Consultation Paper on Alternative Dispute Resolution

Wednesday, 30th July 2008 | 0 comments
Filed under: 2008.


Wednesday 30th July 2008:  The Law Reform Commission’s Consultation Paper on Alternative Dispute Resolution will be launched by the Hon Mr Justice Peter Kelly, judge of the High Court, at the Commission’s offices at 6 pm this evening.

The Consultation Paper being published today forms part of the Commission’s Third Programme of Law Reform 2008-2014, under which the Commission is committed to examining the main processes of alternative dispute resolution (ADR) and associated key principles and to exploring options for their reform. The Consultation Paper makes 50 provisional recommendations on ADR, in particular on mediation and conciliation.

Main recommendations
The main recommendations in the Consultation Paper are that:

  • There should be a general statutory framework that defines clearly what is meant by mediation (mainly facilitating agreement) and conciliation (facilitating agreement and sometimes also advising the parties about an agreed resolution);
  • Mediation and conciliation should be seen as very different from litigation but should also be considered as part of a fully integrated civil justice system that includes litigation.  Each process plays its appropriate role in meeting the needs of the parties involved and fundamental principles of justice;
  • The key principles of mediation and conciliation should be set out, including their voluntary nature, the ability of the parties to control the process, the need for confidentiality, and the need for transparency and quality control of the process;
  • A court should be able to enforce an agreement made at mediation or conciliation;
  • The training and accreditation of mediators should be based on agreed international standards, building on existing accreditation structures already in place in Ireland.

Growing use of mediation and conciliation
The Consultation Paper examines the growing use of ADR both internationally and in Ireland as reflecting the increasing number of options available to help resolve civil disputes. These disputes include: big commercial and small consumer claims, family breakdown, industrial disputes, medical claims and property disputes (especially boundary disputes).

In Ireland mediation was used in the recent high profile case involving Pat Kenny and Gerald Charlton over the ownership of a strip of land near their two homes; the case was settled by mediation in April after Ms Justice Maureen Clark intervened in the case. Similarly, in 2006 a case between The Dubliners and their record label, EMI, was settled by mediation two days after it was first listed in the Commercial List of the High Court. Not all meditations end with a settlement. The recent dispute between pharmacists and the HSE was not resolved by mediation and has had to return to the Commercial Court this month for a formal hearing.

Speedy resolution and the cost of mediation and conciliation
The Consultation Paper notes that, while ADR processes often provide a speedy resolution to a specific dispute, 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 Paper notes that additional financial costs will be involved where an individual case that goes through an unsuccessful mediation and then requires litigation (as in the pharmacists’ case). On the other hand, this has to be balanced against the possible savings where a complex case is successfully mediated (as in the Pat Kenny and The Dubliners case).

Other detailed recommendations
The Consultation Paper also includes some detailed recommendations on ADR in specific settings. These include:

  • The Commission invites submissions as to whether a statutory Code of Practice or Guidelines should be introduced for collaborative lawyering in the family law setting.
  • The Commission provisionally recommends that a statutory provision be considered to allow medical practitioners to make an apology and admission without these being seen as an admission of liability in a medical negligence claim.
  • The Commission invites submissions as to whether the regulation of mediators should continue as at present on a non-statutory basis, subject to the principles to be set out in a statutory framework for mediation and conciliation.
  • 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.