Alternative Dispute Resolution: (LRC CP 50 - 2008)
Alternative Dispute Resolution: (LRC CP 50 - 2008)
Alternative Dispute Resolution: (LRC CP 50 - 2008)
RESOLUTION
(LRC CP 50 2008)
CONSULTATION PAPER
ALTERNATIVE
DISPUTE
RESOLUTION
(LRC CP 50 - 2008)
COPYRIGHT
July 2008
ISSN 1393 3140
i
iii
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 ODonnell, Senior Counsel
iv
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)
vi
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
vii
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.
viii
TABLE OF CONTENTS
INTRODUCTION
A
B
C
CHAPTER 1
1
Background to the project
The Commissions 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
Outline of Consultation Paper Chapters
1
1
1
2
2
2
3
4
4
5
6
6
D
CHAPTER 2
A
B
C
D
Introduction
Resolution of Disputes
(1) The Nature of Disputes
(2) Dispute Resolution & Civil Justice
(3) Appropriate Dispute Resolution
The Development of ADR: An Overview
(1) ADR in Classical Times
(2) ADR in Traditional Societies
(3) Development of Civil & Commercial ADR
Conclusion
9
9
9
12
15
20
20
21
24
34
37
Introduction
ADR Terminology: An Overview
Definition of ADR
Classification of the ADR Spectrum
37
37
39
40
ix
F
G
I
J
K
CHAPTER 3
A
B
Introduction
Voluntary Nature of ADR Processes
(1) An Overview
(2) Forms of Referral to Mediation or Conciliation
(3) Party-Driven Mediation
(4) Court-Annexed ADR Schemes
(5) Voluntary Schemes v Compulsory Schemes
& the Impact of Costs Sanctions: England &
Wales
(6) Conclusion
Confidentiality
(1) Protection of Confidentiality: An Overview
(2) Agreement Guaranteeing Confidentiality
(3) Without Prejudice Communications
(4) Distinct Mediation Privilege
(5) Conclusion
x
41
42
44
45
46
46
48
49
49
50
50
52
53
54
55
56
67
68
68
69
70
71
73
73
74
74
75
76
80
92
100
101
101
102
102
108
111
G
H
I
J
CHAPTER 4
A
B
C
E
F
Self-Determination
(1) An Overview of Self Determination
(2) Informed Consent
(3) Conclusion
Efficiency
(1) Cost Efficiency
(2) Time Efficiency
(3) Conclusion
Flexibility
(1) Procedural Flexibility
(2) Flexibility of Outcome
Neutrality & Impartiality
Quality and Transparency of Procedure
European Directive and Principles of Mediation
(1) Voluntary Nature of Mediation
(2) Confidentiality
(3) Self Determination
(4) Efficiency
(5) Neutrality & Impartiality of Mediators
(6) Flexibility
(7) Quality & Transparency of Process
(8) Enforceability of Mediated Agreements
(9) Limitation Periods
Conclusion
112
113
114
115
116
117
120
122
122
123
123
124
125
126
127
128
130
130
130
131
131
131
132
133
135
Introduction
Employment Disputes: An Overview
Labour Relations Commission
(1) Conciliation Service
(2) Advisory Services Division
(3) Rights Commissioner Services
(4) Workplace Mediation Service
The Equality Tribunal
(1) Mediation at the Equality Tribunal: An
Overview
(2) Flexibility of Agreements Reached at
Mediation
(3) Conclusion
Labour Court
(1) Main Functions of the Labour Court
Employment Appeals Tribunal
xi
135
135
138
139
143
145
148
150
150
152
154
154
154
157
H
CHAPTER 5
A
B
C
D
E
G
H
I
J
CHAPTER 6
A
B
160
160
161
161
163
Introduction
Information Meetings
(1) The Commission Report on Family Courts
1996
(2) 2007 Courts Service Report on Family Law
Reporting Pilot Project
(3) Models in Other Jurisdictions
Parenting Plans
Counselling
(1) New Zealand
Mediation
(1) Family Mediation: An Overview
(2) Legislative Development of Family Mediation
in Ireland
(3) Family Mediation Service
(4) Issues in Family Mediation
(5) Mediation Schemes in Other Jurisdictions
Collaborative Lawyering
(1) The Collaborative Process
(2) Participation Agreement
(3) Developments in Other Jurisdictions
(4) Conclusion
Case Conferencing in Family Law Disputes
Government Initiatives in England and Wales
(1) Family Mediation Helpline
(2) Mediation Week
(3) Public Awareness Campaign
Mediating Family Probate Disputes
Conclusion
163
163
217
Introduction
Civil Claims: Medical Negligence
(1) Role for ADR in Resolution of Medical
Negligence Disputes: Alternative Dispute
Remedies
217
217
xii
163
165
165
167
172
172
174
174
177
178
179
185
202
204
205
207
211
211
212
213
213
214
214
215
218
C
D
F
CHAPTER 7
A
B
C
E
CHAPTER 8
A
B
C
221
221
224
224
225
226
227
228
228
229
230
231
Introduction
Commercial Dispute Resolution: An Overview
Commercial ADR in Ireland
(1) ADR Clauses in Commercial Contracts
(2) Commercial Court & ADR
(3) ADR Clauses in Irish Government Public
Works Contracts
(4) Shareholder Disputes & ADR
(5) Commercial ADR Schemes & Associations
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
Conclusion
231
231
235
235
239
259
Introduction
Consumer Disputes: An Overview
ADR Mechanisms for Resolving Domestic
Consumer Disputes
(1) Direct Negotiation & Internal Complaints
Handling
Cross Border Consumer Disputes
(1) European Consumer Centre Dublin
(2) FIN-NET and the Financial Services
Ombudsman
259
259
xiii
245
249
251
254
255
255
256
257
257
262
262
271
271
275
F
G
CHAPTER 9
A
B
CHAPTER 10
277
278
279
280
282
284
284
285
285
289
Introduction
Neighbour Disputes & ADR
(1) Nature of Boundary Disputes
(2) Appropriateness of ADR for Resolution of
Boundary Disputes
(3) Role for Mediation in Neighbour Disputes
(4) Conclusion
Landlord & Tenant Disputes
(1) Private Residential Tenancies Board (PRTB)
(2) Mediation and Adjudication at the PTRB
(3) Tenancy Tribunals of the PRTB
(4) Conclusion
Planning Application Disputes & ADR
(1) Planning Applications & ADR: An Overview
(2) Role for ADR in the Planning System:
International Experiences
(3) Summary
289
289
289
Introduction
Accreditation & Regulation of Mediators: An
Overview
(1) Prescribed Bodies under the Civil Liability
and Courts Act 2004
(2) Mediators Institute of Ireland
(3) Family Mediators
Training & Accreditation Systems in Other
Jurisdictions
(1) The Netherlands
xiv
287
291
292
296
297
297
298
299
300
300
300
301
303
305
305
305
308
308
310
310
311
D
E
CHAPTER 11
A
B
D
E
CHAPTER 12
(2) Australia
(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
(7) United States
(8) Austria
Education on ADR
Conclusion
312
315
325
Introduction
Role of the Court in Encouraging ADR
(1) Comparative Review
(2) Conclusion
Costs Sanctions
(1) Costs Sanctions: Good Faith Requirement
& Genuine Effort to Compromise
(2) Costs Sanctions in England & Wales Unreasonable Refusal to Mediate
(3) Conclusion
Mediator Reporting to the Court
Recovery of Mediation Costs
325
325
326
331
332
SUMMARY OF PROVISIONAL
RECOMMENDATIONS
xv
315
316
318
320
320
321
322
333
336
345
346
347
35351
TABLE OF LEGISLATION
1998, No. 14
Irl
1954, No. 26
Irl
1980, No. 7
Irl
2004, No. 21
Irl
1996, c.46
Can
1997, No. 40
Irl
2004, No. 31
Irl
1997, c.12
Eng
2005, No. 28
Aus
