minded at this stage to make a recommendation on the issue
of costs sanctions and instead invite submissions on this issue and on the
factors that might be applied in determining whether a Court should imposed
such sanctions. The Commission considers, however, that whatever final view is
taken on this in general, it is important to note that family law cases should
not be subject to the threat of cost sanctions for an unreasonable refusal to
mediate.
11.71
The Commission invites submissions as to whether, in general, costs
sanctions should be imposed on a party by a Court for an unreasonable refusal
to consider mediation or conciliation and whether a Court should apply the
following factors in determining that a party has unreasonably refused to
consider mediation or conciliation: the nature of the dispute; the merits of
the case; the extent to which other settlement methods have been attempted;
whether the costs of mediation would have been disproportionately high; whether
any delay in setting up and attending mediation would have been prejudicial;
and whether mediation had a reasonable prospect of success.
11.72
The Commission provisionally recommends that family law cases should
not be subject to costs sanctions for unreasonable refusal to consider
mediation.
D
Mediator
Reporting to the Court
11.73
The issue of a mediator reporting to the court raises a number of
questions concerning confidentiality. In some jurisdictions, including Ireland,
mediators’ reports can be used by the Courts to determine whether costs should
be awarded against a party who refused to partake in the mediation process.
Under section 16 of the Civil Liability and Courts Act 2004 which
concerns mediation in personal injuries litigation only, states:
A person appointed under section 15(4) to be the chairperson
of a mediation conference shall prepare and submit to the court a report, which
shall set out -
(a) where the mediation conference did not take place, a
statement of the reasons as to why it did not take place, or
(b) where the mediation conference did take place
a
statement as to whether or not a settlement has been reached in the personal
injuries action concerned, and
where
a settlement has been entered into, a statement of the terms of the settlement
signed by the parties thereto.
At the conclusion of a personal injuries action, the court
may, if satisfied that a party to the action failed to comply with a direction
under section 15 (1), make an order
directing that party to pay the costs of the action, or such part of the costs
of the action as the court directs, incurred after the giving of the direction
under section 15 (1).
11.74
A similar approach is evident in the Education for Persons with
Special Educational Needs Act 2004. Section 24(4)(c) of the 2004 Act states
that a mediator must prepare and furnish to each of the parties a report in
relation to the mediation. Any subsequent court hearing proceedings may, in
making any decision as to the costs of those proceedings, have regard to the
fact that that a person did not participate in good faith in a mediation, and,
for the purpose of determining whether that person did not so participate in
good faith, the court may have regard to the mediator’s report.
11.75
The Commission considers that the content of mediators’ reports to the
Court should be narrowly restricted. Confidentiality during a mediation session
is essential to protect the integrity of the process. For the mediation to be
effective, a mediator must have the trust of all participants, both in joint
sessions and in private caucuses. Requiring mediators to report on the conduct
of the parties to the court imperils the confidentiality of the mediation
process.
11.76
Some jurisdictions have placed an obligation on a mediator to make a
neutral summary of the outcome of the mediation and make it available to the
court if requested. For example, in California a mediator has to complete a
Statement of Agreement or Non-Agreement. This identifies the mediator, the date
or dates on which the mediation occurred, the total number of hours spent in
the mediation and whether it ended in settlement. If the mediation did not take
place, the mediator can either tick a box stating that a party who was ordered
to appear at the mediation did not appear, or a box marked “other reason”,
without disclosing any confidential information.
11.77
The Commission considers that this is an appropriate type of mediator
report and that this would also allow the Court to have sufficient information
on which to determine whether, in objective terms the parties entered into the
mediation in good faith.
11.78
The Commission provisionally recommends that the content of a
mediator’s or conciliator’s report to the court should be restricted to a
neutral summary of the outcome of the mediation or conciliation.
E
Recovery
of Mediation Costs
11.79
The Commission notes that the costs of preparing and participating in a
mediation may be substantial for parties, especially if they have separate
legal costs incurred stemming from the mediation such as paying for legal
representative at the mediation. The standard agreement to which parties agree
before they mediate usually provides that the mediator’s fee will be split
equally or otherwise, that each party will bear its own costs. Sir Anthony
Clarke, Master of the Rolls in England and Wales, has suggested that as some
may complain about the costs of mediation, it would be possible to have a
general principle that the costs of a mediation will ordinarily be treated as
costs in the case. In that respect he suggests that, the person with the strong
case will then be protected against the costs of a failed mediation if the
action subsequently succeeds.”[1225]
11.80
In National Westminster Bank v Feeney[1226] the
English High Court confirmed that costs arising from a mediation fall within
the definition of recoverable costs of litigation. However, this is only so if
it is not contrary to any provision relating to costs contained in the
mediation agreement or in the subsequent settlement agreement.
11.81
In Lobster Group Ltd v Heidelberg Graphic Equipment Ltd[1227]
the issue of recovering the pre-litigation costs including costs incurred from
mediation was also examined by the English Technology and Construction Court.
The normal form of mediation agreement was entered into in this case but that
mediation had happened 2½ years before proceedings were issued. Coulson J drew
a distinction between pre-action mediations (as in Lobster Group) and
mediations that take place after litigation has started (as in Feeney):
"… unlike the costs incurred in a pre-action protocol
[under the CPR], I do not believe that the costs of a separate pre-action
mediation can ordinarily be described as ‘costs of and incidental to the
proceedings’. On the contrary, it seems to me clear that they are not. They are
the costs incurred in pursuing a valid method of alternative dispute resolution
… Both the course of the mediation itself and the reasons for its unsuccessful
outcome are privileged matters known only to the parties. As a matter of
general principle, therefore, I do not believe that the costs incurred in
respect of such a procedure are recoverable …"
11.82
Coulson J went on to concede, however, that it was much easier to see
why the cost of post-litigation mediations might be recoverable: there was
greater proximity to the proceedings and, on that basis, a mediation could well
be regarded as ‘negotiations with a view to settlement’ and so, recoverable.[1228]
11.83
The Commission notes that this issue has not been examined in Ireland
and would welcome submissions on this matter.
11.84
The Commission invites submissions as to whether mediation or
conciliation costs should be recoverable costs of any subsequent litigation.
12
CHAPTER 12
summary
of PROViSIONAL RECOMMENDATIONS
12.01
The Commission’s provisional recommendations in this Consultation Paper
may be summarised as follows:
12.02
The Commission concurs with the view that ADR provides a suitable means
of resolving disputes in appropriate circumstances and provisionally recommends
that the key principles underlying ADR, in particular mediation and
conciliation, should be set out in statutory form. [Paragraph 1.74]
12.03
The Commission defines ADR as a broad spectrum of structured processes,
including mediation and conciliation, which does not include litigation though
it may be linked to or integrated with litigation, and which a involves the
assistance of a neutral third party, and which empowers parties to resolve
their own disputes. [Paragraph 2.12]
12.04
The Commission provisionally recommends that the more commonly used ADR
terms, in particular mediation and conciliation, should be clearly and
consistently defined in legislative form. [Paragraph 2.127]
12.05
The Commission provisionally recommends that when provision for
mediation is made in legislative form, it should be defined as a facilitative,
consensual and confidential process, in which parties to the dispute select a
neutral and independent third party to assist them in reaching a mutually
acceptable negotiated agreement. [Paragraph 2.128]
12.06
The Commission provisionally recommends that when provision for
conciliation is made in legislative form, it should be defined as an
advisory, consensual and confidential process, in which parties to the dispute
select a neutral and independent third party to assist them in reaching a mutually
acceptable negotiated agreement. [Paragraph 2.129]
12.07
The Commission provisionally recommends that, in civil claims
generally, courts should be permitted, either on their own motion
initiative or at the request of a party to such claims, to make an order
requiring the parties to consider resolving their differences by mediation or
conciliation. [Paragraph 3.92]
12.08
The Commission provisionally recommends that the participation of
parties in mediation should be voluntary and that the mediator should
play no advisory or evaluative role in the outcome of the process, but may
advise on or determine the process.[Paragraph 3.95]
12.09
The Commission provisionally recommends the participation of parties
in conciliation should be voluntary and that the conciliator should not
have the authority to impose on the parties a solution to the dispute but may
make recommendations to the parties for the settlement of the dispute, which
the parties may or may not accept. [Paragraph 3.96]
12.10
The Commission provisionally recommends that a pilot Court-annexed
mediation scheme should be established in the District Court based on the
principles of the voluntary participation of the litigants. [Paragraph 3.98]
12.11
The Commission provisionally recommends that the principle of
confidentiality of mediation and conciliation should be placed on a statutory
basis and invites submissions as to whether confidentiality in mediation should
be subject to a distinct form of privilege. [Paragraph 3.139]
12.12
The Commission provisionally recommends that parties to mediation
or conciliation should be fully informed about the process by the neutral and
independent mediator or conciliator before they consent to participate in it,
that their continued participation in the process should be voluntary, and that
they understand and consent to the outcomes reached in the process. [Paragraph
3.152]
12.13
The Commission provisionally recommends that parties should be
encouraged to seek independent advice, legal or otherwise, before signing an
agreement entered into at conciliation or mediation. [Paragraph 3.153]
12.14
The Commission provisionally recommends that any bodies responsible
for providing ADR processes, in particular mediation and
conciliation, should periodically review the procedures involved to ensure
that the dispute is being dealt with expeditiously and appropriately.
[Paragraph 3.176]
12.15
The Commission provisionally recommends that ADR mechanisms should aim
at preserving the flexibility of the process. [Paragraph 3.184]
12.16
The Commission provisionally recommends that the requirement of
neutrality and impartiality be included in any general statutory formulation
that concerns mediation and conciliation. [Paragraph 3.187]
12.17
The Commission invites submissions as to whether the European Code of
Conduct for Mediators should be given a statutory basis in Ireland, including
in the form of a Code of Practice. [Paragraph 3.192]
12.18
The Commission provisionally recommends that a Court may enforce any
agreement reached at mediation or conciliation.[Paragraph 3.217]
12.19
The Commission invites submissions as to whether the parties in a
mediation or conciliation may agree in writing to suspend the running of any
limitation period. [Paragraph 3.220]
12.20
The Commission invites submissions as to whether the 2008 EC Directive
on Certain Aspects of Mediation in Civil and Commercial Matters should be
applied to disputes that do not involve a cross-border element, that is
domestic disputes. [Paragraph 3.223]
12.21
The Commission
reiterates its previous recommendations set out in the Commission’s 1996 Report
on Family Courts (LRC 52-1996) in relation to information in family law
disputes. [Paragraph 5.14]
12.22
The Commission invites submissions as to whether separating and
divorcing parents should be encouraged to develop parenting plans. [Paragraph
5.30]
12.23
The Commission provisionally recommends that, where appropriate,
mediation should be considered by parties to a family dispute before
litigation. [Paragraph 5.44]
12.24
The Commission invites submissions as to whether children should
participate in mediation proceedings affecting them. [Paragraph 5.66]
12.25
The Commission
reiterates its previous recommendations set out in the Commission’s 1996 Report
on Family Courts (LRC 52-1996) in relation to enforcement and review of
mediated agreements. [Paragraph 5.74]
12.26
The Commission invites
submissions as to whether a statutory Code of Practice or Guidelines for
collaborative lawyering should be introduced. [Paragraph 5.157]
12.27
The Commission
provisionally recommends the extension to all Circuit Courts of case
conferencing in family disputes by County Registrars. [Paragraph 5.162]
12.28
The Commission
provisionally recommends that a Court should adjourn proceedings when
appropriate to allow parties to a dispute arising under section 117 of the Succession
Act 1965 to consider mediation. [Paragraph
5.174]
12.29
The Commission provisionally recommends that a statutory provision be
considered which would allow medical practitioners to make an apology and explanation
without these being construed as an admission of liability in a medical
negligence claim. [Paragraph 6.21]
12.30
The Commission invites
submissions as to whether a pre-action procedure providing for mediation in a
medical negligence claims should be considered. [Paragraph 6.43]
12.31
The Commission invites
submissions as to whether mediation and conciliation orders should be
introduced in the Commercial Court which would set out the necessary steps that
parties must follow when considering mediation and conciliation. [Paragraph
7.45]
12.32
The Commission invites submissions as to whether a general statutory
framework for mediation and conciliation in commercial disputes should be put
in place, which would include small commercial (including consumer) disputes
and contracts covered by the Government’s Standard Contracts for Public Works.
[Paragraph 7.60]
12.33
The Commission provisionally recommends that mediation and conciliation
may be appropriate for the resolution of shareholder disputes under section 205
of the Companies Act 1963 and should be considered prior to litigation.
[Paragraph 7.66]
12.34
The Commission invites submissions as to whether the recommendations in
the European Consumer Centre’s 2008 Report The development of Alternative
Dispute Resolution (ADR) in Ireland : An analysis of complaints, best practice
and future recommendations should be incorporated into a statutory Code of
Practice concerning mediation and conciliation in consumer disputes.[Paragraph
8.36]
12.35
The Commission commends the recommendations on online dispute resolution
of consumer disputes made by the Information Society Commission in its 2002
Report Building Trust and by Forfas in its 2002 Report Legislating for
Competitive Advantage in e-Business and Information & Communications
Technologies and invites submissions as to whether they should be incorporated
into a statutory Code of Practice concerning mediation and conciliation in
consumer disputes. [Paragraph 8.54]
12.36
The Commission provisionally recommends that the jurisdictional limit of
the Small Claims Court be increased to €3,000. [Paragraph 8.61]
12.37
The Commission provisionally recommends the continued development of
mediation and conciliation services by community law centres for the resolution
of community and neighbour property disputes. [Paragraph 9.23]
12.38
The Commission provisionally recommends that property boundary disputes
are appropriate for resolution through mediation and conciliation and that
parties should be advised by their legal representatives to consider and
attempt mediation or conciliation in such disputes prior to the commencement of
litigation. [Paragraph 9.25]
12.39
The Commission provisionally recommends that the courts should continue
to be pro-active in advising parties in property disputes to consider the
adjournment of hearings to allow the parties to consider mediation or
conciliation. [Paragraph 9.26]
12.40
The Commission invites submissions on whether ADR, in particular
mediation, has a role to play in the resolution of planning application
disputes. [Paragraph 9.50]
12.41
The Commission provisionally recommends that training and accreditation
of mediators is essential to ensure the quality of the process and invites
submission as to whether this should be included in any statutory framework for
mediation. [Paragraph 10.09]
12.42
The Commission provisionally recommends that the relevance of ADR,
including mediation and conciliation, should be incorporated into third level
programmes in law and other disciplines and the professional programmes
conducted by the Law Society of Ireland and the Bar Council of Ireland.
[Paragraph 10.61]
12.43
The Commission invites submissions as to whether the regulation of
mediators should continue at present on a non-statutory basis, subject to the
principles to be set out in a statutory framework for mediation and
conciliation. [Paragraph 10.64]
12.44
The Commission provisionally recommends that all family mediators should
receive specialist training in this particular area. [Paragraph 10.65]
12.45
The Commission provisionally recommends that a non-statutory scheme
should be established, under the auspices of the Department of Justice,
Equality and Law Reform, to provide for the accreditation of organisations, which, in turn, accredit
individual ADR practitioners. [Paragraph 10.66]
12.46
The Commission provisionally recommendations a Court should not impose a
good faith requirement in mediation or conciliation as this would risk
undermining key principles, including the right to self-determination, the
voluntary nature of the process, the neutrality of the mediator or conciliator
and the confidentiality of the process. The Court should, however, encourage
parties to mediate in good faith. [Paragraph 11.36]
12.47
The Commission invites submissions as to whether, in general, costs
sanctions should be imposed on a party by a Court for an unreasonable refusal
to consider mediation or conciliation and whether a Court should apply the
following factors in determining that a party has unreasonably refused to consider
mediation or conciliation: the nature of the dispute; the merits of the case;
the extent to which other settlement methods have been attempted; whether the
costs of mediation would have been disproportionately high; whether any delay
in setting up and attending mediation would have been prejudicial; and whether
mediation had a reasonable prospect of success. [Paragraph 11.71]
12.48
The Commission provisionally recommends that family law cases should not
be subject to costs sanctions for unreasonable refusal to consider mediation.
[Paragraph 11.72]
12.49
The Commission provisionally recommends that the content of a mediator’s
or conciliator’s reports to the court should be restricted to a neutral summary
of the outcome of the mediation or conciliation. [Paragraph 11.78]
12.50
The Commission invites submissions as to whether mediation or
conciliation costs should be recoverable costs of any subsequent litigation.
[Paragraph 11.84]
[1]
See Report on the
Third Programme of Law Reform 2008 - 2014 (LRC 86 – 2007). Project 5 in the
Third Programme commits the Commission to examine the main processes of
alternative dispute resolution, on which the Commission began work under its Second
Programme of Law Reform 2000-2007.
[2]
In the Consultation
Paper, the Commission sometimes uses the full title Alternative Dispute
Resolution and sometimes the acronym ADR.
[3]
See Chapter 7, below.
[4]
See Chapter 8, below.
[5]
See Chapter 5, below.
[6]
The Commission does not,
in this respect, ignore the indications in the research of indirect cost
savings that may arise from speedy resolution of, for example, large commercial
disputes (whether in the reduced time required of senior management or long
term savings through the preservation of business relationships).
[7]
In the sense that ADR
may involve a meeting between those in dispute and an apology from a wrongdoer
it involves a passing resemblance to restorative justice, but that is where the
similarity ends. The Commission emphasises that ADR is associated solely
with civil disputes and has no connection with restorative justice, which is
connected with criminal law. The Commission’s Third Programme of Law
Reform 2008-2014, Project 15, concerns restorative justice.
[8]
See the Commission’s Report
on Multi-Party Litigation (LRC 76 - 2005).
[9]
See paragraph 1.14,
below.
[10]
See Chapter 4, below.
[11]
See the Commission’s Report on
Multi-Unit Developments (LRC 90 - 2008).
[12]
See the discussion in Chapter 8,
below.
[13]
See also Chapter 8, below.
[14]
See Chapter 6, below.
[15]
See the discussion of the relevant provisions of the Medical Practitioners
Act 2007 in Chapter 6, below.
[16]
See Chapter 4, below.
[17]
The Arbitration Bill 2008 proposes
significant reforms of the statutory code on arbitration.
[18]
Fiadjoe Alternative
Dispute Resolution: A Developing World Perspective (Cavendish 2004)
at 8.
[19]
Miller & Sarat
“Grievances Claims and Disputes: Assessing the Adversary Culture” (1980-1981)
15 Law & Society Review 525 at 527.
[20]
Miller & Sarat
“Grievances Claims and Disputes: Assessing the Adversary Culture” (1980-1981)
15 Law & Society Review 525 at 527.
[21]
Ibid.
[22]
Marshall “Would ADR Have
Saved Romeo and Juliet?” (1998) 36 Osgoode Hall Law Journal 4 at 775.
[23]
Miller & Sarat
“Grievances Claims and Disputes: Assessing the Adversary Culture”
(1980-1981) 15 Law & Society Review 525 at 527.
[24]
Brown & Marriott ADR
Principles and Practices (2nd ed Sweet & Maxwell London
1999) at 2.
[25]
Genn & Paterson Paths
to Justice Scotland: What People in Scotland Do and Think About Going to Law
(Hart 2001) at 87.
[26]
See Van Riemsdijk “Cross-Cultural
Negotiations Interactive Display.” Paper delivered at The Expanding ADR
Horizon Conference, 27th April 2007, Trier.
[27]
The iceberg diagram is taken
from Gugel “The Iceberg Model for Conflict Dynamics” Tubingen Institute for
Peace Education. Available at
http://www.dadalos.org/frieden_int/grundkurs_4/eisberg.htm.
[28]
Cloke & Goldsmith Resolving
Conflicts at Work (Jossey-Bass 2000) at 114.
[29]
Dispute Resolution Systems:
Lessons from Other Jurisdictions. A Report by the Ontario Institute on
Governance (March 12, 1999) at 5. Available at
http://www.iog.ca/publications/dispute_res.pdf.
[30]
See Goldberg Sander &
Green Dispute Resolution (Little Brown & Co. 1985).
[31]
Pel “Court-annexed
Mediation in the Netherlands. The execution of the nation-wide project -
Mediation and the Judiciary”. Paper presented at Southeast European
Regional Conference on Alternative Dispute Resolution Slovenia, November 2002.
Available at http://www.rechtspraak.nl/NR/rdonlyres/B9573CE2-503B-4D3A-B281-C6563D459D84/0/JustVerkEngvertalingno9_2000.pdf.
[32]
Cappelletti “Alternative
Dispute Resolution Processes within the Framework of the World Wide Access to
Justice Movement” (1993) 56 The Modern Law Review 287.
[33]
See Galanter “Reading the
Landscape of Disputes: What We Know and Don’t Know (And Think We Know) About
Our Allegedly Contentious and Litigious Society” (1983) 31 UCLA L Rev 4.
[34]
Menkel-Meadow “Institutions
of Civil Justice”. Paper prepared for the Scottish Consumer Council Seminar
on Civil Justice (15 December 2004), available at www.scotconsumer.org.uk/civil.
[35]
See paragraphs 1.55 to 1.57
below for a discussion on this concept.
[36]
See Green Paper on
alternative dispute resolution in civil and commercial matters COM/2002/0196
Final. Available at http://eurlex.europa.eu/.
[37]
See Lammy “Speech on key
issues for Government” delivered at Centre for Effective Dispute Resolution
Conference: The First Mediators’ Congress, November 2003, London. Available at http://www.dca.gov.uk/speeches/2003/dl201103.htm.
[38]
See Law Reform Commission Report
on Multi-Party Litigation (LRC 76-2005).
[39]
Brown & Marriott ADR
Principles and Practices (2nd Ed Sweet & Maxwell London
1999) at 3.
[40]
See Glasl Confronting
Conflict: A First-Aid Kit for Handling Conflict (Hawthorn Press June 1999).
Table below is taken from this source.
[41]
Alternative dispute
Resolution – A Discussion Paper (Lord Chancellor’s Department, November
1999).
[42]
Alternative dispute
Resolution – A Discussion Paper (Lord Chancellor’s Department, November
1999) at 4.9.
[43]
See Modern Law for a Modern
Scotland A Report on Civil Justice in Scotland (Scottish Executive,
February 2007) at 29.
[44]
Speech delivered by The Hon.
Warren Winkler Chief Justice of Ontario “Access to Justice, Mediation:
Panacea or Pariah?” (2007). Available at
http://www.ontariocourts.on.ca/coa/en/ps/speeches/access.htm.
[45]
Modern Law for a Modern
Scotland A Report on Civil Justice in Scotland (Scottish Executive,
February 2007) at 29.
[46]
See Hogan and Whyte (eds) JM
Kelly: The Irish Constitution (4th ed Butterworths 2003).
[47]
Lord Woolf Access to
Justice, Interim Report (1995) at Chapter 4.7. 2.
[48]
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.
[49]
Ibid. at 10.
[50]
The Civil Justice System in
Scotland – A Case for Review? The Final Report of the Civil Justice Advisory
Group (Scottish Consumer Council, 2005) at 48.
[51]
Example based on case study in
Sander & Rozdeiczer “Matching Cases and Dispute Resolution Procedures:
Detailed Analysis Leading to a Mediation-Centered Approach’” (2006) 11 Harv
Negot L Rev 1.
[52]
See Sander & Rozdeiczer
“Matching Cases and Dispute Resolution Procedures: Detailed Analysis Leading to
a Mediation-Centered Approach’” (2006) 11 Harv Negot L Rev 1.
[53]
Burger “Isn’t There a Better Way”
(March, 1982) 68 American Bar Association Journal 274 - 277 at 274.
[54]
Nelson “Adapting ADR to
Different Cultures” (Dec 15, 2001). Online article available at
http://www.gowlings.com/resources/publications.asp?pubid=776.
[55]
See Fuller "Mediation -
Its Forms and Functions" (1971) 44 S Cal L Rev 305 at 325.
[56]
Nelson “Adapting ADR to
Different Cultures” (Dec 15, 2001). Online article available at http://www.gowlings.com/resources/publications.asp?pubid=776.
[57]
Barrett A History of
Alternative Dispute Resolution (Jossey-Bass San Francisco 2004) at 7.
[58]
See the discussion of the
process on med-arb in Chapter 2, below.
[59]
Barrett A History of
Alternative Dispute Resolution (Jossey-Bass San Francisco, 2004) at 7.
[60]
Nelson “Adapting ADR to
Different Cultures” (Dec 15, 2001). Online article available at
http://gowlings.com/resources/publications.asp?Pubid=776#N_2_.
[61]
Brithem is an agent noun from
breth, and so means ‘maker of judgements’ Kelly A Guide to Early Irish Law
Volume III (Dublin Institute for Advanced Studies, 1998) at 51.
[62]
A History of Arbitration in
Ireland The Dublin International Arbitration Centre at
www.dublinarbitration.ie.
[63]
Ibid.
[64]
Ury Must We Fight? From the
battlefield to the schoolyard – A new perspective on violent conflict and its
prevention (Jossey Bass 2002) at 40.
[65]
Barrett A History of
Alternative Dispute Resolution (Jossey-Bass San Francisco, 2004) at 3.
[66]
Ibid. at 4.
[67]
Barrett A History of
Alternative Dispute Resolution (Jossey-Bass San Francisco, 2004) at 5.
[68]
Ibid.
[69]
Wachter “Overwhelmed Legal
System in China Leads to Grassroots Mediation” (February 2008) Columbia Law
School Press Release. Online article available at http://www.law.columbia.edu/media_inquiries/news_events/2008/february2008/china_mediation.
[70]
Matthew 5:9-1; Timothy 2:5-6;
Corinthians 6:1-4.
[71]
10 Will. 3 c. 14 (Irl). The
1698 Act was repealed (with a saving for any existing arbitrators subject to
its terms) by section 8 of the Arbitration Act, 1954.
[72]
A History of Arbitration in
Ireland The Dublin International Arbitration Centre,
www.dublinarbitration.ie. See also Moran “A legend to rival the Marie Celeste” The
Irish Times 11 November 2005.
[73]
Ibid.
[74]
A History of Arbitration in
Ireland The Dublin International Arbitration Centre,
www.dublinarbitration.ie. See also Moran “A legend to rival the Marie Celeste” The
Irish Times 11 November 2005.
[75]
Ibid.
[76]
A History of Arbitration in
Ireland The Dublin International Arbitration Centre,
www.dublinarbitration.ie. See also Moran “A legend to rival the Marie Celeste” The
Irish Times 11 November 2005.
[77]
See Chapter 7, below.
[78]
Ibid. at 7.80.
[79]
Burchell v. Marsh 58 US
344.
[80]
Ibid at 349.
[81]
This was later renamed the
National Mediation Board in 1943.
[82]
See Shone “Law Reform and
ADR: Pulling Strands in the Civil Justice Web” Paper presented at the
Australasian Law Reform Agencies Conference April 2006 Wellington New Zealand
at 3. Available at
http://www.lawcom.govt.nz/UploadFiles/SpeechPaper/8208298e-fef7-4c6b-a38d-9e65ed2f99f9//Session%202B%20-%20ADR%20-%20Shone.pdf.
[83]
Stempel “Reflections on
Judicial ADR and the Multi-Door Courthouse at Twenty; Fait Accompli, Failed
Overture, or Fledging Adulthood?” (1996) 11 Ohio St J on Disp Resolution
at 297.
[84]
Subrin “Teaching Civil
Procedure While You Watch It Disintegrate” (1993) 59 Brook L Rev 115 at 1158.
[85]
Hensler “Our Courts,
Ourselves: How the Alternative Dispute Resolution Movement us Re-Shaping Our
Legal System” (2003-2004) 108 Penn St L Rev at 165.
[86]
Sander “Varieties of Dispute
Processing” (1976) 70 Federal Rules Decisions 79 at 112-113.
[87]
Sander “Varieties of Dispute
Processing” (1976) 70 Federal Rules Decisions 79 at 131.
[88]
Ibid. at 114.
[89]
Ibid. at 132.
[90]
Sander “Varieties of Dispute
Processing” (1976) 70 Federal Rules Decisions 79 at at 120.
[91]
The Hon. Justice Brian J
Preston “The Land and Environment Court of New South Wales: Moving Towards a
Multi-Door Courthouse”. Keynote Address at LEADR NSW Chapter Annual Dinner
November 2007 Sydney at www.lawlink.nsw.gov.au/.../$file/Paper_15Nov07_Preston_LEC_Multi_door_Court.doc.
[92]
Including Singapore and
Nigeria (Lagos, Kano and Abuja).
[93]
Benham & Boyd Barton
“Alternative Dispute Resolution: Ancient Models Provide Modern Inspiration”
(1995-1996) 12 Ga St U L Rev 623 at 635.
[94]
See Lord Woolf, Access to
Justice, Interim Report (1995) and Lord Woolf, Access to Justice Final
Report (1996).
[95]
Ibid.
[96]
Ibid.
[97]
CPR 1.1(1).
[98]
CPR 1.1(2).
[99]
CPR 1.4.
[102]
See the discussion on costs
sanctions in Chapter 11, below.
[103]
CPR r. 44.5(3).
[104]
In March 2001, the Lord
Chancellor published a formal pledge committing Government Departments and
agencies to settle disputes by ADR techniques. See
http://www.ogc.gov.uk/documents/cp0077.pdf.
[105]
Speech by Mr Justice Lightman Mediation:
An Approximation to Justice 28 June 2007. Available at
http://www.judiciary.gov.uk/docs/speeches/berwins_mediation.pdf.
[106]
Family Mediation in Europe
Recommendation No. R (98)1.
[107]
Green Paper on alternative
dispute resolution in civil and commercial matters COM/2002/0196 Final.
Available at http://eurlex.europa.eu/.
[108]
Available at
http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf.
[109]
For further discussion on the
Code of Conduct for Mediators see Chapters 3 and 11, below.
[110]
The Directive is available in
the Official Journal of the European Union L 136/3 (May 2008). It is available
at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:136:0003:0008:EN:PDF.
For a further discussion on the Directive see Chapter 3, below.
[111]
OECD Recommendation on
Consumer Dispute Resolution and Redress This Recommendation was developed by
the OECD Committee on Consumer Policy (CCP). Work on its principles was
initiated in late 2005. The Recommendation was adopted by the OECD Council on
12 July 2007. It is available at
http://www.oecd.org/dataoecd/43/50/38960101.pdf. See Chapter 8, below.
[112]
See Fiadjoe Alternative
Dispute Resolution: A Developing World Perspective (Cavendish 2004)
at 10.
[113]
Speech by Sir Anthony Clarke,
Master of the Rolls “The Future of Mediation” at the Second Civil
Mediation Council National Conference Birmingham, May 2008. Available at
http://www.judiciary.gov.uk/docs/speeches/mr_mediation_conference_may08.pdf.
[114]
Fiadjoe Alternative Dispute
Resolution: A Developing World Perspective (Cavendish 2004) at 1.
[115]
Civil justice 2000: A
vision of the Civil Justice System in the Information Age (Ministry of
Justice November 2001) at 2.11. Available at
http://www.dca.gov.uk/consult/meta/cj2000fr.htm.
[116]
The Labour Relations
Commission’s website describes conciliation as a voluntary mediation process.
See www.lrc.ie.
[117]
S.I. No. 2 of 2004,
which inserted Order 63A into Rules of the Superior Courts 1986 (S.I. No. 15 of
1986).
[118]
S.I. No. 130 of 2005
which inserted Order 63B Rule into Rules of the Superior Courts 1986 (S.I. No.
15 of 1986).
[119]
See Singer The EU
Mediation Atlas (LexisNexis 2004) at 73.
[120]
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.
[121]
The Hon. Daryl Williams,
Federal Attorney General VCAT Mediation Newsletter No. 6, November 2002.
[122]
Ibid.
[123]
Applebey “What is
Alternative Dispute Resolution?” (1991-1992) 15 Holdsworth Law Review
20 at 32.
[124]
Astor & Chinkin Dispute
Resolution in Australia (2nd ed Butterworths, 2002) at 77.
[125]
Ibid.
[126]
See Field “Alternative
Dispute Resolution in Victoria: Supply-Side Research Project” (Research
Report for Consumer Affairs Victoria, February 2007) at 19. Available at
www.consumer.vic.gov.au.
[127]
Street, ADR Terminology
Responses to NADRAC Discussion Paper (National Alternative Dispute
Resolution Advisory Council, 24 June 2005).
[128]
Shone “Law Reform and ADR:
Pulling Strands in the Civil Justice Web”. Paper presented at the
Australasian Law Reform Agencies Conference Wellington, New Zealand April
13-16, 2004 at 9.
[129]
Fiadjoe Alternative Dispute
Resolution: A Developing World Perspective (Cavendish 2004) at 21.
[130]
S.I. No. 1 of 1992.
[131]
See Chapter 4 and Chapter 8,
below.
[132]
Fisher & Ury Getting to
Yes: Negotiating Agreement Without Giving In (2nd ed Penguin
Books 1991) at xvii.
[133]
Barrett A History of
Alternative Dispute Resolution (Jossey-Bass San Francisco 2004) at 205.
[134]
See Fisher & Ury Getting
to Yes: Negotiating Agreement Without Giving In (2nd ed Penguin
Books 1991).
[135]
Ibid.
[136]
Ibid.
[137]
Ibid. at 108
[138]
Clay et al “Creating Long-Term
Success Through Expanded Partnering” (Feb-Apr 2004) 59 Dispute Resolution Journal
42 at 47.
[139]
Skeggs “Project Partnering in
the International Construction Industry” (2003) 20 International
Construction Law Review 456. Available at www1.fidic.org.
[140]
See Latham Constructing the
team The Latham report: Final report of the government/industry review of
procurement and contractual arrangements in the UK construction industry
(Department of the Environment, July 1994). For an example of an international
partnering success see Carlisle “MTRC - Tseung Kwan O Extension : Case Study”
available at www.johncarlislesea.com.
[141]
See Chapter 4, below 4.74.
[142]
Recommended Mediation
Clause Arbitration and Mediation Law Society Committee. Available at
www.lawsociety.ie.
[143]
Guide to Drafting
International Dispute Resolution Clauses International Centre for Dispute
Resolution. Available at www.adr.org.
[144]
Royal Institute of the
Architects of Ireland Articles of Agreements (2002 edition).
[145]
Clause 38 (a) of the Royal
Institute of the Architects of Ireland’s Articles of Agreement. (2002 Edition).
[146]
For more information on the
enforceability of ADR clauses see Chapter 7, below.
[147]
See Stitt Mediation: A
Practical Guide (Cavendish, 2004); and Boulle Mediation: principles,
process, practice (Butterworths, 2001).
[148]
Diagram below taken from the
ACC Europe Annual Conference: The Growing Role of In-house Counsel: Lawyers as
Business Partners, June 2007 Munich Germany.
[149]
See Liebmann Community and
Neighbourhood Mediation (Cavendish Publishing Ltd. 1998) at 59.
[150]
See Bush & Folger The
Promise of Mediation: Responding to Conflict Through Empowerment and
Recognition (Jossey-Bass 1994).
[151]
See Irving and Benjamin Therapeutic
Family Mediation: Helping Families Resolve Conflict (Sage Publications,
2002); Ericksonhttp://heinonline.org/HOL/LuceneSearch?specialcollection=&terms=creator%3A%22Erickson,%20Beth%20M.%22&yearlo=&yearhi=&subject=ANY&journal=ALL&sortby=relevance&collection=journals&searchtype=advanced&submit=Search
“Therapeutic Mediation: A Saner Way of Disputing” (1997) 14. J. Am. Matrimonial
Law 223; and Paquin and Harvey “Therapeutic Jurisprudence, Transformative
Mediation and Narrative Mediation: A Natural Connection” (2001) 3 Fla Coastal L
J 167.
[152]
See Alfini “Evaluative versus
Facilitative Mediation: A Discussion” (1996) 24 Fla St U L Rev 919; Levin
“Propriety of Evaluative Mediation: Concerns about the Nature and Quality of an
Evaluative Opinion” (2000) 16 Ohio St J Disp Resol 267; and Stark “Ethics of
Mediation Evaluation: Some Troublesome Questions and Tentative Proposals, from
an Evaluative Lawyer Mediator” (1997) 38 S Tex L Rev 769.
[153]
See the Northside Community
Law Centre website for more information on their community mediation service at
www.nclc.ie. See Chapter 9, below.
[154]
In collaborative lawyering,
the Commission notes that there is no neutral and independent third party
present during the process. However, the solicitors in the process play an
advisory role in assisting the clients in reaching a mutually acceptable
negotiated agreement.
[155]
See Chapter 4, below.
[156]
See Chapter 7, below.
[157]
UNCITRAL Model Law on
International Commercial Conciliation with Guide to Enactment and Use 2002
(United Nations 2002). Available at www.uncitral.org.
See also Dobbins “UNCITRAL Model Law on International Commercial Conciliation:
From a Topic of Possible Discussion to Approval by the General Assembly” (2002)
3 Pepp Disp Resol L J 529.
[158]
Horgan “Let’s Work Together”
(June 2005) Law Society Gazette at 24.
[159]
Walls “Collaborative law a new
and better way” Sunday
Business Post 25 March, 2007.
[160]
Horgan “Let’s Work Together”
(June 2005) Law Society Gazette at 25. See chapter 7 for more
information on the collaborative law process. See Chapter 5 below for further
information on collaborative lawyering.
[161]
See Stewart Arbitration:
commentary and sources (FirstLaw 2003).
[162]
See the Chartered Institute of
Arbitrators, Irish Branch website www.arbitration.ie.
[163]
See The International
Institute for Conflict Prevention & Resolution “ADR Glossary” 2005 at
www.cpradr.org; and Carey “Baseball” arbitration” (2004) 11(6) CLP 138.
[164]
See The International
Institute for Conflict Prevention & Resolution “ADR Glossary” 2005 at
www.cpradr.org.
[165]
Ibid.
[166]
See Arbitration Defined 2003
JAMS. Available at www.jamsadr.com.
[167]
See IDA Ltd v University of
Southampton [2006] EWCA Civ 145.; Elliot “Med/Arb:
Fraught with Danger or Ripe with Opportunity” (1996) 34 Alta L Rev 163; and
Landry “Med-Arb: Mediation with a Bite and an Effective ADR Model” (1996) 63
Def Counsel J 263.
[168]
Zack “Quest for Finality in
Airline Disputes: A Case for Arb-Med” (Jan 2004) 58 The Dispute Resolution Journal
at 34-38.
[169]
Limbury “Med-Arb, Arb-Med,
Neg-Arb and ODR”. A paper presented to the New South Wales Chapter of The
Institute of Arbitrators and Mediators Australia (Sydney, August 3rd 2005).
[170]
Ibid.
[171]
For further discussion on the
PRTB see Chapter 9.
[172]
See www.financialombudsman.ie.
[173]
Bord Gáis Eireann “Approved
Dispute Resolution Legal Drafting” Section 6.3.2. Available at
www.bordgais.ie.
[174]
Carey “Expert determination –
Some Practical Issues” (2004) 2 Journal of Civil Practice and Procedure 1
at 9.
[175]
For a summary on the
differences between arbitration and expert determination see Dowling-Hussey
“The Irish Law of Arbitration: An Overview Part1” (2007) 25 ILT 137.
[176]
Carey “Expert determination –
Some Practical Issues” (2004) 2 Journal of Civil Practice and Procedure 1
at 14. See also Carey “Expert Determination—An Alternative Basis For Challenge”
(2004) 22 ILT 25 and Kendall Expert Determination (3rd ed
Sweet and Maxwell, 2001).
[177]
In O'Mahony
v Patrick Connor Builders Ltd. [2005] IEHC 248 Clarke J held that where
parties agreed to be bound by the report of an expert, such report could not be
challenged on the ground that mistakes had been made in its preparation, unless
it could be shown that the expert had departed from the instructions given to
him in a material respect or had acted in bad faith.
[178]
See Chapter 1, above.
[179]
See Law Reform Commission Report
on Multi-Party Litigation (LRC 76-2005).
[180]
Annual Report of the
Ombudsman 2002 Chapter 4. (Office of the Ombudsman, 2003) Available at
www.ombudsman.gov.ie.
[181]
Environmental Protection Act 1992.
See www.epa.ie.
[182]
Safety Health and Welfare
Act 2005. See www.hsa.ie.
[183]
See Financial Regulator
website at www.ifsra.ie.
[184]
See the Commission for Energy
Regulation at www.cer.ie.
[185]
See the Commission for
Aviation Regulation at www.aviationreg.ie.
[186]
See the Commission for
Communications Regulation at www.comreg.ie.
[187]
Law Reform Commission Report
on Multi-Party Litigation (LRC 76-2005) at 7.
[188]
Annual Report of the
Ombudsman 2007 at 5 (Office of the Ombudsman, 2008). Available at www.ombudsman.gov.ie.
[189]
See www.ombudsman.gov.ie.
[190]
Ibid.
[191]
Address by Joe Meade,
Financial Services Ombudsman, on 14 June 2005 to the Institute of Bankers in
Ireland and the Irish Bankers Federation seminar on complaints handling.
Available at www.financialombudsman.ie.
[192]
Section 57BK (1) of the Central
Bank Act, 1942, as inserted by section 16 of the Central Bank and
Financial Services Authority of Ireland Act 2004.
[193]
Section 57CA (2) of the Central
Bank Act, 1942, as inserted by section 16 of the Central Bank and
Financial Services Authority of Ireland Act 2004.
[194]
Section 57CA (3) of the Central
Bank Act, 1942, as inserted by section 16 of the Central Bank and
Financial Services Authority of Ireland Act 2004.
[195]
Section 57CI (4) of the Central
Bank Act, 1942, as inserted by section 16 of the Central Bank and
Financial Services Authority of Ireland Act 2004.
[196]
Section 57CF (1) of the Central
Bank Act, 1942, as inserted by section 16 of the Central Bank and Financial
Services Authority of Ireland Act 2004.
[197]
Section 57CH of the Central
Bank Act, 1942, as inserted by section 16 of the Central Bank and
Financial Services Authority of Ireland Act 2004.
[198]
Annual Report of Financial
Ombudsman 2007 at 16 (Government Publications 2008).
[199]
Annual Report of Financial
Ombudsman 2005 (Government Publications 2006).
[200]
Annual Report of Financial
Ombudsman 2007 at 20 (Government Publications 2008).
[201]
Available at www.financialombudsman.ie.
[202]
See Chapter 8 below for
information on FIN-NET and the Financial Services Ombudsman.
[203]
See Office of the Pensions
Ombudsman at www.pensionsombudsman.ie.
[204]
SI No. 397 of 2003.
[205]
Disputes Resolution
Procedures - Guidance notes for Trustees and Administrators (Office
of the Pensions Ombudsman, 2003) at 3. Available at www.pensionsombudsman.ie
[206]
“Pensions Ombudsman Loses Patience – Civil and
Criminal Prosecutions Initiated for Non-Compliance with Requests for Documentation”, Press Release May 2008. Available
at www.pensionsombudsman.ie.
[207]
Annual Report of the
Pensions Ombudsman 2006 (Office of the Pensions Ombudsman, 2007) at
9.
[208]
Ibid.
[209]
Pensions Ombudsman Reports
Significant Increase in Case Activity in 2007 Press Release, March 2008.
Available at www.pensionsombudsman.ie.
[210]
Annual Report of the
Ombudsman for Children Office 2007 at 20. Available at www.oco.ie.
[211]
Annual Report of the
Ombudsman for Children’s Office 2005 –2006 at 17. Available at www.oco.ie.
[212]
See the Ombudsman for the
Defence Forces website at www.odf.ie.
[213]
Section 4(2) of the 2004 Act.