2006, c.29
Eng
2007, No. 19
Irl
1954, No. 18
Irl
2005, No. 14
Irl
1985, c.3
Can
2004, No. 30
Irl
1998, No. 21
Irl
2000, No. 8
Irl
2004, No. 24
Irl
1996, No. 33
Irl
1975, No. 53
Aus
1996, c.27
Eng
2006, No. 46
Aus
Aus
1980, No. 94
NZ
2001, No. 54
Irl
xvii
2005, No. 20
Irl
1964, No. 7
Irl
2006, No. 17
Irl
2005, No. 27
Irl
1990, No. 19
Irl
US
1989, No. 6
Irl
2007, No. 25
Irl
2006, No. 21
Irl
2000, No. 5
Irl
US
2004, No. 36
Irl
1980, No. 26
Irl
2002, No. 22
Irl
1997, No. 20
Irl
2002, No. 18
Irl
1990, No. 25
Irl
2003, No. 29
Irl
2001, No. 45
Irl
1967, No. 21
Irl
2004, No. 27
Irl
1965, No. 27
Irl
1977, No. 10
Irl
xviii
TABLE OF CASES
Aus
[1998] 2 All ER 82
Eng
Al-Khatib v Masry
Eng
Barker v Johnson
Eng
Eng
Burchell v Marshall
USA
Burne v 'A'
Eng
Eng
Eng
[1993] AC 334
Eng
Chantrey Vellacott v
Convergence Group plc
Eng
Charlton v Kenny
Irl
Cook v Carroll
[1945] IR 515
Irl
Eng
Cutts v Head
[1984] Ch 290
Eng
[2007] IESC 50
Irl
Dickinson v Brown
Aus
Eng
Eng
Forster v Friedland
Eng
Fyffes v DCC
[2007] IESC 36
Irl
[1995] 3 IR 520
Irl
xix
Eng
Haycocks v Neville
Eng
Hurst v Leeming
Eng
Eng
Eng
[1988] IR 89
Irl
Eng
Aus
Munt v Beasley
Eng
Eng
O'Connor v Lenihan
Irl
[1992] 1 IR 166
Irl
Eng
Aus
Eng
Ryan v Connolly
Irl
Scammell v Dicker
Eng
Scott v Avery
Aus
Eng
[1994] ELR 27
Irl
Thompson v Commissioner of
Police of the Metropolis
[1998] QB 498
Eng
Eng
xx
Eng
Walker v Wilshire
Eng
Waterhouse v Perkins
[2001] NSWSC 13
Aus
xxi
INTRODUCTION
A
1.
This Consultation Paper forms part of the Commissions 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
2.
In preparing this Consultation Paper, the Commissions 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)
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
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.
In the Consultation Paper, the Commission sometimes uses the full title
Alternative Dispute Resolution and sometimes the acronym ADR.
1
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)
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)
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
3
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
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).
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 Commissions Third
Programme of Law Reform 2008-2014, Project 15, concerns restorative justice.
3
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)
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 longestablished mediation and conciliation services of the Labour Relations
Commission and the Labour Court10 almost invariably involve the resolution of
8
10
Collective disputes
Ombudsmen
and
regulatory
bodies,
including
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
11
12
13
14
15
See the discussion of the relevant provisions of the Medical Practitioners Act
2007 in Chapter 6, below.
5
(9)
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 Commissions 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
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.
16
17
The Arbitration Bill 2008 proposes significant reforms of the statutory code on
arbitration.
6
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.
7
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.
CHAPTER 1
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)
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.1 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. 2
Miller & Sarat Grievances Claims and Disputes: Assessing the Adversary
Culture (1980-1981) 15 Law & Society Review 525 at 527.
9
(i)
Development of a Dispute
1.04
Disputes often begin as grievances. A grievance is an individuals
belief that he or she is entitled to a resource which someone else may grant or
deny.3 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.4
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. 5 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 partys claim, for example, if the shop assistant rejects the belief that
product was defective when it was purchased, that a dispute is born. 6
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.7 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.8 Justiciable problems are, for the most part, those that people face in
3
Miller & Sarat Grievances Claims and Disputes: Assessing the Adversary
Culture (1980-1981) 15 Law & Society Review 525 at 527.
Ibid.
Marshall Would ADR Have Saved Romeo and Juliet? (1998) 36 Osgoode Hall
Law Journal 4 at 775.
Miller & Sarat Grievances Claims and Disputes: Assessing the Adversary
Culture (1980-1981) 15 Law & Society Review 525 at 527.
Genn & Paterson Paths to Justice Scotland: What People in Scotland Do and
Think About Going to Law (Hart 2001) at 87.
10
nd
their every day lives, such as child support, consumer, education, employment,
health, and welfare benefits.
(ii)
1.07
The dynamics of a dispute are often compared to an iceberg.9 The
iceberg model below serves to illustrate that only a fraction of the issues in a
dispute are immediately accessible.10 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.11
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 interestbased 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
10
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.
11
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.14
(2)
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
12
13
See Goldberg Sander & Green Dispute Resolution (Little Brown & Co. 1985).
14
Pel Court-annexed Mediation in the Netherlands. The execution of the nationwide 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/B9573CE2503B-4D3A-B281-C6563D459D84/0/JustVerkEngvertalingno9_2000.pdf.
12
of the pyramid to the least common response at its apex. As the pyramid15
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.16 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.
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
15
16
See Galanter Reading the Landscape of Disputes: What We Know and Dont
Know (And Think We Know) About Our Allegedly Contentious and Litigious
Society (1983) 31 UCLA L Rev 4.
13
17
18
19
See Green Paper on alternative dispute resolution in civil and commercial matters
COM/2002/0196 Final. Available at http://eurlex.europa.eu/.
20
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.
14
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. 21
(3)
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.22 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.23
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.
21
22
23
See Glasl Confronting Conflict: A First-Aid Kit for Handling Conflict (Hawthorn
Press June 1999). Table below is taken from this source.
15
nd
1.20
When deciding which dispute resolution process to use, there are two
key questions which must also be addressed.
(a)
1.21
The Commissions 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 Chancellors Department in its Alternative Dispute
Resolution - A Discussion Paper24 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;
24
26
See Modern Law for a Modern Scotland A Report on Civil Justice in Scotland
(Scottish Executive, February 2007) at 29.
27
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.
28
Modern Law for a Modern Scotland A Report on Civil Justice in Scotland (Scottish
Executive, February 2007) at 29.
17
Commission notes in this respect the constitutional right of access to the courts
under Article 40.3 of the Constitution. 29 Thus, other forms of dispute resolution
are often seen to be conducted in the shadow of the court. Furthermore, there
will be cases where fundamental rights, such as those enshrined in the
Constitution, will require judicial protection. Finally, courts can also be seen to
perform an important function in preserving peace and stability in society as a
whole.
1.27
While the courts will always retain a central place in the civil justice
system, it is increasingly recognised throughout the world that in many
instances there may be alternative and perhaps better ways of resolving civil
disputes. Other less formal means of dispute resolution may be quicker,
cheaper and better suited to the needs of the parties involved. Where there
exists an appropriate alternative dispute resolution mechanism which is capable
of resolving a dispute more economically and efficiently than court proceedings,
then the parties should be encouraged not to commence or pursue proceedings
in court until after they have made use of that mechanism."30 Once it is
determined that the dispute is suitable for ADR, the next step is to consider the
goals of the parties involved.
(b)
1.28
One of the key questions to be asked when selecting a dispute
resolution process is what process can best satisfy the interests and goals of
the party to the dispute.31 This outcome-oriented approach asks what should
happen as a result of the choice of the particular dispute resolution process. 32
1.29
The criteria which might influence the parties choice of process could
include the following:
the need or desire for confidentiality or privacy,
whether a precedent is required,
where a reputation or good name is at risk,
the costs involved,
29
See Hogan and Whyte (eds) JM Kelly: The Irish Constitution (4 ed Butterworths
2003).
th
30
31
32
Ibid. at 10.
18
33
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.
34
Example based on case study in Sander & Rozdeiczer Matching Cases and
Dispute Resolution Procedures: Detailed Analysis Leading to a MediationCentered Approach (2006) 11 Harv Negot L Rev 1.
35
See Sander & Rozdeiczer Matching Cases and Dispute Resolution Procedures:
Detailed Analysis Leading to a Mediation-Centered Approach (2006) 11 Harv
Negot L Rev 1.
19
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.36
C
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.37 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)
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. 38 Further
evidence reveals that the process of conciliation among disputants was very
important in Mesopotamian society.39 During the First Century BC a merchant
36
Burger Isnt There a Better Way (March, 1982) 68 American Bar Association
Journal 274 - 277 at 274.
37
Nelson Adapting ADR to Different Cultures (Dec 15, 2001). Online article
available at http://www.gowlings.com/resources/publications.asp?pubid=776.
38
See Fuller "Mediation - Its Forms and Functions" (1971) 44 S Cal L Rev 305 at
325.
39
Nelson Adapting ADR to Different Cultures (Dec 15, 2001). Online article
available at http://www.gowlings.com/resources/publications.asp?pubid=776.
20
1.37
Arbitration was an important feature of Irish Brehon Law. A 'brithem'44
who had trained in a law-school but had not been appointed by the king as the
40
41
42
43
Nelson Adapting ADR to Different Cultures (Dec 15, 2001). Online article
available at http://gowlings.com/resources/publications.asp?Pubid=776#N_2_.
44
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.
21
official judge for the area earned his living by arbitrating disputes between
parties who had agreed to be bound by the decision. 45 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.46
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.47
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 hooponopono for resolving disputes. This process involves a family
coming together to discuss interpersonal problems under the guidance of a
respected leader.48 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. 49
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
45
46
Ibid.
47
Ury Must We Fight? From the battlefield to the schoolyard A new perspective
on violent conflict and its prevention (Jossey Bass 2002) at 40.
48
49
Ibid. at 4.
22
reconciliation.50 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.51
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.52
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 53 provide
references to the resolution of disputes through arbitration or mediation.
50
51
Ibid.
52
53
(3)
(a)
Ireland
1.44
The first Arbitration Act was the Act for Determining Differences by
Arbitration, 1698.54 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.55
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.56
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
54
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.
55
56
Ibid.
24
conclusion.57 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. 58 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
th
and John Jameson. For much of the 18 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 1888.59
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.60 In May 2001, the International Centre
for Dispute Resolution, a separate division of the American Arbitration
Association, the worlds largest provider of commercial conflict management
and dispute resolution services, opened its European headquarters in Dublin. 61
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;
57
58
Ibid.
59
60
61
Ibid. at 7.80.
25
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.62
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.63
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 191364 and the Federal Mediation
and Conciliation Service 1947 were formed and funded to carry out the
mediation of collective bargaining disputes.
62
63
Ibid at 349.
64
1.52
Beginning in the late 1960s, 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.65 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.66 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.67
1.54
Professor Frank Sanders 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.68 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 processesthat may provide far
more effective conflict resolution. 69 He advocated a flexible and diverse
panoply of dispute resolution processes, with particular types of cases being
65
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-a38d9e65ed2f99f9//Session%202B%20-%20ADR%20-%20Shone.pdf.
66
67
68
69
Room 1
Mediation
Room 2
Arbitration
Room 3
Fact Finding
Room 4
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.74 Sanders idea was a catalyst for
70
71
Ibid. at 114.
72
Ibid. at 132.
73
74
The Hon. Justice Brian J Preston The Land and Environment Court of New
South Wales: Moving Towards a Multi-Door Courthouse. Keynote Address at
28
1.57
Sanders concerns for the future of the civil justice system were
echoed in the Woolf Reports on the civil justice system of the 1990s 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.77
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.78 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. 79
76
Benham & Boyd Barton Alternative Dispute Resolution: Ancient Models Provide
Modern Inspiration (1995-1996) 12 Ga St U L Rev 623 at 635.
77
See Lord Woolf, Access to Justice, Interim Report (1995) and Lord Woolf, Access
to Justice Final Report (1996).
78
Ibid.
79
Ibid.
29
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.80 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 courts resources.81
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.82 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 Council83
and Dunnett v Railtrack plc84 both indicated that unreasonable failure to use
ADR may be subject to cost sanctions. 85 Indeed, the CPR have also introduced
the possibility for cost sanctions if a party does not comply with the courts
directions regarding ADR.86
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
80
CPR 1.1(1).
81
CPR 1.1(2).
82
CPR 1.4.
83
84
85
86
CPR r. 44.5(3).
30
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.89 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.
87
88
89
(ii)
European Commission
(I)
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-ofcourt 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)
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.91
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. 92
90
91
Available at http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf.
92
For further discussion on the Code of Conduct for Mediators see Chapters 3 and
11, below.