[214]
Section 7 of the 2004 Act.
[215] Annual Report
of the Ombudsman for the Defence Forces 2007. (Ombudsman for the Defence
Forces, 2008). Available at
http://www.odf.ie/publications/ODFAnnualReport2007EN.pdf.
[216]
Section 90(3) of the 2005 Act.
[217]
Section 90(5) of the 2005 Act.
[218]
Guidelines on Informal Resolution
& Mediation (Garda Síochána Ombudsman Commission, April 2007) at 8.
These guidelines were issued under section 90(1) of the 2005 Act.
[219]
Bill Number 43 of 2006.
[220]
Bill Number 20 of 2008.
[221]
Section 9 of 2008 Bill.
[222]
Coulter “Ombudsman will oversee complaints against lawyers” The Irish Times
March 25th 2008 at 1.
[223]
The European Ombudsman Annual Report 2007 (European Communities,
2008) at 1. Available at www.ombudsman.europa.eu.
[224]
The European Ombudsman Annual
Report 2007 (European Communities, 2008) at 2. Available at
www.ombudsman.europa.eu.
[225]
Ibid. at 9.
[226]
Ibid.
[227]
See Chapter 8, below at 8.55.
[228]
See Make Consumers Count - A new Direction for Irish Consumers (Consumer
Strategy Group, Forfas, April 2005).
[229]
See Kakalik An Evaluation of Mediation and Early Neutral Evaluation Under
the Civil Justice Reform Act (RAND Corporation, 1996).
[230]
Conner “Primer for Participants in
Early Neutral Evaluation” (1999) 70 Oklahoma Bar Journal 38.
[231]
For a more detailed discussion on
the role of early neutral evaluation in the English Courts see Chapter 7, below
7.43.
[232]
See Alberta Law Reform Institute Research Paper on Dispute Resolution: A
Directory of Methods, Projects and Resources’ No. 19 July 1990 at 26;
Alberta Law Reform Institute Discussion Paper on Civil Litigation: The
Judicial Mini-Trial (1993);and Henderson “Avoiding Litigation with the
Mini-Trial: The Corporate Bottom Line As Dispute Resolution” (1995) S C L Rev
237.
[233]
For more information on the court
settlement process see
www.hmcourts-service.gov.uk/docs/tcc_court_settlement_process.pdf.
[234]
See also the presentation of Gough
“The New TCC Guide ADR, Adjudication, Arbitration and the new TCC mediation
initiative” (May 2006). Available at
http://www.39essex.co.uk/documents/KGO_TCC_Guide_ADR_May_2006.pdf.
[235]
See Parness “Improving Judicial
Settlement Conferences” (2006) 39 U C Davis L Rev 1891; and Hogan “Judicial
Settlement Conferences: Expowering the Parties to Decide Through Negotiation”
(1991) 27 Willamette L Rev 429.
[236]
Alexander Global
Trends in Mediation (2nd ed Kluwer Law 2006) at 8.
[237]
Recital 3 of the of the
Directive 2008/52/EC of the European Parliament and of the Council on Certain
Aspects of Mediation in Civil and Commercial Matters states that “...the
establishment of basic principles in this area is an essential step towards
enabling the appropriate development and operation of extrajudicial procedures
for the settlement of disputes in civil and commercial matters so as to
simplify and improve access to justice.”
[238]
See also section 90(3)
of the Garda Síochána Act 2005.
[239]
Response to Policy
Consultation Paper on Alternative Dispute Resolution by Advice Services
Alliance (Scottish Consumer Council, August 2003) at 7. Available at www.scotconsumer.org.uk.
[240]
Aylmer “Commercial
Mediation in Ireland-An Opportunity for Progress?” 20th February
2007. Online article available at www.efc.ie.
[241]
Ibid.
[242]
Cornes “Commercial
Mediation: the Impact of the Courts” (2007) 73 Arbitration 12-19.
[243]
Genn “Solving Civil
Justice Problems What might be best?” Paper presented at Scottish Consumer
Council Seminar on Civil Justice, January 19th 2005. Available at
www.scotconsumer.org.uk.
[244]
Cornes “Commercial
Mediation: the Impact of the Courts” (2007) 73 Arbitration 12-19.
[245]
de Roo & Jagtenberg Comparative
European research on court – encouraged mediation. Paper presented at the
International Expert Meeting on Mediation. (The Hague, June 2006) at 3-4.
[246]
Section 15(1) of the 2004 Act.
[247]
Goldschmid “Discussion
Paper : Major Themes of Civil Justice Reform” Prepared for the Civil
Justice Reform Working Group January, 2006. Available at
http://www.bcjusticereview.org/working_groups/civil_justice/cjrwg_paper_01_18_06.pdf.
[248]
Zutter “Incorporating ADR in
Canadian Civil Litigation” (2001) 13 Bond Law Review 2.
[249]
BC Reg 127/98.
[250]
“Dispute Resolution Office
Bulletin” (Ministry of Attorney General of British Columbia, June 2002).
Available at www.ag.gov.bc.ca/dro.
[251]
Ibid.
[252]
“Dispute Resolution Office
Bulletin” (Ministry of Attorney General of British Columbia, June 2002).
Available at www.ag.gov.bc.ca/dro.
[253]
Focus Consultants “An
Evaluation of the Notice to Mediate Regulation in the Insurance (Motor Vehicle)
Act” (Ministry of Attorney General Office June 1999) at 1. See http://www.ag.gov.bc.ca/dro/publications/reports/motor-vehicles.pdf.
[254]
Notice to Mediate (Residential
Construction) 1999 BC Reg 152/99.
[255]
Notice to Mediate (General)
Regulation 2001 BC Reg 4/2001.
[256]
Notice to Mediate (Family)
Regulation 2007 BC Reg 296/2007.
[257]
See the Nanaimo Family Justice
Services Centre website at www.nanaimo.familyjustice.bc.ca.
[258]
See Zutter “Incorporating ADR
in Canadian Civil Litigation” (2001) 13 Bond L Rev 2.
[259]
A similar scheme operates in
the Construction and Arbitration List of the High Court of Hong Kong whereby
one party may compelled other parties to mediation by issuing a “Mediation
Notice”. For more information on the scheme see Tay “Pilot Scheme for Voluntary
Mediation - High Court of Hong Kong” (31 January 2007). Online article
available at
http://www.rics.org/Practiceareas/Management/Disputes/etay001.html.
[260]
See Chapter 11, below.
[261]
2006 No. 4266P. See Chapter 9,
below.
[262]
Now the Ministry of Justice.
[263]
See Prince Court-based
Mediation: A preliminary analysis of the small claims mediation scheme at
Exeter County Court (Civil Justice Council, March 2004); Enterkin and
Sefton An evaluation of the Exeter small claims mediation scheme
(Department of Constitutional Affairs Research Series, December 2006); Prince
and Belcher An Evaluation of the Effectiveness of Court-based Mediation
Processes in Non-Family Civil Proceedings at Exeter and Guildford County Courts
(Department of Constitutional Affairs Research Series, December 2006);
Prince “Institutionalising mediation? An evaluation of the Exeter Court small
claims mediation pilot” (2007) 5 Web Journal of Current Legal Issues,
available at http://webjcli.ncl.ac.uk/2007/issue5/prince5.html.
[264]
See Doyle Evaluation of the
Small Claims Mediation Service at Manchester County Court (Department of
Constitutional Affairs, December 2006), available at http://www.dca.gov.uk.
[265]
Ibid.
[266]
Rustidge Small Claims
Mediation Service at Manchester County Court and roll out to all HMCS areas in
England and Wales and 2007 / 2008. Paper presented to the European
Commission for the Efficacy of Justice (26th June 2007). Available
at http://www.coe.int/.
[267]
Doyle Evaluation of the
Small Claims Mediation Service at Manchester County Court (Department of
Constitutional Affairs, December 2006) at 22. Available at
http://www.dca.gov.uk.
[268]
Ibid. at 23.
[269]
Ibid.
[270]
Doyle Evaluation of the
Small Claims Mediation Service at Manchester County Court (Department of
Constitutional Affairs, December 2006) at 22. Available at
http://www.dca.gov.uk
[271]
Response to Policy
Consultation Paper on Alternative Dispute Resolution by Advice Services
Alliance (Scottish Consumer Council August 2003) at 6. Available at
http://www.scotconsumer.org.uk/
[272]
Samuel Supporting Court
Users: The In-Court Advice and Mediation Projects in Edinburgh Sheriff Court,
Research Phase 2 (Edinburgh: The Stationery Office, 2002). Available
at http://www.scotland.gov.uk/cru/kd01/purple/scu2.pdf.
[273]
Ibid.
[274]
Samuel Supporting Court Users:
The In-Court Advice and Mediation Projects in Edinburgh Sheriff Court, Research
Phase 2 (Edinburgh: The Stationery Office, 2002). Available at
http://www.scotland.gov.uk/cru/kd01/purple/scu2.pdf.
[275]
Ibid.
[276]
See Mantle “Overview of the Sheriff Court
Mediation Scheme in Edinburgh” (2007). Online article available at http://www.mediationworld.net/ukscotland/schemes/full/13.html
[277]
Ibid.
[278]
Ibid.
[279]
See Mantle “Overview of the Sheriff Court
Mediation Scheme in Edinburgh” (2007). Online article available at http://www.mediationworld.net/ukscotland/schemes/full/13.html.
[280]
Scottish Civil Courts
Review: A Consultation Paper (Scottish Civil Courts Review, November 2007)
at 13. Available at http://www.scotcourts.gov.uk/.
[281]
De La Campa & Rozdeiczer Alternative
Dispute Resolution Manual: Implementing Commercial Mediation (The World
Bank Group, November 2006). Available at http://rru.worldbank.org/Documents/Toolkits/adr/adr_appendices.pdf.
[282]
See Combrink-Kuiters,
Niemeijer, Voert, Ruimte voor Mediation (Space for Mediation), Justice
Research and Documentation Center (Ministry for Justice 2003).
[283]
See Niemeijer Court- Based
Mediation in the Netherlands Research, Evaluation, and Future Expectations .Paper
presented at the annual meeting of the The Law and Society Association,
Renaissance Hotel, Chicago, Illinois, May 27, 2004.
[284]
Ibid.
[285]
Ibid.
[286]
De La Campa & Rozdeiczer Alternative
Dispute Resolution Manual: Implementing Commercial Mediation (The World
Bank Group, November 2006) . Available at
http://rru.worldbank.org/Documents/Toolkits/adr/adr_appendices.pdf.
[287]
See Niemeijer Court- Based
Mediation in the Netherlands Research, Evaluation, and Future Expectations.Paper
presented at the annual meeting of the Law and Society Association, Chicago,
Illinois, May 27, 2004 at 2. Available at
http://english.justitie.nl/images/Court%20Based%20Mediation%20in%20the%20Netherlands-Pel%20and%20Niemeijer%E2%80%A6_tcm75-114368_tcm35-17280.pdf.
[288]
Judge Reiling ADR in the
Netherlands—Private and Court-Annexed Mediation Paper presented on the
conference organized by the Institute for the Study and Development of Legal
Systems (ISDLS, 2005). Available at
http://rru.worldbank.org/Documents/Toolkits/adr/adr_appendices.pdf.
[289]
Marinko The Crystal Scales
of Justice – The European Prize for Good Practice in Civil Justice Organisation
and Procedure – Slovenian Entry (European Commission, 2005) at 4. Available
at
http://ec.europa.eu/civiljustice/docs/ecjd_2005/news_jejc_finalist_slovenia.pdf.
[290]
Ibid. at 5.
[291]
Ibid. at 6.
[292]
Zalar Court-Annexed Programmes of
Alternative Dispute Resolution Presentation given by the Vice – President
of the Slovenian Association of Judges In Slovenia, April 2007. Available at http://www.gemme.eu/spip.php?rubrique309.
[293]
Prince Mandatory Mediation:
The Ontario Experience (2007) 26 CJQ 2007 79.
[294]
Civil Justice Review,
Supplemental and Final Report, (The Queen’s Printer, Toronto, 1996) at 1.1.
[295]
Ibid., at 13.5.
[296]
Courts of Justice Act RSO
1990 c.43. available at http://www.canlii.org/on/laws/sta/c-43/ .
[297]
Civil Justice Review,
Supplemental and Final Report , (The Queen’s Printer, Toronto, 1996) at 5.2
(5). Rule 24.1 establishes that parties could only opt-out for reasons which
had to be agreed with the Judge or Case Management Master.
[298]
The relevant rule requires
both parties and their lawyers to attend at least one mediation session which
as noted above, must occur within 90 of the delivery of the defence delivered.
[299]
Ontario mandatory mediation
pilot a success, The Lawyers Weekly, March 10, 2000.
[300]
Report of the Case
Management Implementation Review Committee, (Ontario Superior Court of
Justice, 2004).
[301]
Short “Recent Mediation
Matters in Ontario” (2004) 2 Canadian Arbitration and Mediation Journal 13
at 18.
[302]
(2004) 71 O.R. (3d) 97 which
reserves early mandatory mediation for wrongful dismissal and simplified
procedures cases, issued by Regional Senior Chief Justice Warren Winkler of the
Toronto Superior Court.
[303]
Alexander et al “Mediation in
Germany: The Long & Winding Road” in Alexander Global Trends in
Mediation (2nd ed Kluwer Law 2006) at 233.
[304]
Funken “Management:
Court-connected Mediation in Japan and Germany” (2002) German Law Journal
No. 2 at 233. Online article available at
http://www.germanlawjournal.com/article.php?id=130
[305]
Alexander et al “Mediation in
Germany: The Long & Winding Road” in Alexander Global Trends in
Mediation (2nd ed Kluwer Law 2006) at 233.
[306]
Part 4 of the Civil
Procedure Act 2005. See also Practice Note No. SC Gen 6 Supreme Court –
Mediation.
[307]
Part 4 of the Civil
Procedure Act 2005.
[308]
[2001] NSWSC 209 (28 March
2001).
[309]
[2001] NSWSC 1208 (14 December
2001).
[310]
See Genn Twisting arms:
court referred and court linked mediation under judicial pressure,
(Ministry of Justice Research Series 1/07, May 2007).
[311]
Practice Direction to CPR part
26, s. 2 states cases are to be selected from those that would not normally
belong on the small claims track, and do not involve minors, patients or those
who are exempt from court fees.
[312]
Practice Direction to CPR part
26, s. 3.1 (2)
[313]
A practice direction was
issued to support the quasi-compulsory nature of the scheme supplementing CPR,
Part 26.
[314]
Genn Twisting arms: court
referred and court linked mediation under judicial pressure, (Ministry of
Justice Research Series 1/07, May 2007) at 150.
[317]
Genn Twisting arms: court
referred and court linked mediation under judicial pressure, (Ministry of
Justice Research Series 1/07, May 2007) at 150.
[318]
Table from Genn Twisting
arms: court referred and court linked mediation under judicial pressure,
(Ministry of Justice Research Series 1/07, May 2007) at 135.
[319]
Genn Twisting arms: court
referred and court linked mediation under judicial pressure, (Ministry of
Justice Research Series 1/07, May 2007) at 134.
[320]
Ibid. at 151.
[321]
Diagram from Genn Twisting
arms: court referred and court linked mediation under judicial pressure,
(Ministry of Justice Research Series 1/07, May 2007) at 144.
[322]
Ibid. at 148.
[323]
See Webley, Abrams and
Bacquet, Evaluation of the Birmingham Court-Based Civil (Non- Family)
Mediation Scheme (Department for Constitutional Affairs, September 2006),
available at
http://www.dca.gov.uk/civil/adr/fast-track-mediation-birmingham.pdf.
[324]
See Prince & Belcher An Evaluation
of the Effectiveness of Court-based Mediation Processes in Non-Family Civil
Proceedings at Exeter and Guildford County Courts (Department for
Constitutional Affairs, September 2006), available at
http://www.dca.gov.uk/civil/adr/fast-track-mediation-guildford-exeter.pdf.
[325]
See Genn Twisting arms:
court referred and court linked mediation under judicial pressure,
(Ministry of Justice Research Series 1/07, May 2007).
[326]
Ibid. at 151.
[327]
Ibid. at 149.
[328]
See Genn Twisting arms:
court referred and court linked mediation under judicial pressure (Ministry
of Justice Research Series 1/07, May 2007) at ii.
[329]
Ibid. at 197.
[330]
See Genn Twisting arms:
court referred and court linked mediation under judicial pressure (Ministry
of Justice Research Series 1/07, May 2007).
[331]
Ibid. at 73.
[332]
The Third Mediation Audit
(Centre for Effective Dispute Resolution, November 2007) at 9. Available
at www.cedr.co.uk.
[333]
Genn Twisting arms: court
referred and court linked mediation under judicial pressure, (Ministry of
Justice Research Series 1/07, May 2007) at 199.
[334]
Ibid. at iv.
[335]
Ibid. at 79.
[336]
Genn Twisting arms: court
referred and court linked mediation under judicial pressure (Ministry of
Justice Research Series 1/07, May 2007) at 131.
[337]
Zalar Towards Primary Dispute
Resolution System: Global Trends in Civil and Family Mediation – An Overview of
best practices in Europe (2007). Available at
http://cameraarbitrale.odc.mi.it/allegati/utenti/Zalar1.pdf.
[338]
For further discussion on providing
parties with information on ADR see Chapter 5 below.
[339]
For further discussion on the issue
of cost sanctions see Chapter 11 below.
[340]
The Final Report on Civil Justice
Reform (Civil Justice Reform Judiciary of Hong Kong, 2004) at 438.
Available at http://www.civiljustice.gov.hk/.
[341]
Green Paper on alternative
dispute resolution in civil and commercial matters COM/2002/0196 Final at
29. Available at http://eurlex.europa.eu/.
[342]
Allen “Peering behind the veil of
mediation confidentiality, a new judicial move in Malmesbury v Strutt and
Parker” (April 2008). Online article available at www.cedr.co.uk
[343]
Green Paper on alternative
dispute resolution in civil and commercial matters COM/2002/0196 Final.
Available at http://eurlex.europa.eu/.
[344]
Seanad Debate Vol 175 No 21 (11th
March 2004).
[345]
See further Chapter 11, below.
[346]
Reichert “Confidentiality in
International Mediation” (2004-2005) 59 Dispute Resolution Journal 4 at
60.
[347]
Clause 1.5 of the Family Mediation
Service Agreement.
[348]
See Carey “Without Prejudice
Privilege” and “Unambiguous Impropriety” (2004) 22 ILT 122.
[349]
Rush & Thompkins v Greater
London Council [1989] AC 1280 at 1299 (per Lord Griffiths).
[350]
[1995] 3 I.R. 520 at 525.
[351]
Ibid. at 525. Keane J quoting
Oliver J in Cutts v Oliver [1984] Ch 290.
[352]
[1984] Ch 290 at 306.
[353]
Rolfe J, 18 March 1992, unreported.
[355]
[2000] FSR 344, [2000] 1 WLR 2436, [2001] 1 All ER 783.
[356]
10 November 1992, Court of Appeal of
England and Wales, unreported.
[357]
Carey “Without Prejudice Privilege”
and “Unambiguous Impropriety” (2004) 22 ILT 122.
[358]
[2005] EWHC 1227 (Ch).
[359]
Tomlin v Standard Telephones
& Cables [1969] 3 All ER 201. As discussed in Allen “Does
mediation need further privilege? Thoughts on two recent cases” 157 NLJ 1342.
Available at www.cedr.co.uk.
[361]
“Mediation: No such thing as
mediation privilege yet” (April 2007) Herbert Smith Litigation E-Bulletin.
Available at www.herbertsmith.com
[362]
See McDowall v Hirschfield Lipson
& Rumney [1992] LAWTEL 1603200.
[363]
See Bath & N.E.Somerset DC v
Nicholson (2002) 10 EG 156 (CS).
[364]
See Cnitrow Ltd v Cape plc [2000] 3 All.E.R. 763 CA.
[365]
See Bradford & Bingley plc v
Mohammed Rashid [2005] EWCA Civ 1080.
[366]
See Waldridge v Kennison
(1794) 170 ER 306 .
[368]
See Somatra Ltd v Sinclair Roche
& Temperley [2002] EWHC Com 1627.
[369]
Ibid.
[370]
[2007] EWHC 1774 (Ch), [2007] All ER (D) 492
(Jul).
[371]
[2005] EWHC 3110 (Ch).
[372]
[1889] 23 QBD 335
[373]
[1992] 1 IR. 166.
[375]
Reed Executive plc v Reed
Business Information Ltd [2004] EWCA Civ 159. at para 35.
[376]
[2001] 2 IRLM 174.
[377]
Ibid at 181.
[378]
[1945] IR 515.
[379]
Wigmore Anglo-American System of
Evidence (3rd ed. Vol. viii Boston 1940) at paras 2380-91.
[380]
Healy Irish Laws of Evidence (Round
Hall 2004) at 396.
[381]
Cook v Carroll [1945] IR 515.
[382]
ER v JR [1981] 1 IR 125.
[383]
Mediators Institute of Ireland Code
of Ethics at 4.3.
[385]
Brown and Marriott ADR Principles
& Practice (Sweet & Maxwell, London, 1999), paras 22-079 to 22-097.
[386]
Per Bingham MR in Re D [Minors]
[1993] 2 All ER 693.
[387]
Green Paper on Alternative
Dispute Resolution in Civil and Commercial Matters COM/2002/0196 Final at
para. 82. Available at http://eurlex.europa.eu/.
[388]
Section 4(b)(2). This follows a line of cases, the most notable of which
was NLRB v Macaluso 618 F. 2d 51 (9th Cir. 1980), which stated that
the public interest in maintaining the perceived and actual impartiality of
mediators outweighs the benefits derivable from a given mediator’s testimony.
[390]
See Johnson “Confidentiality in
Mediation: What can Florida Glean from the Uniform Mediation Act?” (2003) 30 Florida
State University 487.