32
(III)
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 2011.93
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 crossborder 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)
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.94 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
93
The Directive is available in the Official Journal of the European Union L 136/3
(May 2008). It is available at http://eurlex.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.
94
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 timeconsuming processes such as discovery. This legalistic approach often
overlooks other avenues of settlement opportunity, which may better address a
clients underlying interests and needs.95
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. 96
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.97 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.98
95
96
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.
97
98
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.
34
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.
35
CHAPTER 2
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
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?1
2.03
The Rules of the Superior Courts (Commercial Proceedings) 20042
and the Rules of the Superior Courts (Competition Proceedings) 20053
expressly mention both mediation and conciliation, but do not provide any
1
S.I. No. 2 of 2004, which inserted Order 63A into Rules of the Superior Courts
1986 (S.I. No. 15 of 1986).
S.I. No. 130 of 2005 which inserted Order 63B Rule into Rules of the Superior
Courts 1986 (S.I. No. 15 of 1986).
37
definitions of the terms. It must be assumed that those drafting the 2004 and
2005 Rules intended them to have different meanings. 4
2.04
The Commission considers that the development of clear and
consistent definitions of the more commonly used ADR terms would serve
several important functions. Four functions were highlighted by the Australian
National Alternative Dispute Resolution Advisory Council of Australia:
i)
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)
iv)
2.05
While consistent and clear terminology is necessary, it is important
that this does not limit the creativity and innovation that have made ADR
services so effective and popular. 6 Only a very limited number of key terms
should be defined in statute, where consistency and compliance are essential.
Where diversity and flexibility are important, may be more appropriate to have
descriptive terms.7
The Hon. Daryl Williams, Federal Attorney General VCAT Mediation Newsletter
No. 6, November 2002.
Ibid.
38
Definition of ADR
2.06
In general terms, the Commission understands ADR to represent a
broad spectrum of structured processes which are fundamental to any modern
civil justice system in providing greater access to individualised justice for all
citizens. ADR should not been seen as a separate entity from the court-based
arrangements for civil justice but rather should be seen as an integral part of the
entire system.
2.07
The acronym ADR is as flexible as the processes it embodies. It has
been described as A halfway house between the certainty of the adversarial
system and the flexibility of negotiation.8 Emanating from the United States, the
letters ADR evolved originally as an acronym for Alternative Dispute Resolution.
Historically this referred to an alternative to the courts. This original view of ADR
as an alternative dispute resolution mechanism to litigation in the court system
is no longer appropriate. Current practice of mediation internationally (and in
Ireland in the Commercial Court) demonstrates that ADR and litigation are not
homogenous, separate and opposed entities. 9
2.08
A number of other A words have been developed which are aimed
at identifying ADR as a dispute resolution concept in its own right and not as an
alternative, but rather additional to some other procedures, including
litigation.10 Amicable dispute resolution has been proposed to emphasis the
non-adversarial objectives and processes of ADR, as has accelerated dispute
resolution, which underlines one of the main advantages of many dispute
resolution processes, in that disputes are often resolved more quickly than
traditional litigation. As ADR has developed, importance has been placed on
choosing techniques to match the needs of a dispute and the interests of the
parties. Thus, appropriate dispute resolution is often encouraged as an
alternative component of the ADR acronym.
2.09
Moving on from ADR, BDR for better dispute resolution, or IDR, for
innovative dispute resolution have also been promoted in other jurisdictions
such as Canada. In some jurisdictions ADR is now so popular that it is no
longer an alternative form of dispute resolution but a primary form of dispute
10
Ibid.
39
resolution. Within the family law area ADR has been renamed primary dispute
resolution in Australia for this reason. 11
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 consensusoriented approach to dealing with potential and actual disputes. The concept
encompasses dispute avoidance, dispute management and dispute
resolution.12
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.13 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
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.14
11
12
13
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.
14
2.14
Preventive
Facilitative
Advisory
Determinative
Collective
ADR
ADR
ADR
ADR
ADR
ADR
Negotiation
Mediation
Conciliation
Arbitration
Ombudsman
Early Neutral
Schemes
Evaluation
Partnering
Collaborative
Adjudication
Lawyering
Court-Based
Court
Settlement
Masters
ADR
Expert
Clauses
Determination
Court Referred
ADR
Small Claims
Court
2.15
The Commission now turns to discuss each of these categories of
ADR in turn.
E
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 199215 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
15
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. 17 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 18 and may
result in a win-lose situation.
16
17
18
nd
42
ed
2.22
Principled negotiation refers to the interest-based approach to
negotiation.19 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. 20
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."21 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 partys 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.22
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 partys BATNA is also used in
mediation and conciliation.
19
See Fisher & Ury Getting to Yes: Negotiating Agreement Without Giving In (2
Penguin Books 1991).
nd
20
Ibid.
21
Ibid.
22
Ibid. at 108
43
ed
(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. 23
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.24
Successive UK construction industry review reports emphasised the importance
of partnering arrangements in order to facilitate and enhance team work across
contractual boundaries.25
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.26
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.
23
24
25
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.
26
(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.]27
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."28
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 Agreement29
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
27
28
29
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
30
31
For more information on the enforceability of ADR clauses see Chapter 7, below.
46
are satisfied with the agreement, and have all parties sign the agreement.32
This final session is known as the closing joint session.33
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".34
Transformative mediation does not seek resolution of the immediate problem,
but rather, seeks the empowerment and mutual recognition of the parties
involved.35 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
32
See Stitt Mediation: A Practical Guide (Cavendish, 2004); and Boulle Mediation:
principles, process, practice (Butterworths, 2001).
33
Diagram below taken from the ACC Europe Annual Conference: The Growing
Role of In-house Counsel: Lawyers as Business Partners, June 2007 Munich
Germany.
34
35
See Bush & Folger The Promise of Mediation: Responding to Conflict Through
Empowerment and Recognition (Jossey-Bass 1994).
47
dispute.36 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.37 Community mediation is mediation of a
community issue. 38 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
36
See Irving and Benjamin Therapeutic Family Mediation: Helping Families Resolve
Conflict
(Sage
Publications,
2002);
Ericksonhttp://heinonline.org/HOL/LuceneSearch?specialcollection=&term
s=creator%3A%22Erickson,%20Beth%20M.%22&yearlo=&yearhi=&subj
ect=ANY&journal=ALL&sortby=relevance&collection=journals&searchtyp
e=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.
37
38
See the Northside Community Law Centre website for more information on their
community mediation service at www.nclc.ie. See Chapter 9, below.
48
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. 39 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.40 It is also extensively used in the
construction industry and is a feature of the New Public Sector (GCCC)
Contracts.41
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. 42
(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
39
40
41
42
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.
43
Horgan Lets Work Together (June 2005) Law Society Gazette at 24.
44
Walls Collaborative law a new and better way Sunday Business Post 25 March,
2007.
45
Horgan Lets 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.