[391]
Rule 6(2) of the 2004 Rules.
[392]
Law Reform Commission Consultation
Paper on the Family Courts (LRC CP March 1994) at 56.
[393]
Law Reform Commission Report on
Family Courts (LRC 52-1996) at 99.
[394]
“Alternative Dispute Resolution:
An English Viewpoint”. Speech presented by Lord Phillips of Worth Matravers
at the International Centre for Alternative Dispute Resolution, India, March
2008. Available at www.judiciary.gov.uk/docs/speeches/lcj_adr_india_290308.pdf.
[395]
See Cohen “Convening for Enhanced
Self-Determination and Access to the Process” (2003) 18 The Texas Mediator
2.
[396]
Bush “Substituting Mediation for
Arbitration: The Growing Market for Evaluative Mediation, and What it Means for
the ADR Field” (2002) 3 Pepp Disp Resol L 111 at 115.
[397]
Morley “Reconciling the value of
self-determination with more interventionist models of family law mediations”.
Online article available at www.janemorley.com.
[398]
Welsh “The Thinning Vision of
Self-Determination in Court-Connected Mediation: The Inevitable Price of
Institutionalization?” (2000) 6 Harv Negot L Rev 1 at 8.
[399]
Nolan-Haley “Informed Consent in
Mediation: A Guiding Principle for Truly Educated Decisionmaking” (1999) 74
Notre Dame L Rev 775 at 789.
[400]
Response to Policy Consultation
Paper on Alternative Dispute Resolution by Advice Services Alliance
(Scottish Consumer Council, August 2003) at 7. Available at
www.scotconsumer.org.uk.
[401]
See Nolan-Haley “Informed Consent in
Mediation: A Guiding Principle for Truly Educated Decisionmaking” (1999) 74
Notre Dame L Rev 775; and Aylmer “Commercial Mediation in Ireland - An
Opportunity for Progress?” 20th February 2007. Online article available at
www.efc.ie.
[402]
Commission Recommendation of 4 April
2001 on the principles for out-of-court bodies involved in the consensual
resolution of consumer disputes (2001/310/EC).
[403]
Green Paper on alternative
dispute resolution in civil and commercial matters COM/2002/0196 Final.
Available at http://eurlex.europa.eu/.
[404]
McDowell, Joint Committee on
Justice, Equality, Defence and Women’s Rights Parliamentary Debates Vol No 91,
1 June 2005.
[405]
Lord Woolf Access to Justice,
Interim Report (1995) at Chapter 4 para 7(3) at.20.
[406]
South African Law Commission on Alternative
Dispute Resolution (Issues Paper No. 8, Project 94, 1997). Available at
http://www.saflii.org/za/other/zalc/ip/8/8-CHAPTER-2.html
[407]
Ibid.
[408]
CEDR UK “Conflict is costing
business £33 billion every year” (26 May 2006). Online article available at
www.cedr.com.
[410]
Genn Twisting arms: court
referred and court linked mediation under judicial pressure, (Ministry of
Justice Research Series 1/07, May 2007) at 177.
[411]
Ibid. at 178.
[412]
U.K. Office of Government Commerce,
52338-SGP-Dispute Guidance (Office of the Government Commerce, 2002). Available
at http://www.ogc.gov.uk/documents/cp0077.pdf.
[413]
Annual Report Monitoring the Effectiveness
of the Government’s Commitment to using ADR 2005/2006 (Department of
Constitutional Affairs 2006).
[414]
[2003] EWHC 1479 Ch.
[415]
See also the Singapore Mediation
Centre’s website http://www.mediation.com.sg/.
[416]
Onn “Non-court annexed mediation in
Singapore”. Paper presented at the international Conference and Showcase on
Judicial Reforms. (Philippines, November 2005) at 6. Available at
http://jrn21.supremecourt.gov.ph/forum_icsjr/ICSJR_Singapore%20(L%20Onn).pdf.
[417]
Ibid.
[418]
Florida Conflict Resolution
Consortium, 2000. See http://consensus.fsu.edu/.
[419]
Report on Legal aid and mediation
for people involved in family breakdown National Audit Office, Legal
Services Commission March 2007). Available at http://www.nao.org.uk/.
[420]
Speech delivered by the Honourable
Warren K. Winkler Chief Justice of Ontario “Access to Justice, Mediation:
Panacea or Pariah?” (2007). Available at http://www.ontariocourts.on.ca/coa/en/ps/speeches/access.htm.
[421]
US Chief Justice Warren Burger: “Our
Vicious Legal Spiral” (1977) 22 Judges Journal 49.
[422]
The Third Mediation Audit (Centre
for Effective Dispute Resolution, November 2007) at . Available at www.cedr.co.uk.
[423]
Ibid.
[424]
Report on Legal aid and mediation
for people involved in family breakdown National Audit Office, Legal
Services Commission March 2007)at 8. Available at http://www.nao.org.uk/.
[425]
Ibid.
[426]
Ibid.
[427]
See Genn Twisting arms: court
referred and court linked mediation under judicial pressure, (Ministry of
Justice Research Series 1/07, May 2007).
[428]
Genn Twisting arms: court
referred and court linked mediation under judicial pressure, (Ministry of
Justice Research Series 1/07, May 2007) at 181.
[429]
Ibid.
[430]
Genn Twisting arms: court
referred and court linked mediation under judicial pressure (Ministry of
Justice Research Series 1/07, May 2007) at 183.
[431]
See Galanter “The Vanishing Trial:
An examination of Trials and Related Matters in Federal and State Courts”
(2004) 1 Journal of Empirical Legal Studies 3.
[432]
McDowell Joint Committee on Justice,
Equality, Defence and Women’s Rights Parliamentary Debates Vol No 91 Wednesday,
1 June 2005.
[433]
See Chapter 1, above.
[434]
Green Paper on alternative
dispute resolution in civil and commercial matters COM/2002/0196 Final.
Available at http://eurlex.europa.eu/.
[435]
New South Wales Law Reform Commission
Report on Community Justice Centres (Report 106 - 2005) at 1.29.
Available at http://www.lawlink.nsw.gov.au/lrc.
[436]
McDowell Joint Committee on Justice,
Equality, Defence and Women’s Rights Parliamentary Debates Vol No 91 Wednesday,
1 June 2005.
[437]
Field “Neutrality and Power: Myths
and Reality” (2000) 3 ADR Bulletin 1 at 16-19.
[438]
Boulle Mediation: Principles,
Process, Practice (Butterworths Sydney 1996) at 19.
[439]
Available at
http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf.
[440]
See Chapter 10, below.
[441]
Commission Recommendation of 4 April 2001 on the principles for out-of-court
bodies involved in the consensual resolution of consumer disputes (2001/310/EC).
[442]
The Directive is available in the
Official Journal of the European Union L 136/3 (May 2008). It is available at
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:136:0003:0008:EN:PDF.
[443]
Article 1(1) of the 2008 Directive.
[444]
Recital 7 of the 2008 Directive.
[445]
Recital 17 of the 2008 Directive.
[446]
Recital 8 of the 2008 Directive.
[447]
Recital 11 of the 2008 Directive.
[448]
See Chapter 4, below.
[449]
Article 3 (a) of the 2008 Directive.
[450]
Article 3 (a) of the 2008 Directive.
[451]
Recital 13 of the 2008 Directive.
[452]
Recital 13 of the 2008 Directive.
[453]
Article 5(2) of the 2008 Directive.
[454]
Recital 23 of the 2008 Directive.
[455]
Article 7 of the 2008 Directive.
[456]
Article 7(2) of the 2008 Directive.
[457]
See O.R.C. § 2710.02 (B).
[458]
See O R.C. § 2710.02 (C).
[459]
See O.R.C. § 2710.04(A).
[460]
See O.R.C. § 2710.05.
[461]
§ 2(2) Reporter’s Notes.
[462]
Recital 13 of the 2008 Directive.
[463]
Recital 6 of the 2008 Directive.
[464]
Recital 17 of the 2008 Directive.
[465]
Recital 17 of the 2008 Directive.
[466]
Article 4(1) of the 2008 Directive.
[467]
Recital 25 of the 2008 Directive.
[468]
Article 4(2) of the 2008 Directive.
[469]
See Thompson “Enforcing Rights
Generated in Court-Connected Mediation - Tension between the Aspirations of a
Private Facilitative Process and the Reality of Public Adversarial Justice”
(2003) 19 Ohio St J on Disp Resol 509.
[470]
Stewart and Moore “Mediation in
Ireland— An improving environment” (2005) 12(5) CLP 115.
[471]
Teague “New Employment
Times and the Changing Dynamics of Conflict Resolution at Work: the Case of
Ireland” (2006) 28 Comp. Lab. L. & Pol'y J. 57 at 65.
[472]
Gibbons “Better
Dispute Resolution. A review of employment dispute resolution in Great.
Britain” (Department of Trade and Industry, March 2007) at 23. Available at
http://www.berr.gov.uk/files/file38516.pdf.
[473]
Chairman of the Labour
Relations Commission, speaking at the Joint Committee on Enterprise, Trade and
Employment, 5 March 2008. Available at http://debates.oireachtas.ie.
[474]
Businesses spend
£277,000 in time and fees on a typical employment dispute (Centre for
Effective Dispute Resolution, December 2006). Available at http://www.cedr.com/index.php?location=/news/archive/20061204_90.htm¶m=releases.
[475]
See Chapter 1, above at
1.07.
[476]
Stewart “Resolution of
Employment Disputes” (2004) 1 IELJ 5 at 136.
[477]
Labour Relations
Commission General Policy. Available at
http://www.lrc.ie/ViewDoc.asp?fn=/documents/aboutus/general_policy.htm&CatID=3&m=a.
[478]
[1994] E.L.R. 27.
[479]
Stewart “Resolution of
Employment Disputes” (2004) 1 IELJ 5 at 136.
[480]
Brown “Dispute Resolution – an
International Perspective”. Paper presented at the Labour Relations Commission
Symposium New Perspectives on Workplace Change, 9TH November
2006, Dublin. Available at www.lrc.ie.
[481]
See Health and Safety
Review, May 2002 and September 2003, referring to a mediation scheme by
Dublin City Council. Available at www.healthandsafetyreview.ie.
[482]
The Industrial Relations Act 1990 Act also
provided for important changes in law relating to industrial action as well as
to the industrial relations mechanisms for dealing with industrial disputes.
The Labour Court had been responsible for providing a conciliation service
since 1946 and a Rights Commissioner Service since 1969. The 1990 Act changed
the role of the Court and re-assigned these services to the Labour Relations
Commission in order to make the Labour Court the appellate body.
[483]
Teague “New Employment Times
and the Changing Dynamics of Conflict Resolution at Work: the Case of Ireland”
(2006) 28 Comp. Lab. L. & Pol'y J. 57 at 59.
[484]
Meenan Working Within the
Law: a Practical Guide for Employers and Employees (2nd ed Oak
Tree Press 1999) at 511.
[485]
Developing Best Practice in
Employment Relationships: Strategic Objectives: 2008 – 2010 (Labour
Relations Commission, 2008) at 2. Available at www.lrc.ie.
[486]
The British Advisory,
Conciliation and Arbitration Service (Acas) established in 1974, performs similar functions to the Labour Relations
Commission. For further information on Acas see www.acas.org.uk.
[487]
Chief Executive of the Labour
Relations Commission speaking at the Joint Committee on Enterprise, Trade, and
Employment, 5 March 2008. Available at http://debates.oireachtas.ie.
[488]
See the Conciliation Service
Process (Labour Relations Commission, 2004). Available at www.lrc.ie.
[489]
Developing Best Practice in
Employment Relationships: Strategic Objectives: 2008 – 2010 (Labour
Relations Commission, 2008) at 23. Available at www.lrc.ie.
[490]
Ibid.
[491]
Chairman of the Labour
Relations Commission speaking at the Joint Committee on Enterprise, Trade and
Employment, 5 March 2008. Available at http://debates.oireachtas.ie.
[492]
Section 23 of the 1990 Act.
The Civil Service Regulation (Amendment) 2005 provides civil
servants the right of access to the Employment Appeals Tribunal and the Rights
Commissioner Service of the Labour Relations Commission.
[493]
For example, in 2008 the
Labour Relations Commission, on its own initiative invited two nursing unions
and health service employers to exploratory talks aimed at finding a basis a
dispute. See www.dohc.ie/press/releases/2008/20080508.html.
[494]
The Labour Relations
Commission assigns a mediator, known as an Industrial Relations Officer (IRO),
who acts as an independent, impartial chairperson in discussions and
negotiations between the negotiating teams that represent the employer and the
employees.
[495]
See Section 26(6) of the 1990
Act.
[496]
See the Conciliation
Service Process (Labour Relations Commission, January 2004). Available at
www.lrc.ie.
[497]
Speech delivered by R.
Morished “ The Industrial Relations Act, 1946: An Outline of the Act, with some
comparisons with other countries” (March, 1947).Available at
http://www.tara.tcd.ie/bitstream/2262/5601/1/jssisiVolXVII671_690.pdf.
[498]
Developing Best Practice in
Employment Relationships: Strategic Objectives: 2008 – 2010 (Labour
Relations Commission, 2008) at 24. Available at www.lrc.ie.
[499]
“A Brief History of Industrial
Relations in Ireland” (2004) Business 2000 8th ed., The Irish
Times at 2.
[500]
Statistics from the
Conciliation Service Division. (Labour Relations Commission, 2008).
Available at
http://www.lrc.ie/viewdoc.asp?Docid=606&Catid=19&StartDate=1+January+2008&m=s.
[501]
Ibid.
[502]
Developing Best Practice in
Employment Relationships: Strategic Objectives: 2008 – 2010 (Labour
Relations Commission, 2008) at 13. Available at www.lrc.ie.
[503]
Ibid. at 14.
[504]
Ibid.
[505]
Developing Best Practice in
Employment Relationships: Strategic Objectives: 2008 – 2010 (Labour
Relations Commission, 2008) at 22. Available at www.lrc.ie.
[506]
Ibid.
[507]
Section 25 (1)(b) of the Industrial
Relations Act 1990.
[508]
Developing Best Practice in
Employment Relationships: Strategic Objectives: 2008 – 2010 (Labour
Relations Commission, 2008) at 28. Available at www.lrc.ie.
[509]
In conducting an industrial relations audit,
the Advisory Service will audit all of the organisation’s industrial relations
practices. It will also survey all the distinct groups in the organisation. A
survey gathers information, by interview or questionnaire, on the differing
views of industrial relations across the organisation. Typically an audit is
presented as a confidential report with findings and recommendations. The
Division provides further support in terms of monitoring and, where necessary,
assisting with the implementation of recommendations.
[510]
The Division chairs joint working sessions of
company management and employee representatives working together to agree and
implement recommendations or decisions to improve industrial relations in the
workplace.
[511]
Assistance is often required in situations
where parties anticipate future difficulties. The Division assists in such
cases by providing preventive mediation. The Division advises on and develops specific
disputes and grievance procedures, new work practices, structural change and
other measures.
[512]
The Frequent Users Initiative
is a consultative process undertaken by the Advisory Service on a regular
basis.
[513]
Section 42 of the 1990 Act.
[514]
Section 42(2) of the 1990 Act.
[515]
Section 42(3) of the 1990 Act.
[516]
These include :Code of Practice On Disputes Procedure
Including Procedures In Essential Services (1992); Code of Practice,
Duties And Responsibilities Of Employee Representatives And The Protection And
Facilities To Be Afforded Them By Their Employer (1993); Code of
Practice On Voluntary Dispute Resolution (2000); Code of Practice On
Grievance And Disciplinary Procedures (2000); and Code of Practice
Detailing Procedures For Addressing Bullying In The Workplace (2002).
[517]
Section 42(4) of the 1990 Act.
[518]
SI No.76 of 2004.
[519]
Developing Best Practice in
Employment Relationships: Strategic Objectives: 2008 – 2010 (Labour
Relations Commission, 2008) at 15. Available at www.lrc.ie
[520]
Chief Executive of the Labour
Relations Commission speaking at the Joint Committee on Enterprise, Trade and
Employment, 5 March 2008. Available at http://debates.oireachtas.ie.
[521]
Developing Best Practice in
Employment Relationships: Strategic Objectives: 2008 – 2010 (Labour
Relations Commission, 2008) at 32-35. Available at www.lrc.ie.
[522]
Chief Executive of the Labour
Relations Commission speaking at the Joint Committee on Enterprise, Trade and
Employment, 5 March 2008. Available at http://debates.oireachtas.ie.
[523]
Section 13(b) of the Industrial
Relations Act 1969.
[524]
See www.lrc.ie.
[525]
Section 13 of the 1969 Act.
[526]
Section 13 (9)(a) of the 1969
Act.
[527]
Chairman of the Labour
Relations Commission speaking at the Joint Committee on Enterprise, Trade
and Employment, 5 March 2008. Available at http://debates.oireachtas.ie.
[528]
Ibid.
[529]
See Developing Best
Practice in Employment Relationships: Strategic Objectives: 2008 – 2010
(Labour Relations Commission, 2008) at 32-35. Available at www.lrc.ie.
[530]
See Developing Best
Practice in Employment Relationships: Strategic Objectives: 2008 – 2010
(Labour Relations Commission,2008) at 32-35. Available at www.lrc.ie.
[531]
Towards 2016: Ten-Year
Framework Social Partnership Agreement 2006-2015 (Stationary
Office, Department of An Taoiseach, 2006) at 97. Available at http://www.taoiseach.gov.ie/attached_files/Pdf%20files/Towards2016PartnershipAgreement.pdf.
[532]
See Bruton & O’Mahony
“Employment law and reform: What is coming down the tracks?” (2007) 4 IELJ 4 at
121.
[533]
Submission on Employment
Rights Bodies to the Department of Enterprise, Trade and Employment (Irish
Congress of Trade Unions, 2003) at 6. Available at www.ictu.ie.
[534]
Developing Best Practice in
Employment Relationships: Strategic Objectives: 2008 – 2010 (Labour
Relations Commission, 2008) at 27. Available at www.lrc.ie.
[535]
Developing Best Practice in
Employment Relationships: Strategic Objectives: 2008 – 2010 (The Labour
Relations Commission, February 2008) at 36. Available at www.lrc.ie.
[536]
Conciliation Service 2006
(Labour Relations Commission, 2007). Summary available at
http://www.lrc.ie/viewprint.asp?DocID=606&StartDate=1+January+2007.
[537]
Ibid.
[538]
Ibid.
[539]
Developing Best Practice in
Employment Relationships: Strategic Objectives: 2008 – 2010 (Labour
Relations Commission, 2008) at 27. Available at www.lrc.ie.
[540]
Ibid.
[541]
Ibid. at 15.
[542]
Teague Towards Flexible
Workplace Governance: Employment Rights, Dispute Resolution and Social
Partnership in the Irish Republic (The Policy Institute, Trinity College
Dublin, 2005) at 59.
[543]
These are: gender, marital
status, family status, sexual orientation, religion, age, disability, race and
membership of the Traveller community. The grounds apply in relation to
employment, the disposal of goods and property, the provision of services and
accommodation, and in certain aspects of education.
[544]
Section 24 of the 2000 Act.
[545]
Mediation Service: Guide to
Procedures (Equality Tribunal, 2002) at 2. Available at www.equalitytribunal.ie.
[546]
See Chapter 2, above at 2.41.
[547]
Section 78(1) of the Employment Equality Act,1998. Section 24 (1) of the Equal
Status Act 2000.
[548]
Section 78(2)(b). of the Employment Equality Act 1998
[549]
Gogan Developments in ADR:
The Equality Tribunal’s Mediation Service 2 Years On (Equality Tribunal,
2002) at 8.
[550]
Section 78(3) of the Employment Equality Act 1998. Section 24(2) of the Equal Status
Act 2000.
[551]
Gogan Developments in ADR:
The Equality Tribunal’s Mediation Service 2 Years On (Equality Tribunal,
2002) at 1.
[552]
Section 78(4) of the Employment Equality Act 1998.
Section 24(3) of the Equal
Status Act 2000.
[553]
Gogan Developments in ADR:
The Equality Tribunal’s Mediation Service 2 Years On (Equality Tribunal,
2002) at 1.
[554]
Ibid. at 5. For further
information on the Mediators Institute of Ireland see Chapter 10, below.
[555]
Section 78(5) of the Employment Equality Act 1998. Section 24(4) of the Equal
Status Act 2000.
[556]
Section 78(6) of the Employment Equality Act 1998. Section 24 5) of the Equal
Status Act 2000.
[557]
Gogan Developments in ADR:
The Equality Tribunal’s Mediation Service 2 Years On (Equality Tribunal,
2002) at 1-8.
[558]
Equality Tribunal Mediation
Review 2006 at 2. See www.equalitytribunal.ie.
[559]
Gogan Developments in ADR:
The Equality Tribunal’s Mediation Service 2 Years On (Equality Tribunal,
2002) at 1.
[560]
Equality Tribunal Mediation
Review 2006 at 17. See www.equalitytribunal.ie.
[561]
Equality Tribunal Mediation
Review 2006 at 17. See www.equalitytribunal.ie.
[562]
There have been many changes to its structure
and functions since then, following amendments to the Industrial Relations Act
in 1969, 1976, 1990, 2001 and 2004.
[563]
See www.labourcourt.ie.
[564]
See Guide to the Labour
Court at 5-8. Available at www.labourcourt.ie.
[565]
See Teague Towards Flexible
Workplace Governance: Employment Rights, Dispute Resolution and Social
Partnership in the Irish Republic (The Policy Institute, Trinity College
Dublin, 2005) at 50.
[566]
Labour Court Annual Report
2007(Labour Court, 2008) at 7.