50
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.46
2.51
The Chartered Institute of Arbitrators, Irish Branch, which is a nonstatutory 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.47
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,
46
47
2.53
Hybrid models, which involve a combination of mediation and
arbitration, have also developed. These hybrid processes are known as medarb 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. 52
48
See The International Institute for Conflict Prevention & Resolution ADR
Glossary 2005 at www.cpradr.org; and Carey Baseball arbitration (2004) 11(6)
CLP 138.
49
See The International Institute for Conflict Prevention & Resolution ADR
Glossary 2005 at www.cpradr.org.
50
Ibid.
51
52
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.
52
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
arbitrators decision. If they do not reach agreement by the specified deadline,
the arbitrators decision becomes final and binding on the parties. 53 The arbmed 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;54 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.55
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.56 Adjudication is also used by the Financial Service
53
Zack Quest for Finality in Airline Disputes: A Case for Arb-Med (Jan 2004) 58
The Dispute Resolution Journal at 34-38.
54
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).
55
Ibid.
56
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 experts 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 Gis Eireanns 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.58
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.59
2.63
Whilst the expert determination process can resemble arbitration
there are several notable differences between the two processes. 60 There are
currently no statutory provisions applicable to expert determinations. In terms of
enforcement, an experts determination will not be enforceable domestically
without separate court action.61 Consequently, whilst expert determination may
57
See www.financialombudsman.ie.
58
Bord Gis Eireann Approved Dispute Resolution Legal Drafting Section 6.3.2.
Available at www.bordgais.ie.
59
60
61
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. 63 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.64 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.65
2.65
Collective ADR processes can also prevent the creation and
escalation of disputes through regulation. Examples of regulators include the
Environmental Protection Agency, 66 the Health and Safety Authority,67 Financial
Regulator,68 the Commission for Energy Regulation,69 the Commission for
Aviation Regulation,70 and the Commission for Communications Regulation.71
As noted in the Law Reform Commissions Report on Multi-Party Litigation the
impact of effective regulatory mechanisms will often work to prevent the wrong
62
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.
63
See Chapter 1, above.
64
65
66
67
68
69
70
71
arising in the first place and thus head off the need for any form of multi-party
litigation from the outset.72
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 nonstatutory 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)
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 2006.73
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
72
73
livestock grants; entitlement to local authority housing; and disputes about the
medical card scheme.74
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
75
decided to cancel the fine and issued a refund to the complainant.
2.72
This mediated result indicates the broad extent of the Ombudsmans
statutory role.
(b)
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.76 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
74
See www.ombudsman.gov.ie.
75
Ibid.
76
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.77 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. 78 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. 79
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.80
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.81 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.82
77
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.
78
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.
79
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.
80
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.
81
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.
82
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.
58
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 2006.83 In 2005, the highest compensation awarded by
the Ombudsman was 56,000 against a credit institution and 32,000 against
an insurance sector provider. 84 By contrast, 116,000 was awarded in five
instances in 2007 and over 200,000 was awarded to a professional rugby
player.85
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 complainants intended trip would have only
been for 59 full days. He directed the company to pay the complainant her
cancellation costs.86
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.87
83
84
85
86
Available at www.financialombudsman.ie.
87
See Chapter 8 below for information on FIN-NET and the Financial Services
Ombudsman.
59
(c)
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.88
2.82
The Pension Ombudsman Regulations 2003 89 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. 90 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
88
89
90
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.91
2.86
In 2006, of a total of 730 complaints made or on hand, 117 were
resolved by mediation.92 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.93 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. 94
Cases
Received
Total
2004
2005
2006
2007
297
389
439
515
91
92
93
Ibid.
94
(d)
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. 95
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 sons
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 childs case despite
several medical representations outlining the deterioration in the boys
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 boys
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 childs
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.96
(e)
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
95
Annual Report of the Ombudsman for Children Office 2007 at 20. Available at
www.oco.ie.
96
Annual Report of the Ombudsman for Childrens Office 2005 2006 at 17.
Available at www.oco.ie.
62
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.97
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.98
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
Offices 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. 99
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.100
97
98
99
100
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.
63
(f)
2.94
The Garda Sochna Ombudsman Commission was established
under the Garda Siochana Act 2005. The Ombudsman Commission is
empowered to: investigate complaints against members of the Garda Sochna;
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 Sochna 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 Sochna 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. 101 The
process involved is confidential and anything said may not be used in any civil
or criminal proceedings.102
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.103
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 Sochna will be expunged. If mediation does not succeed due to the
failure of the complainant to provide reasonable assistance for the purpose of
101
102
103
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.104
(h)
2.101
The Legal Services Ombudsman is to be established under the Legal
Services Ombudsman Bill 2008.105 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.106
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
104
105
106
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. 108
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
107
108
Coulter Ombudsman will oversee complaints against lawyers The Irish Times
March 25th 2008 at 1.
The European Ombudsman Annual Report 2007 (European Communities, 2008)
at 1. Available at www.ombudsman.europa.eu.
66
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 2007.109
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%).110
European Ombudsman Case Study111
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
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.
109
110
Ibid. at 9.
111
Ibid.
67
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)
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.112
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. 113
(2)
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 nonbinding.114
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.115
112
113
See Make Consumers Count - A new Direction for Irish Consumers (Consumer
Strategy Group, Forfas, April 2005).
114
See Kakalik An Evaluation of Mediation and Early Neutral Evaluation Under the
Civil Justice Reform Act (RAND Corporation, 1996).
115
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 advisers
role is that of a facilitator in the proceedings, as in mediation. However, if
116
For a more detailed discussion on the role of early neutral evaluation in the
English Courts see Chapter 7, below 7.43.
69
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.117
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 partys
case.
(4)
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.118
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
117
118
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.119
2.125
Judicial settlement conferences are either permitted or required by
statute in many United States courts as a procedural step before trial. 120 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
119
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.
120
72
CHAPTER 3
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.1 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.2
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.
nd
(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.3
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. 4 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.5
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.6
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,
Ibid.
74
th
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;
Genn Solving Civil Justice Problems What might be best? Paper presented at
th
Scottish Consumer Council Seminar on Civil Justice, January 19 2005. Available
at www.scotconsumer.org.uk.
Parties
Judge
Propose
Encourages
ADR
ADR
Judge
Encourages
ADR with
Threat of Costs
Sanction
Voluntary
Compulsory
ADR
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.11
10
11
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
Columbias 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. 12
British Columbias Notice to Mediate
(a)
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.13
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 1998.14
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. 15 An additional 10% of actions settled after delivery of a Notice, but
before the mediation session.16
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
12
13
14
BC Reg 127/98.
15
16
Ibid.
77
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.17 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.18
3.20
Similar schemes were introduced in 1999 and 2000, for residential
construction disputes19 and all civil, non-family, Supreme Court of British
Columbia actions,20 respectively.
3.21
In 2007, a similar scheme was introduced on a pilot basis in family
disputes.21 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;
17
18
19
20
21
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. 22
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 mediators fees will be
apportioned.23
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.24
(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.