[567]
The Employment Appeals
Tribunal adjudicates on employment disputes under the following: Redundancy
Payments Acts 1967 to 2007, Minimum Notice and Terms of Employment Acts
1973 to 2001; Unfair Dismissals Acts 1977 to 2001; Protection of
Employees (Employers’ Insolvency) Acts 1984 to 2001; Organisation of
Working Time Act 1997; Payment of Wages Act 1991; Terms of
Employment (Information ) Act 1994 and 2001; Maternity Protection Act
1994; Adoptive Leave Act 1995; Protection of Young Persons
(Employment) Act 1996; Parental Leave Act 1998; Protections for
Persons Reporting Child Abuse Act 1998; European Communities (Protection
of Employees on Transfer of Undertakings) Regulations 2003; European
Communities (Protection of Employment) Regulations 2000; Carer’s Leave
Act 2001; and Competition Act 2002.
[568]
Employment Appeals Tribunal
Procedures Revision Group: Report to the Minister for Labour Affairs (May
2007) at 2. Available at http://www.entemp.ie/publications/employment/2007/EATProceduresrevisiongroup.pdf.
[569]
Employment Appeals Tribunal
Annual Report 2006 at 2.
[570]
Ibid. at 6.
[571]
Employment Appeals Tribunal
Procedures Revision Group: Report to the Minister for Labour Affairs (May
2007) at 2. Available at http://www.entemp.ie/publications/employment/2007/EATProceduresrevisiongroup.pdf.
[572]
Employment Appeals Tribunal
Procedures Revision Group: Report to the Minister for Labour Affairs (May
2007) at 3. Available at http://www.entemp.ie/publications/employment/2007/EATProceduresrevisiongroup.pdf.
[573]
Ibid. at 27.
[574]
See www.ncpp.ie.
[575]
Achieving High Performance:
Partnership Works - The International Evidence (Research Series No. 1,
National Centre for Partnership and Performance, 2003) at 10. Available at http://www.ncpp.ie/dynamic/docs/Partnership%20Works.pdf.
See also Working to our Advantage A National Workplace Strategy: Report of
the Forum on the Workplace of the Future (National Centre for Partnership
and Performance, 2005). Available at
http://www.ncpp.ie/dynamic/docs/NationalWorkplaceStrategy.pdf.
[576]
Towards 2016: Ten-Year Framework
Social Partnership Agreement 2006-2015 (Stationary Office,
Department of An Taoiseach, 2006). Available at http://www.taoiseach.gov.ie/attached_files/Pdf%20files/Towards2016PartnershipAgreement.pdf.
[577] Bill No. 18 of
2008.
[578]
Law Reform Commission Report
on Family Courts (LRC 52-1996).
[579]
Ibid. at 55-59.
[580]
See Recommendation 22 in
the Law Reform Commission’s Report on Family Courts (LRC 52-1996) at
132.
[581]
See Recommendation 23 of
the Law Reform Commission’s Report on the Family Courts (LRC 52-1996) at
132.
[582]
Ibid.
[583]
See recommendation 24 of
the Law Reform Commission’s Report on the Family Courts (LRC 52-1996) at
132.
[584]
Ibid.
[585]
See Recommendations
25-28 of the Law Reform Commission’s Report on the Family Courts (LRC
52-1996) at 133.
[586]
Ibid.
[587]
Coulter Family Law
Reporting Pilot Project: Report to the Board of the Courts Service (Courts
Service, October 2007) Recommendation 2 at 61.
[588]
Ibid. Recommendation 8
at 62.
[589]
See
http://www.ag.gov.bc.ca/family-justice/help/pas/index.htm. See also Kruk
“Promoting Co-operative Parenting After Separation: A
Therapeutic/interventionist Model of Family Mediation” (1993) 15 Journal of
Family Therapy 235.
[590]
See Kelly “The United States
experience”, keynote address at the Proceedings of the International Forum on
Family Relationships in Transition Legislative, Practical and Policy Responses,
December 2005. Available at http://www.aifs.gov.au/.
[591]
Kelly “Psychological and Legal
Interventions for Parents and Children in Custody and Access Disputes: Current
Research and Practice” (2002) 10 Va J Soc Pol’y & L 129 at 133-136.
[592]
Pollet and Lombreglia “A
Nationwide Survey of Mandatory Parent Education” (2008) 46(2) Family Court
Review 375-394. See also Stone, Clark and McKenry “Qualitative Evaluation
of a Parent Education Program for Divorcing Parents” (2000) 34 Journal of
Divorce and Remarriage 25; and Gray et al “Making it Work: An Evaluation of
Court-mandated Parenting Workshops for Divorcing Parents” (1997) 35 Family
and Conciliation Courts Review 280.
[593]
See Blaney “Family Mediation:
A Comparative Overview” (1999) 2 IJFL 2.
[594]
See Kelly “The United States
experience”, keynote address at the Proceedings of the International Forum on
Family Relationships in Transition Legislative, Practical and Policy Responses,
December 2005. Available at http://www.aifs.gov.au/.
[595]
See Lamb and Kelly “Using the
Empirical Literature to Guide the Development of Parenting Plans for Young
Children: A Rejoinder to Solomon and Biringen” (2001) 39 Family Court Review
365–371; Catania “Learning from the Process of Decision: The Parenting Plan”
(2001) BYU L Rev 857; Kelly “Developing Beneficial Parenting Plan Models for
Children following Separation and Divorce” (2004) J Am Acad Matrimonial Law
237; and Ellis “Washington State Parenting Act in the Courts: Reconciling
Discretion and Justice in Parenting Plan Disputes” (1994) 69 Wash L Rev 679.
[596]
Letter of Advice to the
Attorney-General on Parenting Plans Part 2 (Family Law Council of Australia
and the National Alternative Dispute Resolution Advisory Council of Australia,
March 2000 Available at
http://www.ag.gov.au/agd/www/Flchome.nsf/Page/23060A7517DA516ECA256B43007E4AB7?OpenDocument.
[597]
See paragraphs 5.50 to 5.55, below.
[598]
What is a Parenting Plan? Family
Mediation Service. Available at. http://www.fsa.ie/familymediation/parentingplan.html.
[599]
Ibid.
[600]
Stark, Laing and Richards “Developing
and Using a Parenting Plan” in Information Meetings and Associated
Provisions within the Family Law Act 1996: Final Evaluation Report
(Research conducted by the Centre for Family Studies at the University of
Newcastle upon Tyne, Lord Chancellor’s Department, 2001) at 577.
[601] Stark,
Laing and Richards “Developing and Using a Parenting Plan” in Information
Meetings and Associated Provisions within the Family Law Act 1996: Final
Evaluation Report (Research conducted by the Centre for Family Studies at
the University of Newcastle upon Tyne, Lord Chancellor’s Department, 2001) at
577-582.
[602]
Parental Separation:
Children’s Needs and Parents’ Responsibilities: Report of the Responses to
Consultation and Agenda for Action (Consultation Paper, CM 6273, 2004).
Presented to the Parliament by: the Secretary of State for Constitutional
Affairs, the Secretary of State for Education, and the Secretary of State for
Trade and Industry.
[603]
Section 63B of the of the Family
Law Act 1975 , as amended by the Family Law Reform Act 1995.
[604]
Section 63C of the 1975 Act as
amended by the 1995 Act.
[605]
Section 63H of the 1975 Act,
as amended by the 1995 Act.
[606]
Letter of Advice to the
Attorney-General on Parenting Plans Part 3 (Family Law Council of Australia
and the National Alternative Dispute Resolution Advisory Council of Australia,
March 2000). Available at http://www.ag.gov.au/agd/www/Flchome.nsf/Page/23060A7517DA516ECA256B43007E4AB7?OpenDocument.
[607]
Ibid.
[608]
Law Reform Commission Consultation
Paper on Family Courts (March 1994) at 33.
[609]
See Law Commission of New
Zealand Report on Dispute Resolution in the Family Court (NZLC Report
No. 82, 2003).
[610]
Wilson “Alternative Dispute
Resolution” (1993) 7 Auckland University Law Review 2 362 at 363.
[611]
Section 8 of the 1980 Act.
[612]
Section 9 of the 1980 Act.
[613]
Section 10 of the 1980 Act.
[614]
Section 19 of the 1980 Act.
[615]
Section 10(3) of the 1980 Act.
[616]
Section 8 of the 1980 Act.
[617]
Cartwright J “The New Zealand
Family Court in operation: legislation,” Commonwealth Law Bulletin (Jan
1986) at 239-40.
[618]
Ibid.
[619]
Law Commission of New Zealand Report
on Dispute Resolution in the Family Court (NZLC Report No. 82, 2003).
[620]
Ibid. at 219.
[621]
Coulter Family Law
Reporting Pilot Project: Report to the Board of the Courts Service (Courts
Service, October 2007) at 58.
[622]
“Lenihan to urge more family
mediation” The Irish Times 13th October 2007. In 2007, 4,081
applications for divorce and 1,689 applications for judicial separation were
received by the Circuit Court. 5,210 applications for custody and access were
dealt with by the District Courts. A further 4,448 maintenance applications
were dealt with in the District Courts. (Courts Service Annual Report 2007
at 28).
[623]
Report of the Joint
Committee on Marriage Breakdown (March 1985), Chapter 8.
[624] Family
Support Agency Annual Report 2006 at 23. Available at
http://www.fsa.ie/publications/FSA%20Annual%20Report%202006%20Eng%20Version.pdf.
[625]
Alberta Law Reform Institute Research
Paper on Court-Connected Family Mediation Programs in Canada (No. 20 1994)
at 1.
[626]
Kelly “Psychological and Legal
Interventions for Parents and Children in Custody and Access Disputes: Current
Research and Practice” (2002) 10 Va J Soc Pol’y & L 129 at 131.
[627]
Law Reform Commission Consultation
Paper on Family Courts (March 1994) at 32.
[628]
Law Reform Commission Consultation
Paper on Family Courts (March 1994) at 32.
[629]
See Chapter 2, above at 2.129.
[630] Law Reform
Commission Consultation Paper on Family Courts (March 1994) at 32.
[631]
Law Reform Commission Report
on Family Courts (LRC 52-1996) paragraph 9.23.
[632]
Section 5(1) of the 1989 Act.
[633]
Section 7 of the 1989 Act.
[634]
See Conneely “The Family Law
(Divorce) Act 1996: Some Observations” (1997) 15 ILT 78.
[635]
Section 11 of the 1997 Act.
[636]
Blaney “Family Mediation: A
Comparative Overview” (1999) 2 IJFL 2.
[637]
Coulter Family Law
Reporting Pilot Project: Report to the Board of the Courts Service (Courts
Service, October 2007) at 40.
[638]
See
http://www.fsa.ie/familymediation/index.html.
[639]
Family Support Agency
Annual Report 2006 at 24. Available at
http://www.fsa.ie/publications/FSA%20Annual%20Report%202006%20Eng%20Version.pdf.
[640]
Coulter Family Law Reporting
Pilot Project: Report to the Board of the Courts Service (Courts Service,
October 2007) at 40.
[641]
Ibid.
[642]
Coulter Family Law
Reporting Pilot Project: Report to the Board of the Courts Service (Courts
Service, October 2007) Recommendation 9 at 62. See Chapter 10 below for the
Commission’s discussion on training and accreditation for family mediators.
[643]
See Schoffer “Bringing
Children to the Mediation Table: Defining a Child’s Best Interest in Divorce
Mediation” (2005) 43 Family Court Review at 324; Neale and Smart Good
to Talk: Conversations with Children after Divorce (Nuffield Foundation,
London, 2000); Pedro-Carroll et al “Assisting Children Through Transition:
Helping Parents Protect Their Children from the Toxic Effects of Ongoing
Conflict in the Aftermath of Divorce” (2001) 39 Family Court Review
377; and, Harold and Murch “Children of Separated and Divorced Parents: Theory,
Research and Future Directions” (2004) 7IJFL 3 16.
[644]
Council Regulation (EC) No
2201/2003 of 27 November 2003.
[645]
Ibid. Article 4.
[646]
See Conneely “Researching the
Irish Family Mediation Service: Children in Mediation” (2000) 4 IJFL 16; and
Emery “Easing the Pain of Divorce for Children: Children's Voices, Causes of
Conflict, and Mediation - Comments on Kelly's Resolving Child Custody Disputes”
(2002) 10 Va J Soc Pol’y & L 164.
[647]
Ibid.
[648]
See Lloyd “The Family
Mediation Service: Recent Developments” [2001] 3 IJFL 23.
[649]
Family Mediation Service
Code of Ethics and Professional Conduct (2002). Sections 5.16-5.19.
[650]
See McIntosh
“Child-Inclusive Divorce Mediation: Report on a Qualitative Research Study” (2000)18
Mediation Quarterly 2; and Legal Aid and Mediation for People
involved in Family Breakdown (National Audit Office, Legal Services
Commission, March 2007) at 26.
[651]
Goldson Hello, I’m a Voice,
Let me Talk: Child-Inclusive Mediation in Family Separation (Families
Commission, Innovative Practice Report No 1/06, December 2006). Available at
http://www.nzfamilies.org.nz/download/innovativepractice-goldson.pdf.
[652]
Ibid. at 5.
[653]
Ibid. at 12.
[654]
Ibid. at 16.
[655]
Available at http://www.afccnet.org/pdfs/modelstandards.pdf.
[656]
See Schoffer “Bringing
Children to the Mediation Table: Defining a Child’s Best Interest in Divorce
Mediation” (2005) 43 Family Court Review at 326.
[657]
See paragraph 5.43 above. See
also Conneely “Researching the Irish Family Mediation Service: Women in
Mediation” (2002) 5(2) IJFL 10; Gerencser “Family Mediation: Screening for
Domestic Abuse” (1995) 23 Fla St U L Rev 43; Zylstra “Mediation and Domestic
Violence: A Practical Screening Method for Mediators and Mediation Program
Administrators” (2001) J Disp Resol 253; Mack “Alternative Dispute Resolution
and Access to Justice for Women” (1995) 17 Adel LR 123.
[658]
Family Mediation Service
Code of Ethics and Professional Conduct (2002). Sections 5.20.
[659]
Lloyd “The Family Mediation
Service: Recent Developments” [2001] 3 IJFL.
[660]
Law Reform Commission Report
on Family Courts (LRC 52-1996). Recommendation 48 at 137.
[661]
Ibid. Recommendation 49
at 137.
[662]
Law Reform Commission Report
on Family Courts (LRC 52-1996).Recommendation 50 at 137.
[663]
Ibid. Recommendation 51
at 137.
[664]
Ibid. Recommendation 52
at 137.
[665]
Coulter Family Law
Reporting Pilot Project: Report to the Board of the Courts Service (Courts
Service, October 2007) at 61.
[667]
Divorcing or Separating? National
Family Mediation (2006). Available at
http://www.nfm.org.uk/leaflets/NFM%20Leaflet%20v5.pdf.
[668]
Sayers “Family Mediation in
England and Wales”. Presentation to The Committee on Legal Affairs Presidency
of the Council of the European Union “Mediation: Pushing the Boundaries”,
October 2007. See also Information Meetings and Associated Provisions within
the Family Law Act 1996: Summary of the Final Evaluation Report (Lord Chancellor’s
Department, London, 2001).
[669]
Law Commission of England and Wales Report
on Family Law: The Ground for Divorce (Law Com. No. 192, 1990).
[670]
Section 1(c) of the 1996 Act.
[671]
Section 29 of the 1996 Act. A
number of other States including Queensland, Victoria and New South Wales have
also developed mediation and conferencing schemes in which family law clients
must participate as a condition of a grant of State-funded legal aid.
[672]
See Cretney, Masson and
Bailey-Harris Principles of Family Law (Sweet and Maxwell 2003) at 303.
[673]
Sayers “Family Mediation in
England and Wales”. Presentation to The Committee on Legal Affairs Presidency
of the Council of the European Union “Mediation: Pushing the Boundaries”,
October 2007.
[674]
Ibid.
[675]
Parkinson “Family Mediation in
England and Wales” (2005), online article available at www.rln.lt/download.php/fileid/227.
[676]
See Family Mediation Fee
Scheme of the Legal Services Commission at
http://www.legalservices.gov.uk/civil/remuneration/family_mediation_fee_scheme.asp.
[677]
Legal aid and mediation for
people involved in family breakdown (National Audit Office, HC 256 Session,
2007).
[678]
Ibid.
[679]
Legal aid and mediation for
people involved in family breakdown (National Audit Office, HC 256 Session,
2007) at 8.
[680]
See Tondo et al “Mediation Trends: A
Survey of the States” (2001) 39 Fam Ct Rev 431.
[681]
Ibid. at 433
[682]
See Kelly “The United States
experience”, keynote address at the Proceedings of the International Forum on
Family Relationships in Transition Legislative, Practical and Policy Responses,
December 2005. Available at http://www.aifs.gov.au/.; and Kelly ‘Psychological
and Legal Interventions for Parents and Children in Custody and Access
Disputes: Current Research and Practice’ (2002) 10 Va. J. Soc. Pol’y & L.
129 at 137.
[683]
See Folberg “Mediation of Child
Custody Disputes” (1985) 19 Colum J L & Soc Probs 413; Garner “Child
Custody Mediation: A Proposed Alternative to Litigation” (1989) J Disp Resol
139; and Barlow “Divorce Child Custody Mediation: In Order to Form a More
Perfect Disunion” (2004) 52 Clev St L Rev 499.
[684]
Including Delaware, Florida, Hawaii,
Idaho, Maine, Nevada, North Carolina, South Dakota, and Utah.
[685]
See Goldberg “Family Mediation is
Alive and Well in the United States of America: A Survey of Recent Trends and
Developments” (1996) J S Afr L 358.
[686]
Cal. Fam. Code Section 3161.
[687]
Kelly “Family Mediation Research: Is
There Empirical Support for the Field?” (2004) 22 Conflict Resolution
Quarterly 1 at 5. See also Kandel “Development Appropriateness as Law in
California Child Custody Mediation: Towards a Jurisprudence of Persuasion”
(1995) 35 J Legal Pluralism L 75.
[688]
See www.nadrac.gov.au.
[689]
Bordow and Gibson, Evaluation of
the Family Court Mediation Service (Family Court of Australia Research and
Evaluation Unit, Research Report No 12, 1994).
[690]
Ibid.
[691]
Ibid.
[692]
Section 10G(1) of the 1975 Act as
amended by the 2006 Act.
[693]
Section 60I(8) of the 1975 Act as
amended by the 2006 Act.
[694]
Section 11 F (3) of the 1975 Act as
amended by the 2006 Act.
[695]
Section 11A of the 1975 Act as
amended by the 2006 Act.
[696]
Section 11C of the 1975 Act as
amended by the 2006 Act.
[697]
Nicholls “The New Family Dispute
Resolution System: Reform Under the Family Law Amendment (Shared Parental
Responsibility) Act 2006” (2007) 3(1) Bond University Student Law
Review at 6.
[698]
Alberta Law Reform Institute Research
Paper on Court-Connected Family Mediation Programs in Canada at 4. (Alberta
Law Reform Institute Research Paper No. 20, 1994).
[699]
Ibid.
[700]
R.S.C. 1985 (2nd Supp.), c.3,
s.9(2).
[701]
Children's Law Reform Act,
R.S.O. 1990, c.C.12, s.31; Family Law Act, R.S.O. 1990, c.F.3, s.3.
[702]
Children's Law Act, R.S.Nfld.
1990, c.C-13, s.37,41; Family Law Act, R.S.Nfld. 1990, c.F-2, s.4.
[703]
Children's Act, R.S.Y. 1986, c.22,
s.42.
[704]
Children's Law Act, S.S. 1990,
c.C-8.1, s.10; Family Maintenance Act, S.S. 1990, c.F-6.1, s.13.
[705]
Bill 14 (1993, c.1), 34th Leg. 2nd
Sess., amending the Code of Civil Procedure, R.S.Q. 1977, c.C-25, arts.815,827.
[706]
See
http://www.mediator-roster.bc.ca/select_cp.cfm.
[707]
See
http://www.ag.gov.bc.ca/dro/family-mediation/PracticumProgram.pdf.
[708]
See
http://www.justice.gouv.qc.ca/English/publications/generale/mediation-a.htm#anchor145822.
[709]
See paragraph 5.33, above.
[710]
See paragraph 5.63, above.
[711]
See Law Commission of New Zealand Report
on Dispute Resolution in the Family Court (NZLC Report No. 82, 2003) at 69.
[712]
Barwick and Gray Family Mediation
- Evaluation of the Pilot: Report for the Ministry of Justice (Ministry of
Justice, 2007). Available at
http://www.justice.govt.nz/pubs/reports/2007/family-mediation-evaluation-of-pilot/ex-summary.html.
[713]
Ibid. at 11.
[714]
Ibid.
[715]
Barwick and Gray Family Mediation
- Evaluation of the Pilot: Report for the Ministry of Justice (Ministry of
Justice, 2007) at 12. Available at
http://www.justice.govt.nz/pubs/reports/2007/family-mediation-evaluation-of-pilot/ex-summary.html.
[716]
Ibid. at 14.
[717]
Ibid. at 15.
[718]
Ibid. at 17.
[719]
Ibid.
[720]
2008 No 143-2.
[721]
Evaluation Study on The Pilot
Scheme on Family Mediation: Final Report (A Consultancy Study Commissioned
by the Judiciary Of the Hong Kong Special Administration Region, January 2004)
at 1. Available at
http://www.judiciary.gov.hk/en/publications/hkpu_finalreport.pdf.
[722]
See Report of the Working Group
to Consider a Pilot Scheme for the Introduction of Mediation into Family Law
Litigation in Hong Kong (1999).
[723]
Law Reform Commission of Hong Kong Report
The Family Dispute Resolution Process (LRC HK March 2003) at 18.
[724]
Evaluation Study on The Pilot
Scheme on Family Mediation: Final Report (A Consultancy Study Commissioned
by the Judiciary Of the Hong Kong Special Administration Region, January 2004)
at 1. Available at
http://www.judiciary.gov.hk/en/publications/hkpu_finalreport.pdf.
[725]
Ibid.
[726]
Ibid.
[727]
Evaluation Study on The Pilot
Scheme on Family Mediation: Final Report (A Consultancy Study Commissioned
by the Judiciary Of the Hong Kong Special Administration Region, January 2004).