22
23
See Zutter Incorporating ADR in Canadian Civil Litigation (2001) 13 Bond L Rev
2.
24
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.
Justice
79
Services
Centre
website
at
(4)
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)
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
Courts 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.25 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.26 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.
25
26
(i)
3.29
In 2006, the UK Department of Constitutional Affairs (DCA) 27
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.28
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.29
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%).30 The research also highlighted that the mediator had independently
developed telephone mediations to address the needs of parties who were
27
28
29
30
Ibid.
81
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.31
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.32
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. 33
31
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
th
to the European Commission for the Efficacy of Justice (26 June 2007).
Available at http://www.coe.int/.
32
33
Ibid. at 23.
82
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.34
3.35
The success of the Manchester pilot scheme led to its introduction
across England and Wales during 2008.35
(ii)
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.36 The mediation project
offered arms-length negotiation, as well as face-to-face mediation; both
procedures were used by approximately equal numbers of clients.37
3.38
The mediation pilot was examined in a 2002 report.38 Data was
collected from the projects 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
34
Ibid.
35
36
37
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.
38
Ibid.
83
Advice Bureaux and 5 were referred by the Court Sheriff. The majority of cases
(16 out of 23) involved small claims litigants. 39 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.40
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.41
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.42
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.43 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
39
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.
40
Ibid.
41
42
Ibid.
43
Ibid.
84
mediation rooms and the Mediation Co-ordinator works out of the Citizens
Advice Bureau office in the court building. 44
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 2003.45
(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 courts 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.46
3.45
In 2000, the Netherlands introduced a project entitled Courtconnected 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
44
45
Scottish Civil Courts Review: A Consultation Paper (Scottish Civil Courts Review,
November 2007) at 13. Available at http://www.scotcourts.gov.uk/.
46
48
49
Ibid.
50
Ibid.
51
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.52
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.53
(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.
52
53
3.54
were to:
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
55
which last for 1.5 hours each. Cases resolved in mediation account for 5 to
56
6% of the total amount of litigation. 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 Courts list of mediators, each person
must undergo specialised training in the field of ADR. 57
54
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.
55
Ibid. at 5.
56
Ibid. at 6.
57
(b)
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)
3.58
At about the same time as the Woolf Review was initiated in England
and Wales, in the early 1990s 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
58
end the huge backlog in cases going before the courts. 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
59
process and administration. It likewise proposed that the concept of court60
connected mediation be accepted in principle. These mirror the Woolf Report
principles.
3.59
The Ontario Civil Justice Review proposals were implemented by the
61
1999 Rules of Civil Procedure made under the Courts of Justice Act 1990.
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
62
Master 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
58
Prince Mandatory Mediation: The Ontario Experience (2007) 26 CJQ 2007 79.
59
Civil Justice Review, Supplemental and Final Report, (The Queens Printer,
Toronto, 1996) at 1.1.
60
Ibid., at 13.5.
61
62
Civil Justice Review, Supplemental and Final Report , (The Queens 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.
89
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
63
dispute. Of the cases referred in Toronto, there was a settlement rate of
64
approximately 40%, with a further 17% resulting in partial settlement.
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
65
mandatory mediation. 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
66
at an early stage in the litigation.
67
3.62
As a result, in 2004 a practice direction 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
63
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.
64
Ontario mandatory mediation pilot a success, The Lawyers Weekly, March 10,
2000.
65
66
67
(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.
90
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
68
Since 2000, all German states may (but do not have to) introduce
ADR.
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
69
magistrate court level. 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
70
schemes.
68
69
70
(iii)
3.66
The Civil Procedure Act 2005 (NSW) permits the Supreme Court at
71
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
72
mediation will be ordered in all proceedings. Initially there was a general
73
acceptance of the view adopted by Barrett J in Morrow v Chinadotcom Corp.
that there was no point in a mediation engaged in by a reluctant party. In a
74
frequently cited passage from Remuneration Planning Corp Pty Ltd v Fitton
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)
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.75 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
71
Part 4 of the Civil Procedure Act 2005. See also Practice Note No. SC Gen 6
Supreme Court Mediation.
72
73
74
75
See Genn Twisting arms: court referred and court linked mediation under judicial
pressure, (Ministry of Justice Research Series 1/07, May 2007).
92
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 76
with an opportunity to opt out. 77 Thus for the first time England had in effect
introduced a quasi-compulsory78 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)
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 2001.79
3.71
However, following the landmark Court of Appeal decisions in Cowl v
Plymouth City Council80and Dunnett v Railtrack plc81 demand began to rise
steeply, so that in 2005 368 cases entered the scheme of which 333 were
76
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.
77
78
79
Genn Twisting arms: court referred and court linked mediation under judicial
pressure, (Ministry of Justice Research Series 1/07, May 2007) at 150.
80
81
actually mediated during the year.82 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
Cases entering the VOL mediation scheme 1996-2005 in relation to
key policy milestones.83
3.73
82
Genn Twisting arms: court referred and court linked mediation under judicial
pressure, (Ministry of Justice Research Series 1/07, May 2007) at 150.
83
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.
84
Genn Twisting arms: court referred and court linked mediation under judicial
pressure, (Ministry of Justice Research Series 1/07, May 2007) at 134.
94
(ii)
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 19961998, 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%.85
3.75
Settlement rate 1996-2005 in VOL mediation scheme (Base = 1,348
mediated cases).86
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
85
Ibid. at 151.
86
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.
95
87
Ibid. at 148.
88
89
90
See Genn Twisting arms: court referred and court linked mediation under judicial
pressure, (Ministry of Justice Research Series 1/07, May 2007).
91
Ibid. at 151.
96
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.93
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. 94
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;
92
Ibid. at 149.
93
See Genn Twisting arms: court referred and court linked mediation under judicial
pressure (Ministry of Justice Research Series 1/07, May 2007) at ii.
94
Ibid. at 197.
97
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
95
See Genn Twisting arms: court referred and court linked mediation under judicial
pressure (Ministry of Justice Research Series 1/07, May 2007).
96
Ibid. at 73.
97
The Third Mediation Audit (Centre for Effective Dispute Resolution, November
2007) at 9. Available at www.cedr.co.uk.
98
98
Genn Twisting arms: court referred and court linked mediation under judicial
pressure, (Ministry of Justice Research Series 1/07, May 2007) at 199.
99
Ibid. at iv.
100
101
Ibid. at 79.
Genn Twisting arms: court referred and court linked mediation under judicial
pressure (Ministry of Justice Research Series 1/07, May 2007) at 131.
99
mediation, that does not in itself provide them with the right mindset to work
towards negotiated and mutually satisfactory settlements.102
(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.103 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.104
Such procedural requirements are consistent with the concept that courtannexed mediation should remain a wholly consensual process.105
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.
102
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.
103
For further discussion on providing parties with information on ADR see Chapter
5 below.
104
For further discussion on the issue of cost sanctions see Chapter 11 below.