Available at http://www.judiciary.gov.hk/en/publications/hkpu_finalreport.pdf.
[728]
Walls “Collaborative law a new and
better way” Sunday
Business Post 25 March, 2007.
[729]
See Chapter 2, above at paragraph
2.42.
[730]
Walls “Collaborative law a new and
better way” Sunday
Business Post 25 March, 2007.
[731]
Ibid. See also Bryan
“Collaborative divorce: meaningful reform or another quick fix?” (1999) 5(4) Psychology,
Public Policy, and Law 1001; Gamache “Collaborative practice: a new
opportunity to address children’s best interests in divorce” (2005) 65 Louisiana
Law Review 1455; Lande and Gregg “Fitting the forum to the family fuss:
choosing mediation, collaborative law, or cooperative law for negotiating
divorce cases” (2004) 42(2) Family Court Review 280; and Schwab
“Collaborative Lawyering: A Closer Look at an Emerging Practice” (2003) 4 Pepp
Disp Resol L J 351.
[732]
Information Leaflet on
Collaborative Lawyering Legal Aid Board. See www.legalaid.ie.
[733]
Coulter “A New Era in Family Law” The
Irish Times 17 May, 2006.
[734]
Ibid.
[735]
See www.acp.ie .
[736] See Annable
“Beyond the Thunderdome - The Search for a New Paradigm of Modern Dispute
Resolution: The Advent of Collaborative Lawyering and Its Conformity with the
Model Rules of Professional Conduct” (2004) 29 J Legal Prof 157.
[737]
Walls “Collaborative law a new and
better way” Sunday
Business Post 25 March, 2007.
[738]
Family Law Matters Volume 2
No 1 (Courts Service, Spring 2008) at 22. Available at www.courts.ie.
[739]
See Horgan “Let’s work together”
(2005) 99 Law Society Gazette 5.
[740]
Ibid.
[741]
See Slovin “The Basics of
Collaborative Family Law- A Divorce Paradigm Shift” (2005) 18 The American
Journal of Family Law 2.
[742]
Horgan “Let’s work together” (2005) 99
Law Society Gazette 5.
[743]
See Slovin “The Basics of
Collaborative Family Law- A Divorce Paradigm Shift” (2005) 18 The American
Journal of Family Law 2.
[744] These provisions
are based on the articles of the draft Uniform Collaborative Law Act 2007 by
the National Conference on Commissioners on Uniform Law in the United
States. See http://www.law.upenn.edu/bll/archives/ulc/ucla/oct2007draft.htm#_Toc176230887
[745]
As of 2007, IACP members include
lawyers from the USA (2,304 members), Canada (91 members), England (25
members), Ireland (6 members), Scotland (6 members), Australia (21 members),
New Zealand (1member), Austria (3 members) and Switzerland (1member). See
www.collaborativepractice.com and Minimum standards for a collaborative
basic training,www.collaborativepractice.com/articles/IACP_Training_Standards.pdf.
[746]
Pirrie “Collaborative divorce”
(2006) 156 New Law Journal 898 at 899.
[747]
Schwab “Collaborative lawyering: a
closer look at an emerging practice” (2004) 4 Pepperdine Dispute Resolution
Law Journal 351 at 355.
[748]
Section 6.603 of the Texas Family
Code 2001.
[749]
Texas Family Code 2001 sections
6.603 and 153.0072. See also Collaborative Law Council Inc, Protocols of
practice for collaborative lawyers, Texas, 2005 at
www.collaborativelaw.us/articles/TCLC_Protocols.pdf.
[750]
Schwab “Collaborative lawyering: a
closer look at an emerging practice” (2004) 4 Pepperdine Dispute Resolution
Law Journal 351 at 355.
[751]
Judge Donna Hitchens, quoted in
Tesler “Donna J Hitchens: family law judge for the twenty‑first century”
(2000) 2 The Collaborative Quarterly 1 at 3.
[752]
Ibid. at 2–3.
[753]
See Da Costa “Divorce with
dignity” (2005) 35 Family Law Journal 478 at 481.
[754]
Article 4 sets out in some detail
the legal requirements for parties seeking to resolve a divorce dispute on a
collaborative basis, as well as a list of definitions relating to collaborative
law.
[755]
Sections 50–76, Article 4, Chapter
50, North Carolina General Statute (2004). If the collaborative process
is successful, parties are ‘entitled to an entry of judgment or order to give
legal effect to the terms of a collaborative law settlement agreement’.
If the parties are unable to reach an agreement, they may immediately resume or
commence a civil action provided that the collaborative agreement does not
stipulate that alternative means of dispute resolution be attempted first.
[756]
Sections 50-72 Article 4, Chapter
50, North Carolina General Statute (2004).
[757]
Sections 50-77 Article 4, Chapter
50, North Carolina General Statute (2004).
[758]
Family Law Council Collaborative
Proactive in Family Law: A report to the Attorney-General (Family Law
Council, 2006) at 2-4.
[759]
Walls “Collaborative law a new and
better way” Sunday
Business Post 25 March, 2007. See also Fairman
“Ethics and Collaborative Lawyering: Why Put Old Hats on New Heads “ (2002) 18
Ohio St J Dis Resol 505.
[760]
Courts Service Annual Report 2006
at 51.
[761]
Courts Service Annual Report 2006
at 51.
[762]
Information on the case conferencing
procedure was provided to the Commission by Patrick Meghen, Limerick County
Registrar.
[763]
Case study provided to the
Commission by Patrick Meghen, Limerick County Registrar.
[764]
Information on the case conferencing
procedure was provided to the Commission by Patrick Meghen, Limerick County
Registrar.
[765]
Parental Separation: Children’s
Needs and Parents’ Responsibilities: Report of the Responses to Consultation
and Agenda for Action (Consultation Paper, CM 6273, 2004). Presented to the
Parliament by: the Secretary of State for Constitutional Affairs, the Secretary
of State for Education, and the Secretary of State for Trade and Industry.
[766]
Report of the Responses to
Consultation and Agenda for Action, Parental Separation: Children’s Needs and
Parent’s Responsibilities - Next Steps, (Cm 6452, January 2005). http://www.dfes.gov.uk/childrensneeds/docs/ParentalSeparation.pdf.
[767]
See Walsh “Family
Mediation Helpline” (2007) 37 Fam Law 1038.
[768]
Sayers “Family Mediation in England
and Wales”. Presentation to The Committee on Legal Affairs Presidency of the
Council of the European Union “Mediation: Pushing the Boundaries”,
October 2007.
[769]
Fielding “Mediating Probate
Disputes” (2006) 156 NLJ 1605.
[770]
See Brady Succession Law in
Ireland (2nd ed Butterworths, 1995).
[771]
See Hourican “Section 117 Claims:
Practice and Procedure and Matters to Bear in Mind” (2001) 6(3) CPLJ 62.
[772]
Remarks by President McAleese at the
opening of the second European Collaborative Law Conference, Cork, 2 May 2008.
Available at www.president.ie
[773]
See Clancy “Risk
Management in the Irish Health Service – where do we go from here?” (2003) 9 Medico-Legal
Journal of Ireland 88.
[774]
Moloney “Dealing with
Medical Negligence Claims: a review of options for reform” (1999) 5 Medico-Legal
Journal of Ireland 2 at 79.
[775]
Lord Woolf, Access to
Justice Final Report (1996) at Chapter 15(2).
[776]
The States Claims Agency
was established in 2001 as a unit within the National Treasury Management
Agency (NTMA), pursuant to the National Treasury Management Agency
(Amendment) Act 2000. The SCA was established in response to the need to
manage mass claims such as the Army deafness claims on the 1990’s. See Report
on Multi-Party Litigation (LRC 76-2005), para 1.13.
[777]
See www.stateclaims.ie.
[778]
See
http://www.stateclaims.ie/ClinicalIndemnityScheme/introduction.html.
[779]
Lord Woolf, Access to
Justice, Interim Report (1995) at paragraph14.
[781]
Ibid.
[782]
Ibid.
[783]
See Chapter 1, above at 1.16.
[784]
On the organ retention
controversy see also Report of Dr. Deirdre Madden on Post Mortem Practice
and Procedures (Department of Health and Children, 2005), available at
www.dohc.ie.
[785]
This case study is taken from Complaints
against the Public Health Service A Report by the Ombudsman to the Health
Service Executive (Office of the Ombudsman, March 2006) at Chapter 6
‘Complaints and Complaint Handling’. Available at
http://ombudsman.gov.ie/en/Publications/InvestigationReports.
[786]
Complaints against the
Public Health Service A Report by the Ombudsman to the Health Service Executive
(Office of the Ombudsman, March 2006) at Chapter 6 ‘Complaints and Complaint
Handling’. Available at http://ombudsman.gov.ie/en/Publications/InvestigationReports.
[787]
Allen “A New Way to Settle Old
Disputes: Mediation and Healthcare” (2005) 73 Medico-Legal Journal 3 at
93-110.
[788]
Taft “Apology Subverted: The
Commodification of Apology” (2000) 109 Yale Law Journal 1135 at 1137.
[789]
Tanick and Ayling “Alternative
Dispute Resolution by Apology: Settlement by Saying I’m Sorry” Hennepin Lawyer
(1996) at 22.
[790]
Cohen “Legislating Apology:
The Pros and Cons” (2002) 70 U. Cin. L. Rev. 819 at 872.
[791]
Address by Kevin Murphy,
Ombudsman “Handling Complaints in the Health Services” at Eastern Regional
Health Authority Regional Conference (March 2002). Available at
http://www.ombudsman.irlgov.ie/ga/raidi/Name,2181,ga.htm.
[792]
2000 No. 13001P.
[793]
Mass. Gen. Laws Ann. Ch 233
S23D (West Supp. 1998).
[794]
Mass. Gen. Laws Ann. Ch 233
S23D (West Supp. 1998).
[795]
Berlin “Will Saying "I'm
Sorry" Prevent a Malpractice Lawsuit?” (2006) 187 American Journal of
Roentgenology (2006) 10-15. Available at http://www.ajronline.org/cgi/content/full/187/1/10#REF21.
[796]
Discussion Paper on Apology
Legislation (British Columbia Ministry of the Attorney General, 2006) at 2.
Available at www.ag.gov.bc.ca.
[797]
See Civil Law (Wrongs) Act,
2002 (A.C.T.) ss 12-14; Civil Liability Act, 2002 (N.S.W.) ss.67-69;
Civil Liability Act, 2002 (Tas.), ss.6-7; Civil Liability Act 2002
(W.A.) SS5AF-H.
[798]
S.B.C. 2006,c.19
[799]
British Columbia, Legislative
Assembly, Hansard, Vol. 8, No. 7 (29 March 2006) at 3456. (Hon. W. Oppal).
[800]
Samuels “The Compensation Act
2006: Helpful or Unhelpful for Doctors?” (2006) 74 MLJ 171.
[801]
SI No.2 of 2007.
[802]
Section 57 of the 2007 Act.
[803]
Section 59 of the 2007 Act.
[804]
Section 62 of the 2007 Act.
[805]
Select Committee on Health and
Children, Committee Debate 21 March 2007 on the Medical Practitioners Bill
2007.
[806]
Section 62 (3) of the Act.
[807]
Section 62(4) of the Act.
[808]
Section 62 (5) of the Act.
[809] Section 62
(6) of the Act.
[810]
See “’Your Service,
Your Say’ The Policy and Procedures for the Management of Consumer Feedback to
include Comments, Compliments and Complaints in the Health Service Executive”
(HSE Consumer Affairs, February 2008). Available at www.hse.ie.
[812]
[2006] EWCA Civ 24. at para. 35.
[813]
Ibid. at para. 65.
[814]
Ward “Mediation: An Invaluable
Component of Any ADR Forum within the Irish Healthcare System” 7 (2001)Medico-Legal
Journal of Ireland 2 at 64.
[815]
See Mulcahy et al. Mediating
medical negligence claims: an option for the future? (Stationary Office,
2000).
[816]
Ibid.
[817]
Ward “Mediation: An Invaluable
Component of Any ADR Forum within the Irish Healthcare System” (2001) 7
Medico-Legal Journal of Ireland 2 at 64.
[818]
Pre- Action Protocol for the
Resolution of Clinical Disputes. Available at
http://www.justice.gov.uk/civil/procrules_fin/contents/protocols/prot_rcd.htm.
[819]
See http://www.nhsla.com/.
[820]
Nesic “Mediation on the
Rise in the United Kingdom?” (2001) 13 Bond Law Review 2.
[821]
Ibid.
[822]
Pre-Action Protocol for the
Resolution of Clinical Disputes. (The Stationery Office, Department of
Constitutional Affairs, 1998) Available at http://www.justice.gov.uk/civil/procrules_fin/contents/protocols/prot_rcd.htm.
[823]
Section 1.6 of the Protocol.
[824]
Section 1.2 of the Protocol.
[825]
Section 5.1 the Protocol.
[826]
Section 5.4 the Protocol.
[827]
Wis. Stat. § 655.42(1); See
also Doran “A Healthy Alternative” (2001) 95 Law Society Gazette 2 at
16, for a general discussion on mediation and medical negligence in the United
States.
[828]
Wis. Stat. § 655.42(1)
[829]
See Chapter 2, above at 2.115.
[830]
Maine Rev. Stats. Title 24, §
2851 and 2853.
[831]
Joint Committee of Health and
Children, Medical Litigation Presentations, 14 October 2004. Available at
http://debates.oireachtas.ie/DDebate.aspx?F=HEJ20041014.xml&Ex=All&Page=3
[832]
McVeagh “Mediation in
Clinical Negligence Cases and NHS Complaints – A Way Forward?” (June 2006).
Online article available at www.restorativejustice.org.uk/Health_Sector/MEDIATIONarticleforMediationJournalJun06.pdf.
[833]
Runesson and Guy Mediating
Corporate Governance Conflicts and Disputes (The International Finance
Corporation, World Bank Group, 2007) at 28. Available at www.ifc.org.
[834]
Aylmer “Commercial
Mediation in Ireland - An Opportunity for Progress?” (February 2007),
online article available www.efc.ie.
[835]
See JAMS Guide to
Dispute Resolution Clauses for Commercial Contracts (2006). Available at
www.jamsadr.com.
[836]
CEDR UK “Conflict is
costing business £33 billion every year” (26 May 2006). Online article
available at www.cedr.com.
[837]
Ibid.
[838]
Ibid.
[839]
Stewart “Pride Comes
Before a Claim – The Psychology of Dispute Resolution” Company’s Secretary
Review (January 2008). Available at http://www.ffw.com/publications/all/articles/psychology-dispute-resolution.aspx.
[840]
Ibid.
[841]
“The Inside Track –
How Blue-Chips are using ADR” Survey & Report conducted by Herbert Smith
LLP November 2007. Available at www.herbertsmith.com.
[842]
Ibid.
[843]
Runesson and Guy Mediating
Corporate Governance Conflicts and Disputes (The International Finance
Corporation, World Bank Group, 2007) at 13. Available at www.ifc.org.
[844]
Response of the International
Institute for Conflict Prevention and Resolution (“CPR Institute”) to questions
posed by Arlene McCarthy MEP concerning what became the Directive of the
European Parliament and of the Council on Certain Aspects of Mediation in Civil
and Commercial Matters at 3 (November 2005). Available at http://www.europarl.europa.eu/comparl/juri/consultations/cpr_en.pdf.
[845]
Runesson and Guy Mediating
Corporate Governance Conflicts and Disputes (The International
Finance Corporation, World Bank Group, 2007) at 24. Available at www.ifc.org.
[846]
“Case study: Abuse of market
dominance claim mediated to maintain working relationship” CEDR Solve.
Available at http://www.cedr.com/CEDR_Solve/casestudies/results.php?param=4.
[847]
Morgan “Commercial Dispute
Resolution in Ireland — A Comparative Analysis” (2002) 9 Commercial Law
Practitioner (9) 200. See also Reichert “Commercial Mediation” (2003) 8 Bar
Review 4 at 167; Aylmer “The Civil Procedure Rules and commercial mediation
– a case for Ireland” (2004) 11 Commercial Law Practitioner 14; Williams
“Tough Talking” (2003) 97 Law Society Gazette 6 at 27.
[848]
[2007] IESC 36 Supreme Court, 27 July 2007.
See Dowling “Fyffe’s v DCC – Analysis and Implications” (2006) 13 CLP
2.
[849]
Alexander Global Trends in
Mediation (Kluwer Law International 2006) at 49.
[850]
Runesson and Guy Mediating
Corporate Governance Conflicts and Disputes (The International Finance
Corporation, World Bank Group, 2007) at 13. Available at www.ifc.org.
[851]
JAMS Guide to Dispute
Resolution Clauses for Commercial Contracts (2006). Available at
www.jamsadr.com.
[852]
Runesson and Guy Mediating
Corporate Governance Conflicts and Disputes (The International Finance
Corporation, World Bank Group, 2007) at 44. Available at www.ifc.org.
[853]
See Chapter 2, above at
paragraph 2.32 for examples of single and multi-tiered ADR clauses.
[854]
Runesson and Guy Mediating
Corporate Governance Conflicts and Disputes (The International Finance
Corporation, World Bank Group, 2007) at 6. Available at www.ifc.org.
[855]
[2002] 2 IR 47(Supreme Court, 23 April
2002).
[856]
[1993] AC 334.
[857]
Ibid. at 353.
[859]
[2002] EWHC 2059 Comm. at paragraph 1.
[860] (1999)
153 FLR 236.
[861]
Ibid. at 246.
[862]
(1856) 5 HLC 811.
[863]
(1999) 153 FLR 236 at 252.
[864]
SI No. 2 of 2004. See
generally: Holmes “Two years on – The Commercial Court” 2 (2006) 1 Journal
of Civil Practice and Procedure 1 at 15; Hayes “The Commercial Court”
(2005) 23 Irish Law Times 317; Jacobs and Roulston “In the Know” (2004)
98 Law Society Gazette 4; Mr. Justice Peter Kelly “The Commercial Court”
(2004) 9 Bar Review 1; Stauber “Commercial Courts: Twenty-First Century
Necessity?” (2007) 1 Judicial Studies Institute Journal at 154.
[865]
Order 63A, r.6(1)(b)(xiii).
[866]
See Chapter 3, above at 3.03.
[867]
Dowling The Commercial
Court (Thomson Round Hall 2007) at 256.
[868]
SI 130 of 2005.
[869]
Pender “Roadway dispute is
settled” (27Feb. 2008) The Nationalist. Available at
http://www.carlownationalist.ie/news/story/?trs=mhmhqlkfmh&cat=news.
[870]
Further examples of cases
which were adjourned for mediation and resulted in settlement through mediation
include: Mandraki Associates Ltd v Shell International Petroleum Company Ltd
Record No.2005/4283P, HSBC Bank Plc v Lillis Record No.2005/3444P
and C & C (Ireland) Ltd v Societe Anonyme des Eaux Minerales d’Evian.
Record No.2005/3718P. See Dowling The Commercial Court (Thomson Round
Hall 2007).
[871]
Stewart & Moore “Mediation
in Ireland – An improving environment” (2005) 12 (5) CLP 115.
[872]
Genn “Court-Based ADR
Initiatives for Non-Family Civil Disputes: The Commercial Court & the Court
of Appeal” (Department of Constitutional Affairs, Research Report
No. 1, 2002) Executive Summary. Available at
http://www.dca.gov.uk/research/2002/1-02es.htm.
[873]
Admiralty, Commercial and
Mercantile Court Guides (Her Majesty’s Courts Service, 2006). Available at
http://www.hmcourtsservice.gov.uk/publications/guidance/admiralcomm/index.htm.
[874]
Chapter G (G.1.2). of the Commercial
Court Guide at 48.
[875]
Chapter G (G 1.6) of the Commercial
Court Guide, at 48.
[876]
Commercial Court Guide, at
168.
[877]
Genn “Court-Based ADR Initiatives
for Non-Family Civil Disputes: The Commercial Court & the Court of Appeal”
(Department of Constitutional Affairs, Research Report No. 1, 2002). Available
at http://www.dca.gov.uk/research/2002/1-02es.htm.
[878]
Genn “Court-Based ADR
Initiatives for Non-Family Civil Disputes: The Commercial Court & the Court
of Appeal” (Department of Constitutional Affairs, Research Report No. 1, 2002).
Available at http://www.dca.gov.uk/research/2002/1-02es.htm.
[879]
Ibid.
[880]
Ibid.
[881]
Report and Recommendations
of the Commercial Court Long Trials Working Party (Judiciary of England
Wales, December 2007 at 58. Available at
http://www.judiciary.gov.uk/docs/rep_comm_wrkg_party_long_trials.pdf.
[882]
Ibid.
[883]
Government Departments and
Local Authorities.
[884]
Institution of Engineers of
Ireland.
[885]
See: Public Works Contract for
Building Works Designed by the Employer Public Works Contract for Building
Works Designed by the Contractor; Public Works Contract for Civil Engineering
Works Designed by the Employer; Public Works Contract for Civil Engineering
Works Designed by the Contractor; Public Works Contract for Minor Civil
Engineering and Building Works designed by the Employer (contracts less than
€5m); Short Form of Public Works Contracts for Building and Civil Engineering
Works (contracts less than €500,00.00). Available at www.finance.gov.ie.
[886]
Howley and Lang Public
Works Contract for Building Works Designed by the Employer Explained
(Clarus Press, 2008) at i.
[887]
Ibid.
[888]
See also Munnelly “Recent
developments in construction law: the newly published contracts for publicly
funded construction works” (June 2007) 12 Bar Review 3 at 118.
[889]
In England and Wales, commercial
disputes arising from construction contracts are litigated in the Technology
and Construction Court (TCC).
[890]
See Chapter 2, above at
paragraph 2.44.