105
The Final Report on Civil Justice Reform (Civil Justice Reform Judiciary of Hong
Kong, 2004) at 438. Available at http://www.civiljustice.gov.hk/.
100
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 Commissions 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 Courtannexed mediation scheme should be established in the District Court based on
the principles of the voluntary participation of the litigants.
C
Confidentiality
(1)
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.106 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.107
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.108 During the debates
on the Civil Liability and Courts Act 2004 it was noted that It is vital in mediation
106
107
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
108
that the confidentiality of all parties is respected, otherwise people will just be
defensive and will stand their ground. 109
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.110
The Commission now turns to examine the different ways in which
confidentiality is currently protected.
(2)
3.102
Standard agreements frequently contain confidentiality provisions
and have the benefit of eliminating uncertainty about the existence and scope of
confidentiality protections.111 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.112
3.103
When parties enter into such an agreement they are thus
contractually obliged to preserve the confidentiality of the process.
(3)
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
109
th
110
111
112
dispute, since the courts will not find the privilege to relate to communications
which have a different purpose.113
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.114 As Keane J explained in Greencore Group plc v Murphy115 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. 116
3.106
Similarly, in the English Court of Appeal decision in Cutts v Head,117
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 Daniels118 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 Printing119 the English Court of Appeal
reinforced the without prejudice status of mediation negotiations. The Court
113
114
Rush & Thompkins v Greater London Council [1989] AC 1280 at 1299 (per Lord
Griffiths).
115
116
117
118
119
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)
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 120, 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 Friedland121 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. 122
(ii)
Threats
3.112
In Venture Investment Placement Ltd v Hall 123 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.
120
121
122
123
(iii)
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.124 In Brown v Rice & Patel125 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
124
125
and communications made during it. The Court recognised that those
exceptions to the without prejudice rule should be "kept within close
confines."126
(iv)
3.117
Where settlement negotiation communications disclose evidence of
legal entitlement,127 that information is admissible as evidence both as between
the parties128and as between a party and a third party.129 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.130 Evidence of a fact, for instance that someone
had written and signed a document, not related to the terms of the settlement
are admissible.131 In Munt v Beasley132 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. 133 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.134
126
Mediation: No such thing as mediation privilege yet (April 2007) Herbert Smith
Litigation E-Bulletin. Available at www.herbertsmith.com
127
128
129
130
See Bradford & Bingley plc v Mohammed Rashid [2005] EWCA Civ 1080.
131
132
133
See Somatra Ltd v Sinclair Roche & Temperley [2002] EWHC Com 1627.
134
Ibid.
106
3.119
In Chantrey Vellacott v Convergence Group plc 135 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 Ltd136 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)
3.121
In 1889 the English Court of Appeal held, in Walker v Wilshire137 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)138 the
High Court recognised the Calderbank letter procedure.
3.123
In Reed Executive plc v Reed Business Information Ltd.139 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
135
136
137
138
139
3.125
The Commission acknowledges that the words without prejudice
cannot bring down a complete veil over mediation communications. In Ryan v
Connolly141 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.142 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)
3.126
The Commission now turns to consider whether mediation should be
granted a distinct form of mediation privilege. In Cook v Carroll143 Gavan Duffy
140
Reed Executive plc v Reed Business Information Ltd [2004] EWCA Civ 159. at
para 35.
141
142
Ibid at 181.
143
[1945] IR 515.
108
J. approved four criteria favoured by Dean Wigmore144 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. 145
3.127
Examples of categories of privilege include the absolute privileges
over confidential communications made by a parishioner to a priest (sacerdotal
privilege)146, or communications with a marriage guidance counsellor.147
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.148 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,149 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.
rd
144
145
146
147
ER v JR [1981] 1 IR 125.
148
149
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.150 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.151
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 witnesswithin the
framework of the same dispute if ADR has failed."152 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.153 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].154
150
Brown and Marriott ADR Principles & Practice (Sweet & Maxwell, London, 1999),
paras 22-079 to 22-097.
151
152
153
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 mediators testimony.
154
(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 Commissions 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.155
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.156
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
155
See Johnson Confidentiality in Mediation: What can Florida Glean from the
Uniform Mediation Act? (2003) 30 Florida State University 487.
156
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.159
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
157
158
159
power over the resolution and outcome of their dispute. This principle is known
as self-determination.
(1)
3.142
The success of any mediation or conciliation is closely connected
with the parties ability to make voluntary, uncoerced, informed decisions. 160
Defined in this way, self-determination is often said to be mediations prime
directive.161 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. 162
3.143
offered:
3.144
The self-determination principles is clearly applied in section 4.6 of
the Mediators Institute of Irelands 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
160
161
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.
162
163
Informed Consent
3.146
In the Commissions 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.164
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.165 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.166
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 Commissions 2001 Recommendation on the principles for out-ofcourt 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.
164
165
166
(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.167
3.149
(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.
167
168
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
3.155
This echoes previous comments internationally. For example, Lord
Woolf in his Review of the English Civil Justice system in the mid 1990s 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.170
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. 171 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.172
169
170
Lord Woolf Access to Justice, Interim Report (1995) at Chapter 4 para 7(3) at.20.
171
172
Ibid.
116
(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 partys 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.173 Since 1990, CEDR suggests that the
mediation profession has contributed savings of 6.3 billion.
3.159
In Egan v Motor Services (Bath) Ltd174 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 Justices 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
173
CEDR UK Conflict is costing business 33 billion every year (26 May 2006).
Online article available at www.cedr.com.
174
29% said that costs had been increased.175 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.176
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.177 In 2005, ADR
was used in 336 cases with 241 leading to settlement, saving costs estimated at
120.7m.178 It is worth noting that in Royal Bank of Scotland v Secretary of
State for Defence179 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.180
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
175
Genn Twisting arms: court referred and court linked mediation under judicial
pressure, (Ministry of Justice Research Series 1/07, May 2007) at 177.
176
Ibid. at 178.
177
178
179
180
in the same conflict situation.181 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.182
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 projects
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. 183
3.165
In 2007, the English the National Audit Office reported the cost of
litigation versus mediation in family breakdowns.184 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
181
182
Ibid.
183
184
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/.
119
undertaken for improper strategic purposes, rather than with the intention of
entering into good faith bargaining.185
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 Commissions 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.186 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
th
collection. On the 14 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
th
2006, unless the parties agreed in the meantime to go to mediation. On the 16
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
185
186
US Chief Justice Warren Burger: Our Vicious Legal Spiral (1977) 22 Judges
Journal 49.
120
88%.187 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.188 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.189 Over 95% of mediations were
complete within nine months and all mediations were complete within 12
months.190 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.191
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. 192 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.193 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.194
187
The Third Mediation Audit (Centre for Effective Dispute Resolution, November
2007) at . Available at www.cedr.co.uk.
188
Ibid.
189
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/.
190
Ibid.
191
Ibid.
192
See Genn Twisting arms: court referred and court linked mediation under judicial
pressure, (Ministry of Justice Research Series 1/07, May 2007).