[891]
The use of the word
“adjudicate” in clause 13.1 may have been influenced by the English Latham
Report which was published in 1999 and which recommended, among other measures,
widespread use of adjudication as the method for prompt dispute resolution to
be used prior to any arbitration or litigation proceedings. This recommendation
was implemented in section 108 of the Housing Grants Construction and
Regeneration Act 1996 which provides that any party to a construction
contract subject to the legislation has a right to refer any dispute arising
under it for resolution by adjudication. See generally: Nesic “Mediation – On
the Rise in the UK?” (2001) 13 Bond Law Review 2. Available at
http://www.austlii.edu.au/au/journals/BondLRev/2001/20.html#fnB23.
[892]
Bunni “The Conciliation Procedures
of Engineers Ireland with specific reference to The Conciliation Procedure
2007” paper presented at the Seminar on New Dispute Resolution Procedures
for Public Works and Private Contracts, 30 April 2008,Dublin at 3.
[893]
Hutchinson “Dispute
Resolution” in Keane and Hussey Construction
Projects – Law and Practice (Thomson
Round Hall, 2007) at 8-68.
[894]
Or a longer period proposed by
the conciliator and agreed by the parties.
[895]
Bunni “The Conciliation
Procedures of Engineers Ireland with specific reference to The Conciliation
Procedure 2007” paper presented at the Seminar on New Dispute Resolution
Procedures for Public Works and Private Contracts, 30 April 2008, Dublin at
5.
[896]
Runesson and Guy Mediating
Corporate Governance Conflicts and Disputes (The International Finance
Corporation, World Bank Group, 2007) at 18. Available at www.ifc.org.
[897]
See White and Stewart “Arbitration
clauses and shareholders’ remedies” (2002) 9 CLP 246.
[898]
Report of the Legal Costs Working Group (Stationary Office, Government
Publications, 2005) at 33.
[899]
Carey and Leonowicz
“Litigation of Shareholder Disputes Under Woolf- Can Such Changes Yield
Advantages for Ireland?” (1999) 6 CLP 12 at 6.
[900]
Law Commission Report on
Shareholder Remedies (LC246 – 1997) at para. 2.19.
[901]
Modern Company Law For a
Competitive Economy (Final Report of the Company Law Review Steering Group
of the UK Department of Trade and Industry, 2001) at 38.
[902]
See www.lawlibrary.ie.
[903]
Launch of Small Claims
Arbitration Scheme” Bar Council of Ireland Press Release 19 October, 2005.
Available at www.lawlibrary.ie.
[904]
See www.arbitrators.org.
[905]
See www.arbitration.ie.
[906]
See Chapter 2, above at
paragraphs 2.128 and 2.129.
[907]
See Chapter 8, below at
paragraph 8.24.
[908]
See
http://www.arbitration.ie/Arbitration/ibranch/eusubmissions.html.
[909]
See www.icma.ie.
[911]
See Anderson “Sports and The
Courts –Time for A Sports Disputes Tribunal of Ireland?” (2005) 23 Irish Law
Times 149.
[912]
Unreported High Court, 23rd
January 2007.
[913]
Ibid. at para. 11.
[914]
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.
[915]
Ibid.
[916]
See 7.87, below.
[917]
[1988] IR 89.
[918]
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 1998”
(1999) 17 Irish Law Times 262; Anglade “Developing International
Arbitration in Ireland” (1999) 5 Bar Review 3 143.
[919]
See www.dublinarbitration.ie.
[920]
“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.
[921]
See http://www.adr.org/icdr.
[922]
See www.iccwbo.org.
[923]
ICC International Court of
Arbitration (ICC Publication 810, April 2006). Available at http://www.iccwbo.org/uploadedFiles/Court/Arbitration/810_Anglais_05.pdf.
[924]
These include: Permanent Court
of Arbitration Optional Rules for Arbitrating Disputes between Two States
(adopted in 1992); the Permanent Court of Arbitration Optional Rules for
Arbitrating Disputes between Two Parties of Which Only One Is a State (1993);
and the Permanent Court of Arbitration Optional Rules for Conciliation of
Disputes Relating to Natural Resources and/or the Environment (2002).
[925]
See www.tas-cas.org.
[926]
Make Consumers Count
- A New Direction for Irish Consumers (Report of the Consumer Strategy
Group April, Forfas, 2005) at xiii. Available at www.nca.ie.
[927]
Ramsay "Small
Claims Courts in Canada: A Socio-Legal Appraisal" in Whelan Small
Claims Courts: A Comparative Study (Clarendon Press, Oxford, 1990) at 38.
[928]
Final Report: An
analysis and evaluation of alternative means of consumer redress other than
redress through ordinary judicial proceedings - A Study for the European
Commission (The Study Centre for Consumer Law – Centre for European
Economic Law, Belgium, 2007) at 26. Available at
ec.europa.eu/consumers/redress/reports_studies/comparative_report_en.pdf.
[929]
Make Consumers Count
- A New Direction for Irish Consumers (Report of the Consumer Strategy
Group April, Forfas, 2005) at 45.
[930]
Final Report: An
analysis and evaluation of alternative means of consumer redress other than
redress through ordinary judicial proceedings - A Study for the European
Commission (The Study Centre for Consumer Law – Centre for European
Economic Law, Belgium, January 2007) at 6.
[931]
Special Eurobarometer Consumer
protection in the Internal Market at 33 (2006,) available at http://ec.europa.eu/public_opinion/archives/ebs/ebs252_en.pdf.
See generally: Gwith “Non Litigation-Based Redress for International Consumer
Transactions Is Not Cost Effective - A Case for Reform” (2006) 3 Macquarie J
Bus L 115; and Finkle and Cohen “Consumer Redress through Alternative Dispute
Resolution and Small Claims Court: Theory and Practice” (1993) 13 Windsor Y B
Access Jus 81.
[932]
See below, paragraph
8.14.
[933]
See below, paragraph
8.44.
[934]
Se below, paragraphs
8.29 to 8.36.
[935]
Final Report: An analysis
and evaluation of alternative means of consumer redress other than redress
through ordinary judicial proceedings - A Study for the European Commission
(The Study Centre for Consumer Law – Centre for European Economic Law,
Belgium, 2007) at 46.
[936]
See Slattery “Consumer
Protection Bill 2007” (2007) 14(5) CLP 95; and O’Neill “The Consumer Protection
Act 2007 – Enforcing the New Rules” (2008) 26 ILT 46.
[937]
Make Consumers Count - A
new Direction for Irish Consumers (Report of the Consumer Strategy Group
April, Forfas, 2005) at 67.
[938]
In 1997, the Australian
Competition and Consumer Commission (ACCC) issued Benchmarks for Dispute
Avoidance and Resolution which is aimed at assisting small businesses in
dealing with problems involving consumer complaints. In 2002, Industry Canada,
acting on behalf of the federal, provincial and territorial ministers
responsible for consumer affairs, published Consumer Complaints Management.
A Guide for Canadian Business. In 2004, the UK Office of Fair Trading
issued Guidance on the Core Criteria for the Consumer Codes Approval Scheme
(CCAS) which provides some important recommendations with respect to
complaint handling schemes.
[939]
Make Consumers Count - A
New Direction for Irish Consumers (Report of the Consumer Strategy Group
April, Forfas, 2005) at 71.
[940]
Final Report: An analysis
and evaluation of alternative means of consumer redress other than redress
through ordinary judicial proceedings - A Study for the European Commission
(The Study Centre for Consumer Law – Centre for European Economic Law,
Belgium, 2007) at 47.
[941]
The Consumers' Association of
Ireland Ltd. (CAI) was set up in 1966 to protect and educate consumers. It is
the aim of CAI to represent consumers making sure that their needs as consumers
of goods and services are given higher priority. The CAI does not have a
role in obtaining redress for consumers. See www.consumerassociation.ie.
[942]
Directive 2005/29/EC.
[943]
See the Commission’s Report
on Multi-Unit Developments (LRC 90-2008), Introduction, paragraphs 7 and 8.
[944]
Ibid, Introduction,
paragraph 28.
[945]
The case study is based on
information at www.nca.ie. (Press releases of 13 May and 14 May 2008).
[946]
See paragraphs 2.64-2.110
above for a detailed discussion of the Ombudsman schemes which have been
established in Ireland.2.65
[947]
See paragraphs 8.14 to 8.17
above.
[948]
See www.comreg.ie.
[949]
See www.cer.ie.
[950]
See www.taxireg.ie.
[951]
See www.aviationreg.ie.
[952]
See www.ifsra.ie.
[953]
See Financial Regulator’s
Consumer Protection Code at http://www.ifsra.ie/data/pub_files/Code_Doc_rollover-4-2.pdf.
For further information on the Consumer Protection Code see Donnelly “The
Consumer Protection Code: A New Departure in the Regulation of Irish Financial
Services Providers (2006) 13 CLP 11 271.
[954]
See www.agriappeals.gov.ie.
[955]
See www.appealcommissioners.ie.
[956]
See www.socialwelfareappeals.ie.
[957]
See www.appeal.ie.
[958]
See www.reci.ie.
[959]
See www.iei.ie.
[960] See www.cif.ie.
[961]
See www.imo.ie.
[962]
See www.asai.ie. The
establishment of the ASAI can be seen as a response to the enactment of the Consumer
Information Act 1978 since replaced by the Consumer Protection Act
2007 which established the National Consumer Agency.
[963]
This Code is set out in the
ASAI Manual of Advertising Self-Regulation (6th ed 2007).
Available at http://www.asai.ie/asai%20codebook.pdf.
[964]
SIMI has approximately 1700
members within the motor industry and represents distributors, dealers,
repairers together with ancillary groupings such as parts wholesalers and
retailers. See www.simi.ie.
[965]
See Hamilton “Pre-Dispute
Consumer Arbitration Clauses: Denying Access to Justice” (2005) 51 McGill L J
693.
[966]
See White “A Fair Deal For the
Holiday Consumer” (1991) 9 ILT 92.
[967]
A subsidiary of the Chartered
Institute of Arbitrators. See www.idrs.ltd.uk.
[968]
See www.cisas.org.uk and
Drahozal and Friel “Consumer Arbitration in the European Union and the United
States” (2002) NCJ Int’l L & Com Reg 357.
[969]
See Doyle, Ritters and Brooker
Seeking resolution the availability and usage of consumer-to-business
alternative dispute resolution in the United Kingdom (Department for
Business, Enterprise and Regulatory Reform, January 2004).
[970]
Ibid. at 74.
[971]
See Working Document on the
creation of a European Extra-Judicial Network (European Commission, 2000),
available at
http://ec.europa.eu/consumers/policy/developments/acce_just/acce_just07_workdoc_en.pdf.
[972]
See www.eccdublin.ie.
[973] European
Consumer Centre Ireland Annual Report 2007 (ECC Ireland, 2008) at 3.
Available at http://www.eccdublin.ie/publications/reports/annual_reports/Annual_Report_2007.pdf.
[974]
European Consumer Centre
Ireland Annual Report 2007 (ECC Ireland, 2008) at 11. Available at
http://www.eccdublin.ie/publications/reports/annual_reports/Annual_Report_2007.pdf.
[975]
Ibid. at 17.
[976]
Ibid.
[977]
A notified ADR body is one
that complies with one of two European Commission Recommendations (98/257/EC
and 2001/310/EC) and is notified to the European Commission by the Department
of Enterprise, Trade and Employment. See http://www.entemp.ie/commerce/consumer/nomination.htm#ADR_Ireland.
[978]
The development of Alternative Dispute Resolution (ADR) in Ireland: An
analysis of complaints, best practice and future recommendations (ECC Ireland, 2008) at 4. Available at
http://www.eccdublin.ie/publications/reports/ecc_reports/ECC_Ireland_ADR_Report_May08.pdf.
[979]
Ibid. at 5.
[980]
See also Barnford “Mechanisms
for resolving European cross-border consumer queries” (2004) 154 NLJ 7145
[981]
The development of Alternative Dispute Resolution (ADR) in Ireland: An
analysis of complaints, best practice and future recommendations (ECC Ireland, 2008) at 7. Available at http://www.eccdublin.ie/publications/reports/ecc_reports/ECC_Ireland_ADR_Report_May08.pdf.
[982]
Ibid.
[983]
Ibid.
[984]
The development of Alternative Dispute Resolution (ADR) in Ireland: An
analysis of complaints, best practice and future recommendations (ECC Ireland, 2008) at 4. Available at
http://www.eccdublin.ie/publications/reports/ecc_reports/ECC_Ireland_ADR_Report_May08.pdf
[985]
See www.financialombudsman.ie.
[986]
See
http://ec.europa.eu/internal_market/fin-net/index_en.htm and
http://ec.europa.eu/internal_market/fin-net/docs/adr/ie_ombudsman_en.pdf.
[987]
FIN-NET Activity Report
2007 (European Commission, May 2008). Available at
http://ec.europa.eu/internal_market/fin-net/docs/activity/2007_en.pdf.
[988]
See FIN-NET Memorandum of Understanding on a Cross-Border Out
of- Court Complaints Network for Financial Services in the European Economic
Area at http://ec.europa.eu/internal_market/fin-net/docs/mou/en.pdf.
[989]
Commission Recommendation of
30 March 1998 on the principles applicable to the bodies responsible for
out-of-court settlement of consumer disputes 98/257/EC (Official Journal L 115, 17/04/1998). See
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:115:0031:0034:EN:PDF.
[990]
Commission Recommendation of
30 March 1998 on the principles applicable to the bodies responsible for
out-of-court settlement of consumer disputes 98/257/EC (Official Journal L 115, 17/04/1998). See
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:115:0031:0034:EN:PDF.
[991]
Fin-Net Settling
Cross-Border Financial Disputes Out of Court: Consumer Guide (European
Commission, 2005) at 7.
[992]
FIN-NET Activity Report
2007 (European Commission, May 2008) at 4. Available at
http://ec.europa.eu/internal_market/fin-net/docs/activity/2007_en.pdf.
[993]
Annual Report 2007
Financial Services Ombudsman (Financial Services Ombudsman, 2008) at 10.
Available at
http://www.financialombudsman.ie/about-us/Financial-Ombudsman-2007-Annual-Report-English.pdf
[994]
Regulation (EC) No 861/2007 of
the European Parliament and of the Council of 11 July 2007 establishing a
European Small Claims Procedure. Available at
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:199:0001:0022:EN:PDF.
[995]
Recital 7 of the 2007
Regulation.
[996]
Recital 8 of the 2007
Regulation.
[997]
Article 2 of 2007 Regulation
states that it does not apply to matters concerning: (a) the status or
legal capacity of natural persons; (b) rights in property arising out of a
matrimonial relationship, wills and succession; (c) bankruptcy, proceedings
relating to the winding up of insolvent companies, judicial arrangements,
compositions and analogous proceedings; (d) social security; (e) arbitration;
(f) employment law; (g) Tenancies of immovable property; and (h) violations of
privacy and of rights relating to personality, including defamation.
[998]
Article 4 of the 2007
Regulation.
[999]
Article 5 of the 2007
Regulation.
[1000]
Article 16 of the 2007 Regulation.
[1001]
Article 17 of the 2007
Regulation.
[1002]
Final Report: An analysis
and evaluation of alternative means of consumer redress other than redress
through ordinary judicial proceedings - A Study for the European Commission
(The Study Centre for Consumer Law – Centre for European Economic Law,
Belgium, 2007) at 87.
[1003]
Automated negotiation involves
the parties entering a “blind bidding” procedure whereby they each, in turn,
offer or demand an amount of money. When the amounts of the offer and the
demand are sufficiently close, the case is settled for the arithmetic mean of
the two figures. Cybersettle is the leading company in this field. See
www.cybersettle.com
[1004]
Assisted negotiation involves
the ODR institution providing the parties with a secure site on which to
communicate. As is the case with traditional negotiation, the parties must
reach an agreement themselves with no third party having the capacity to decide
for them. A good example of an assisted negotiation platform is ECODIR.
[1005]
See generally Lesley
“Resolving consumer disputes online: A review of consumer ODR” (2003) 10(8) CLP
207; Schultz “Connect Complaint Processes to Online Resolution Systems” (2003)
10 (11) CLP 307; Solovay and Reed The Internet and Dispute Resolution:
Untangling the Web (Law Journal Press, 2003); Goodman “The Pros
and Cons of Online Dispute Resolution: An Assessment of Cyber-Mediation
Websites” 2003 Duke L & Tech Rev 0004; Katsh and Rifkin Online
Dispute Resolution: Resolving Disputes in Cyberspace (Jossey-Bass, 2001);
and Wahab “Globalisation And ODR: Dynamics Of Change In E-Commerce Dispute
Settlement” (2004) 12 International Journal of Law and IT 123.
[1006]
Cortés “Adapting Irish Small
Claims Procedure” (2007) 10 Cork Online Law Review. Available at
http://www.mercuryfrost.net/colr/index.php.
[1007]
See www.ecodir.org.
[1008]
See Chapter 3, above at 3.03.
[1009]
Information supplied to the
Commission by Brian Huchinson, ECODIR, University of Dublin.
[1010]
www.TheInternetOmbudsman.com
is a new service offered by www.TheMediationRoom.com that applies technology to
resolve consumer complaints and claims online.
[1011]
The development of Alternative Dispute Resolution (ADR) in Ireland: An
analysis of complaints, best practice and future recommendations (ECC Ireland, 2008) at 10. Available at
http://www.eccdublin.ie/publications/reports/ecc_reports/ECC_Ireland_ADR_Report_May08.pdf.
[1012]
See
www.iris.sgdg.org/mediation.
[1013]
See
www.isoc.be/safeinternet/bir.htm.
[1014]
See www.ombudsmann.de.
[1015]
See www.camera-arbitrale.it.
[1016]
Building Trust through the
Legal Framework (Report by the Information Society Commission Legal Affairs
Group, December 2002) at 24. Available at http://www.isc.ie/downloads/legal.pdf.
[1017]
Legislating for Competitive
Advantage in e-Business and Information & Communications Technologies (Forfas,
2002). Available at http://www.forfas.ie/publications/ebus_ict_leg02/021029_ebusiness_ict_leg_72dpi_s.pdf.
[1018]
See ICT Strategy for the
Courts Service 2000-2010, available at www.courts.ie.
[1019]
Now regulated by the District
Court (Small Claims Procedure) Rules1999 (S.I. No. 191 of 1999) which
inserted O53A into the District Court Rules 1997 (SI no. 93 of 1997).
See Bird “Small Claims Procedure in the District Court” (1992) 10 ILT 35; and
McHugh Small Claims Court in Ireland: A Consumer’s Guide (FirstLaw,
2003).
[1020]
Make Consumers Count - A
New Direction for Irish Consumers (Report of the Consumer Strategy Group
April, Forfas, 2005) at 51.
[1021]
Courts Service Annual
Report 2007 at 25. See www.courts.ie.
[1022]
Cortés “Adapting Irish Small
Claims Procedure” (2007) 10 Cork Online Law Review. Available at
http://www.mercuryfrost.net/colr/index.php.
[1023]
Courts Service Annual
Report 2007 at 25. See www.courts.ie.
[1024]
Report of the Legal Costs
Implementation Advisory Group (Department of Justice, Equality and Law
Reform, 2006). See
http://www.justice.ie/en/JELR/LegalCostsImpGrp.pdf/Files/LegalCostsImpGrp.pdf.
[1025]
Law Reform Commission Report on
Multi-Unit Developments (LRC 90-2008) at 167.
[1026]
See www.arn.se.
[1027]
See
http://www.forbrug.dk/english/complaints-board/about-the-consumer-complaints-board/.
In the Netherlands, the Foundation for Consumer Complaints Boards (Stichting
Geschillencommissies voor Consumentenklachten) groups over 41 consumer
complaint boards in various economic areas, which are made up of independent
arbitrators and technical experts. Decisions of the complaints boards are
binding and final. See
http://www.ser.nl/~/media/Files/Internet/Consumentenvoorwaarden/Engels/Presentation_De_Geschillencommissie.ashx.
[1028]
See The development of Alternative Dispute Resolution (ADR) in Ireland: An
analysis of complaints, best practice and future recommendations (ECC Ireland, 2008) Available at http://www.eccdublin.ie/publications/reports/ecc_reports/ECC_Ireland_ADR_Report_May08.pdf.
[1029]
Ibid.
at 13.
[1030]
See
http://www.norway.ie/policy/family/consumer/policy.htm.
[1031]
See http://forbrukerportalen.no/Emner/engelsk_fransk.
[1032]
The
development of Alternative Dispute Resolution (ADR) in Ireland: An analysis of
complaints, best practice and future recommendations (ECC Ireland, 2008) at 13. Available at http://www.eccdublin.ie/publications/reports/ecc_reports/ECC_Ireland_ADR_Report_May08.pdf.
[1033]
Ibid.
at 14.
[1034]
Ibid.
[1035]
The
development of Alternative Dispute Resolution (ADR) in Ireland: An analysis of
complaints, best practice and future recommendations (ECC Ireland, 2008) at 15 Available at http://www.eccdublin.ie/publications/reports/ecc_reports/ECC_Ireland_ADR_Report_May08.pdf.
[1036]
The need to develop ADR in
Ireland (ECC Ireland, 2003) at 14.
[1037]
Commercial and Consumer Tribunal
Annual Report 2006-2007 (Queensland Government 2007). Available at
http://www.tribunals.qld.gov.au/Registry/cct_annual_report_06-07%20final.pdf.
[1038]
Commercial and Consumer Tribunal
Annual Report 2006-2007 (Queensland Government 2007) at 6. Available at http://www.tribunals.qld.gov.au/Registry/cct_annual_report_06-07%20final.pdf.
[1039]
Carnwath LJ in Ali v
Lane EWCA Civ 1532, [2007] 2 EG 126.
[1040]
Semayne's
Case (1604) 77All ER 194.
[1041]
Kaye “Neighbour and
Boundary Disputes” (February 2006). Online article available at
http://www.lindermyers.co.uk/article.asp?id=221.
[1042]
Clancy “Mediation as a
Methodology to Resolve Boundary Disputes in Ireland”. Paper presented at
the Land Registration Perspective on Mediation as a methodology to resolve
boundary disputes in Ireland Conference (Dublin Institute of Technology,
December 2005).
[1043]
“Circuit Court Judge
Likens Case to The Field”, Wicklow People, March 18 2004. Available at
www.wicklowpeople.ie.
[1044]
“Judge advises families
to bury the hatchet in dispute over right of way”, Carlow People, 5
April 2007. Available at www.carlowpeople.ie.
[1047]
Powell “Boundary
Dispute Resolution in England & Wales –Surveyors and Lawyers Working
Together to Resolve Problems” (February 2005) International Federation of
Surveyors. Online article available at
http://www.fig.net/pub/monthly_articles/february_2005/powell_february_2005.pdf.
[1048]
O’Donnell “Mediation Overview:
Pleadings and What They Mean”. Paper presented at the Dispute Resolution
Symposium organised by Engineers Ireland. (Dublin, April 2007) at 2.
Available at www.engineersireland.ie.
[1049]
The Commission notes that
sections 41 to 45 of the Land and Conveyancing Law Reform Bill 2006 (which
derives from the Report on the Reform and Modernisation of Land Law and
Conveyancing Law (LRC 74-2005)) provide for a process in the District Court
for carrying out work between adjoining property. When enacted, these
provisions may assist where disputes cannot be resolved though ADR.
[1050]
[1999] E.W.C.A. (Civil
Division) (March 25, 1999).
[1051]
[1999] E.W.C.A. (Civil
Division) (March 25, 1999).
[1052]
[2005] EWCA 405 (Civil
Division) (14 April, 2005).
[1053]
See Smith “Mending Fences”
(2007) 104 Law Society Gazette 32.
[1054]
[2006] EWCA Civ 1532; [2007] 02 EG 126.
[1055]
[2007] EWCA Civ 78; [2007] 12 EG 156.
[1056]
2006 No.4266P, High Court, 8
to 11 April 2008 (hearing of action) and 15 April 2008 (settlement after
mediation). The accounts given are based on reports in The Irish Times and
Irish Independent, 9 to 12 April 2008 and 16 April 2008.
[1057]
Ms Justice Clark quoted in
Black and Healy “Judge Makes Plea for Peace in Kenny Land War”, 12th
April 2008, The Irish Independent. Available at
http://www.independent.ie/national-news/judge-makes-a-plea-for-peace-in-kenny-land-war-1345782.html.
[1058]
See Chapter 7, above.
[1059]
See Chapter 5, above.
[1060]
Managing Partnership:
Enabling Tenant Participation in Housing Estate Management. (The Department
of the Environment and Local Government and The City and County Managers
Association, October 2001). Available at www.environ.ie.
[1061]
See Recommendation 27 and 35
of Managing Partnership: Enabling Tenant Participation in Housing Estate
Management. (The Department of the Environment and Local Government and The
City and County Managers Association, October 2001) at 57 and 67 respectively.
[1062]
See also the Royal Institution
of Chartered Surveyors (UK) Dispute Resolution Services which has created an
innovative form of ADR that is specifically designed to resolve boundary and
other neighbour disputes. The Neighbour Disputes Service has 3 stages. Each
stage is designed to resolve a dispute with finality. Information on the
service is available at www.rics.org/Services/Disputeresolution.
[1063]
New South Wales Law Reform
Commission Report on Community Justice Centres (Report No. 106, 2005) at
11. See also See also New South Wales Law Reform Commission Issues Paper Community
Justice Centres (No. 23, 2003); New South Wales Law Reform Commission
Research Report Mediation and Community Justice Centres: An Empirical Study
(No. 12, 2004); New South Wales Law Reform Commission Report Community
Justice Centres (No. 106, 2005); McGillis, Community Mediation Programs:
Developments and Challenges (US National Institute of Justice, 1997);
Faulkes and Claremont, “Community Mediation: Myth and Reality” (1997) 8 Australian
Dispute Resolution Journal 177.
[1064]
See the Northside Community
Law Centre website at www.nclc.ie.
[1065]
Northside
Community Mediation Course”, Northside Community
Law Centre Newsletter (October 2007) Issue 11 at 1-2.
[1066]
See the Ballymun Community Law
Centre website at www.bclc.ie.
[1067]
Ibid.
[1068]
The 2004 Act implemented the
recommendations in the 2000 Report of the Commission on the Private Rented
Residential Sector (Department of the Environment and Local Government).
Available at www.environ.ie.
[1069]
Section 76 of the 2004 Act.
Examples of the issues the PRTB deal with are: refund or retention of deposits;
the charging of rents above market rent; timing of rent reviews; failure
to follow the correct procedure to terminate a tenancy; and invalid reasons for
terminating a tenancy.
[1070]
Private Residential
Tenancies Board Annual Report 2006 (2007) at 17.
[1071]
Section 95 of the 2004 Act.
[1072]
Section 102 of the 2004 Act.
[1073]
See paragraph 2.129, above.
[1074]
Section 101(1)(a) of the 2004 Act.
See also section 112 of the 2004 Act.
[1075]
Section 101(1)(b) of the 2004
Act.
[1076]
Section 101(1)(c) of the 2004
Act.
[1077]
Section 93 of the 2004 Act.
[1078]
Section 97 of the 2004 Act.
[1079]
Section 123 of the 2004 Act.
[1080]
Section 104 of the 2004 Act.
[1081]
Section 103 of the 2004 Act.
[1082]
Section 106 of the 2004 Act.
[1083]
Section 105 of the 2004 Act
sets out provisions in relation to evidence and the summoning of witnesses.
[1084]
Section 104(6) of the 2004
Act.
[1085]
Section 123 of the 2004 Act.
[1086]
Section 126 of the 2004 Act.
[1087]
Section 34 of the 2000 Act.
[1088]
Section 50 of the 2000 Act.
[1089]
Summary of Annual Planning
Statistics 2006 (Department of the Environment, Heritage and Local
Government, 2007). Available at
http://www.environ.ie/en/Publications/StatisticsandRegularPublications/PlanningStatistics/filedownload,15333,en.doc.
[1090]
Ibid.
[1091]
Morgan & O’Connor
“Resolving property disputes, Universal service – a value for money solution?”
(2003) 10(4) CLP 96.
[1092]
[2001] E.W.C.A. (Civil
Division) 1935 (14 December 2001).
[1093]
Mediation in the Planning
System (Department for Communities and Local Government May 2000).
Available at www.communities.gov.uk.
[1094]
See Morgan and O’Connor
“Resolving property disputes, Universal service – a value for money solution?”
(2003) 10(4) CLP 96.
[1095]
Ibid. See Mediation
in the Planning System (Department for Communities and Local Government May
2000) at 4.3.1. Available at www.communities.gov.uk.
[1096]
Ibid.
[1097]
Ibid.
[1098]
Welbank Further Research
into Mediation in the Planning System (Department for Communities and Local
Government, 2003).
[1099]
The Land and Environment Court
of New South Wales also offers a mediation facility which has been available
since 1991. The service is free, voluntary and confidential to parties involved
in disputes before the Court.
[1100]
See Carey “Credentialing
for Mediators – To Be or Not to Be” (1995) 30 USF L Rev 635; Sundermann “The
Dilemma of Regulating Mediation” 22 (1985) Hous L Rev 841; Dobbins “Debate over
Mediator Qualifications: Can They Satisfy the Growing Need to Measure
Competence” (1994) 7 U Fla J L & Pub Pol’y 95; and Pou “Assuring
Excellence, or Merely Reassuring – Policy and Practice in Promoting Mediator Quality”
(2004) J Disp Resol 303.
[1101]
Law Reform Commission of
New South Wales Discussion Paper on Alternative Dispute Resolution: Training
and Accreditation of Mediators (DP 21 -1989). Available at www.lawlink.nsw.gov.au.
[1102]
Ibid. at 3.1.
[1103]
Ibid. at 3.2.
[1104]
Law Reform Commission of
New South Wales Report on Training and Accreditation of Mediators
(Report 67 – 1991) at 3.6.
[1105]
Spurin “ Accrediting
Mediators” (2004) 4 ADR News – The Nationwide Academy of Dispute Resolution
Newsletter 1 at 6.
[1106]
See www.lawlibrary.ie
[1107]
See www.arbitration.ie
[1108]
See www.friarylaw.ie.
[1109]
See www. www.adr.org.
[1110]
See www.lawsociety.ie
[1111]
See www.mediationforumireland.com.
[1112]
See www.themii.ie.
[1113]
Article 2 of the Mediators
Institute of Ireland’s Memorandum of Association. Available at
http://www.themii.ie/documents/MEMO%20&%20ARTS.pdf.
[1114]
Ibid.
[1115]
Ibid.
[1116]
See www.themii.ie.
[1117]
For more information on the
MII’s disciplinary, appeals and complaints procedures see http://www.themii.ie/governance.jsp.
[1118]
Mediation Accreditation in
Australia Report to The 8th National Mediation Conference,
Australia, 3-5 May 2006. Available at http://www.mediationconference.com.au/html/Accreditation.html.
[1120]
See Report to the
Commonwealth Attorney- General: A Framework for ADR Standards, (National
Alternative Dispute Resolution Advisory Council, 2001); Mediation
Accreditation in Australia Report to the 8th National Mediation
Conference, Australia, 3-5 May 2006. Available at
http://www.mediationconference.com.au/html/Accreditation.html; Sourdin “Australian
National Mediator Accreditation System: Report on Project” (2007),
available at http://www.leadr.com.au/documents/Report%20on%20Project.pdf.
[1121]
An RMAB can be a professional
body, a mediation agency or Centre, a Court or Tribunal, or some other entity.
See Approval Standards for Mediators Seeking Approval under the National
Mediator Accreditation System of 2007 at article 3.5. Available at http://www.leadr.com.au/documents/Approval%20standards.pdf.
[1122]
Approval Standards for
Mediators Seeking Approval under the National Mediator Accreditation System
of 2007 at article 3.5. Available at http://www.leadr.com.au/documents/Approval%20standards.pdf.
[1123]
Ibid. at article 3.
[1124]
Practice Standards for
Mediators Seeking Approval under the National Mediator Accreditation System of
2007. Available at http://www.leadr.com.au/documents/Practice%20standards.pdf.
[1125]
Approval Standards for
Mediators Seeking Approval under the National Mediator Accreditation System of
2007 at article 1.2. Available at http://www.leadr.com.au/documents/Approval%20standards.pdf.
[1126]
Ibid. at article 2.
[1127]
See paragraph 2.128, above.
[1128]
Approval Standards for
Mediators Seeking Approval under the National Mediator Accreditation System of
2007 at article 1.2. Available at http://www.leadr.com.au/documents/Approval%20standards.pdf.
[1129]
Practice Standards for
Mediators Seeking Approval under the National Mediator Accreditation System of
2007 at article 9. Available at
http://www.leadr.com.au/documents/Practice%20standards.pdf.
[1130]
Ibid. at article 7.
[1131]
Ibid. at article 6.
[1132]
See www.civilmediation.org.
[1133]
Article 26 of the Civil
Mediation Council’s Constitution, available at
http://www.civilmediation.org/constitution.php.
[1134]
See Kelbie and Dingle “Mediation
Standards and Quality Accrediting Mediation Provider Organisations - The UK
Civil Mediation Council Pilot Scheme”. Paper presented at the European
Mediation Conference September 2007, Austria.
[1135]
See www.familymediationcouncil.org.uk.
[1136]
See www.familymediationhelpline.co.uk. See paragraph
5.165, above.
[1137]
Article 5 of the Family
Mediation Council Constitution. Available at
http://www.familymediationcouncil.org.uk/constitution.htm.
[1138]
See www.adrcanada.ca.
[1139]
Model Code of Conduct for
Mediators (ADR Institute of Canada Inc., 2005). Available at
http://www.adrcanada.ca/rules/national_code_of_conduct.pdf.
[1140]
See paragraph 2.128, above.
[1141]
Model Code of Conduct for
Mediators (ADR Institute of Canada Inc., 2005). Available at
http://www.adrcanada.ca/rules/national_code_of_conduct.pdf.
[1142]
See www.imimediation.org.
[1143]
Available at
http://www.cpradr.org/pdfs/finalProvider.pdf.
[1144]
Available at http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf.
See paragraph 1.67, above.
[1145]
Available at www.acrnet.org/pdfs/ModelStandardsofConductforMediatorsfinal05.pdf.
[1146]
Available at
http://www.lawcouncil.asn.au/policy/1957353025.html.
[1147]
See paragraph 2.128, above.
[1148]
See Noce “Beaten Path to
Mediator Quality Assurance: The Emerging Narrative of Consensus and its
Institutional Functions” (2003) 19 Ohio St J on Disp Resol 937.
[1149]
Supreme Court Rule 31, s.
13(b)1 — 6.
[1150]
Available at
http://www.afccnet.org/pdfs/modelstandards.pdf
[1151]
Available at http://www.abanet.org/dispute/news/ModelStandardsofConductforMediatorsfinal05.pdf
[1152]
ZivMediatG 2004, section 16.
[1153]
Candidates may come from any
professional background. However, members of certain professions, such as
lawyers, financial trustees, social workers, are able to undergo a reduced
training course as a result of their specific professional experience.
[1154]
Singer The EU Mediation
Atlas: Practice and Regulation (LexisNexis 2004) at 6.
[1155]
Training programmes in Germany
also require 200 hours training.
[1156] See also
Moberly “Dispute Resolution in the Law School Curriculum: Opportunities and
Challenges” (1998) 50 Fla L Rev 583; and Nelson “Alternative Dispute
Resolution: A Supermart for Law Reform” (1984) 14 N M L Rev 467 at 479,
[1157]
The Australian Law Reform
Commission Report on Managing Justice A review of the federal civil justice
system (Report No. 89 -1999) at 8-9. Available at
http://www.austlii.edu.au/au/other/alrc/publications/reports/89/.
[1159]
See www.lawsociety.org.uk.
[1160]
See also Breger “Should an
Attorney Be Required to Advise a Client on ADR Options?” (2000) 13 Georgetown
Journal of Legal Ethics 427.
[1161]
See paragraph 7.25,
above.
[1162]
See paragraph 9.24,
above.
[1163]
See paragraph 5.44,
above.
[1164]
Corbett “Mediations in
Actions for Personal Injury: Is it Good to Talk?” in Binchy and Craven,
Civil Liability and Courts Act 2004: Implications for P.I. Litigation (FirstLaw,
2005) at 103.
[1165]
Keane “Cost of Saying
No” (2005) Law Society Gazette at 28-33.
[1166]
See Lord Woolf, Access
to Justice, Interim Report (1995) and Lord Woolf, Access to Justice
Final Report (1996).
[1170]
[2003] EWHC (Ch) 3006.
[1172]
See Fielding “Mediation
post-Halsey” (2004) 154 NLJ 7145.
[1173]
See paragraph 11.54, below.
[1174]
[2004] EWCA (Civ) 576 at para. 9.
[1175]
White Book (Civil Procedure
(2003 edn)) vol 1 at 27 para 1.4.11.
[1176]
Lightman Breaking down the
barriers” The Times July 31 2007. Available at
http://business.timesonline.co.uk/tol/business/law/article2166092.ece.
[1177]
Ibid.
[1178]
See the discussion of case law
in New South Wales and the United States, below.
[1179]
Ibid. See also Sautter
“Halsey-mediation one year on” (2005) 155 NLJ 7176.
[1180]
[2001] NSWSC 209 (28 March
2001).
[1181]
[2001] NSWSC 1208 (14 December
2001).
[1182]
[2001] NSWSC 13.
[1183]
[2001] NSWSC 714.
[1184]
304 F.3d 135 (2002).
[1185]
Speech by Sir Anthony Clarke,
Master of the Rolls, at the Civil Mediation Council's National Conference in
Birmingham on The Future of Civil Mediation (8th May, 2008).
Available at http://www.judiciary.gov.uk/publications_media/speeches/index.htm.
[1186]
See paragraph 3.92, above.
[1187]
Order 99 Rule 1(4) of the Rules
of the Superior Courts 1986.
[1188]
Speech by Sir Anthony Clarke,
Master of the Rolls, at the Civil Mediation Council's National Conference in
Birmingham on The Future of Civil Mediation (8th May, 2008).
Available at http://www.judiciary.gov.uk/publications_media/speeches/index.htm.
[1189]
High Court, 2 December 2005.
See Dowling The Commercial Court (Thomson Round Hall 2007).
[1190]
See paragraph below on
mediator reporting to the Court.
[1191]
Boettgger “Efficiency Versus
Party Empowerment – Against a Good-Faith Requirement in Mandatory Mediation”
(2004) 23 Rev. Litig. 1 at 2. See also Biller “Good Faith Mediation:
Improving Efficiency, Cost, and Satisfaction in North Carolina's Pre-Trial
Process” (1996) 18 Campbell L Rev 281.
[1192]
Lande “Using Dispute System
Design To Promote Good-Faith Participation in Court-Connected Mediation
Programs” (2002) 50 UCLA L Rev 69 at 87.
[1193]
Ibid. See Zylstra “Road
from Voluntary Mediation to Mandatory Good Faith Requirements: A Road Best Left
Untraveled” (2001) 17 J Am Acad Matrimonial Law 69.
[1194]
See
www.abanet.org/dispute/webpolicy. See also Izumi and La Rue “Prohibiting Good
Faith Reports under the Uniform Mediation Act: Keeping the Adjudication Camel
out of the Mediation Tent” (2003) J Disp Resol 67.
[1195]
Kovach “Good Faith in
Mediation – Requested, Recommended or Required? A New Ethic” (1997) 38 STexLRev
575 at 598.
[1196]
Boettgger “Efficiency Versus
Party Empowerment – Against a Good-Faith Requirement in Mandatory Mediation”
(2004) 23 Rev. Litig. 1 at 41.
[1197]
O’Donnell “Mediation Overview:
Pleadings and What They Mean”. Paper presented at the Dispute Resolution
Symposium organised by Engineers Ireland. (Dublin, April 2007) at 5.
Available at www.engineersireland.ie.
[1198]
[1998] QB 498, [1997] 2 All ER 762, [1997] 3 WLR 420.
[1199]
Ibid. Lord Woolf MR at
para. 14.
[1201] Ibid.
at para. 1.
[1202]
See James “Litigation Or Mediation?
The Implications of The Cowl Decision” (2002) 2.3 Elder Law & Finance
77.
[1203]
Lord Woolf at para. 27.
[1204]
[2002] EWCA Civ 2002.
[1205]
Carey “Court Reforms, ADR and
Costs Consequences — Lessons for Ireland?” (2002) 20 ILT 246.
[1206]
See Dowling Hussey “The rule
in Dunnett v Railtrack clarified?” (2005) 12(7) CLP 186 .
[1207]
Brooke LJ at paragraph 14.
[1208]
A number of cases since Dunnett
have taken a similar approach. In Etherton in Malkins Nominees v
Society Finance [2002] EWHC 1221 a 15% deduction in recoverable costs was
imposed for a failure by the winning claimant to take part in mediation. In Neal
v Jones Motors [2002] EWCA Civ 1730 the Court of Appeal reduced the
recovery of costs by £5,000 to reflect the impact of refusing to mediate.
By contrast in Boyd v Ministry of Defence [2003] ADR.L.R. 12/16
the Court held that the case was clearly heading for a full trial in any case
and thus refused to impose a costs penalty for refusing to accept the late
offer to mediate. See also Royal Bank of Canada Trust Ltd v Secretary of
State for Defence [2003] EWHC 1479; Corenso Ltd v The
Burnden Group plc [2003] EWHC 1805; Leicester Circuits v Coates
Brothers plc [2003] EWCA Civ 333; Allen v Jones
[2004] EWHC 1189; and McMillam Williams v Range [2004] EWCA Civ 294.
[1209]
Carey “Court Reforms, ADR and
Costs Consequences — Lessons for Ireland?” (2002) 20 ILT 246.
[1212]
[2002] EWCA Civ 2002.
[1214]
Dyson LJ at para. 17.
[1215]
Ibid.
[1216]
Dyson LJ at para. 18.
[1217]
Dyson LJ at para. 22.
[1218]
Dyson LJ at para. 28.
[1219]
Lightman “Breaking down the
barriers” The Times July 31 2007, available at
http://business.timesonline.co.uk/tol/business/law/article2166092.ece.
[1220]
The Halsey guidelines have
largely been followed in later decisions. In Reed Executive plc v Reed
Business Information Ltd. [2004] EWCA Civ 887 the Court in applying
Halsey held that there had been a large distance between the positions of the
parties and there were novel issues that required a judicial determination,
rendering the prospects of mediation poor. In Wills v Mills Solicitors [2005]
EWCA Civ 591, the defendants had not unreasonably failed to mediate since it
would not have been practicable to do so without knowing the full grounds of
the claim and the nature of the evidence to be relied upon by the defendant.
In Askey v Wood [2005] EWCA Civ 574 the Court held that in
order for a party to meaningfully engage in mediation, the parameters of a
dispute need to be set out clearly. If they are not a party will not be subjected
to cost penalties for failing to mediate or failing to settle.
[1221]
Dyson LJ in Halsey at
para. 14.
[1223]
Jack J at para. 72.
[1224]
Speech delivered by The Hon.
Warren Winkler Chief Justice of Ontario “Access to Justice, Mediation:
Panacea or Pariah?” (2007). Available at
http://www.ontariocourts.on.ca/coa/en/ps/speeches/access.htm.
[1225]
Speech by Sir Anthony Clarke,
Master of the Rolls, at the Civil Mediation Council's National Conference in
Birmingham on The Future of Civil Mediation (8th May, 2008).
Available at http://www.judiciary.gov.uk/publications_media/speeches/index.htm.
[1228]
Carle “United Kingdom: The
Costs Of Mediation – Who Picks Up The Tab At The End Of The Day?” (March 2008),
online article available at http://www.mondaq.com/article.asp?articleid=58414.