193
Genn Twisting arms: court referred and court linked mediation under judicial
pressure, (Ministry of Justice Research Series 1/07, May 2007) at 181.
194
Ibid.
121
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.195
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 1960s. 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%. 196
(3)
Conclusion
3.174
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
195
Genn Twisting arms: court referred and court linked mediation under judicial
pressure (Ministry of Justice Research Series 1/07, May 2007) at 183.
196
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.
197
and the promise of a permanent memorial to the children whose organs had
been retained by the hospital.198
(1)
Procedural Flexibility
3.178
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
198
199
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.202
Impartiality is said to refer to an even-handedness, objectivity and fairness
towards the parties during the process. 203
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
200
201
202
Field Neutrality and Power: Myths and Reality (2000) 3 ADR Bulletin 1 at 16-19.
203
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.204
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
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.205 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
204
Available at http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf.
205
status of any agreed solution for resolving the dispute.206 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 Commissions website in order to
promote its use by practitioners. The Code does not have the force of law but in
the Commissions 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
3.193
The Commission has already referred to the 2008 Directive on
207
Certain Aspects on Mediation in Civil and Commercial Matters.
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
208
judicial proceedings.
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.209 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.210
206
207
The Directive is available in the Official Journal of the European Union L 136/3
(May 2008). It is available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:136:0003:0008:EN:PDF.
208
209
210
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.211 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.212 This allows Member States to preserve existing arrangements, such
as the mediation and conciliation services of the Labour Relations
Commission.213
(1)
3.196
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.215 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.216
3.198
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
211
212
213
214
215
216
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.217 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.218
(2)
Confidentiality
3.200
The principle of confidentiality in the mediation process is a key
element of the 2008 Directive.219 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.220
3.201
Recital 7 states that nothing prevents Member States from enacting
stricter measures to protect the confidentiality of mediation. 221
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
217
218
219
220
221
222
223
224
225
226
(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.227 This reflects the fundamental principle of self-determination and partycontrol 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.228
3.207
The Commission notes that the European Commissions 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)
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.229
3.209
It is notable that the European Commissions 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;
227
228
229
Flexibility
3.210
The mechanisms should aim at preserving the flexibility of the
mediation process.230
(7)
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.231 These mechanisms may include marketbased 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.232 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.233
(8)
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.234
3.214
At present, parties who mediate in circumstances where they have
not commenced litigation are usually restricted to reducing the terms of any
230
231
232
233
234
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.
131
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
235
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.
133
CHAPTER 4
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
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
135
4.12
The Labour Relations Commission was an agency established by the
Industrial Relations Act 199012 to promote effective resolution of workplace
9
10
11
See Health and Safety Review, May 2002 and September 2003, referring to a
mediation scheme by Dublin City Council. Available at
www.healthandsafetyreview.ie.
12
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.
138
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.18 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
13
14
Meenan Working Within the Law: a Practical Guide for Employers and Employees
nd
(2 ed Oak Tree Press 1999) at 511.
15
16
17
18
20
Ibid.
21
22
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.
23
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.
24
explore the possibilities for a settlement. The IRO must treat as confidential all
information received during the course of conciliation.25 They will not disclose
this information to any other party unless expressly permitted to do so.26
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.27 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.28
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.
25
26
27
28
4.20
In 2006, the Conciliation Service Division
conferences and secured a settlement in 81% of
Where no resolution of a dispute is possible at
endeavours to secure the agreement of the parties
Court for investigation and recommendation.31
4.21
In 2007, the Labour Relations Commission carried out a client survey
to determine satisfaction levels in relation to the conciliation service. 32 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.33
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.34 The survey also demonstrated that the extent of the
Commissions services and expertise may not be fully understood by clients and
29
th
30
31
Ibid.
32
33
Ibid. at 14.
34
Ibid.
142
potential clients.35 In its Strategic Objectives 2008 2010, the Labour Relations
Commission has recognised that a clients experience of conciliation can be
enhanced through a deeper understanding, by the client, of the dynamics of the
conciliation process.36 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)
4.24
The Labour Relations Commission is statutorily charged with the
promotion of good employment relations practice across all Irish workplaces. 37
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.38
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
35
36
Ibid.
37
38
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,39 joint working parties,40 preventive services and
advice,41 and frequent users initiative.42
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.43 They are drafted by the Advisory Service and
39
In conducting an industrial relations audit, the Advisory Service will audit all of the
organisations 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.
40
41
42
43
are written in consultation with employers, trade unions and other interested
parties.44 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.45 The Labour Relations Commission has developed 10 Codes of
Practice under this power.46
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.47 The Enhanced Code of Practice on Voluntary
48
Dispute Resolution 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.49
(3)
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
44
45
46
47
48
SI No.76 of 2004.
49
small groups of employees and individuals and the aim is provide people
with access to justice without undergoing an excessively legalistic process.50
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.51
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.52
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.53 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.54
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. 55 Where a recommendation is issued,
either party has 6 weeks to appeal that decision to the Labour Court. 56 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).
50
51
52
53
54
See www.lrc.ie.
55
56
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.57 In 2007, the number of cases referred to the Rights
Commissioners reached 9,000.58
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.59
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
57
58
Ibid.
59
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. 60
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.61 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.62 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.63
(4)
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.64 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.65 The Workplace Mediation Service operates under the Conciliation
60
61
62
See Bruton & OMahony Employment law and reform: What is coming down the
tracks? (2007) 4 IELJ 4 at 121.
63
64
65
67
Ibid.
68
Ibid.
69
70
Ibid.
71
Ibid. at 15.
149
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.72 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.73
Its remit was extended to cover discrimination outside of employment under the
Equal Status Act 2000.
(1)
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 2000.74
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.75
4.44
The Commission acknowledges that this reflects the Commissions
definition of mediation.76
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
72
73
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.
74
75
76
77
Section 78(1) of the Employment Equality Act,1998. Section 24 (1) of the Equal
Status Act 2000.
78
79
80
Section 78(3) of the Employment Equality Act 1998. Section 24(2) of the Equal
Status Act 2000.
81
82
Section 78(4) of the Employment Equality Act 1998. Section 24(3) of the Equal
Status Act 2000.
151
ensure that both sides can give informed consent on signing. 83 Mediators at the
Equality Tribunal are accredited by the Mediators Institute of Ireland. 84
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.85
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.86
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.87
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.88 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)
4.51
It has been noted that mediation in the Equality Tribunal allows the
parties to reach a settlement which meets their particular needs. 89 Some of the
83
84
Ibid. at 5. For further information on the Mediators Institute of Ireland see Chapter
10, below.
85
Section 78(5) of the Employment Equality Act 1998. Section 24(4) of the Equal
Status Act 2000.
86
Section 78(6) of the Employment Equality Act 1998. Section 24 5) of the Equal
Status Act 2000.
87
88
89
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
1946.92 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, parttime work and fixed-term work matters. 93
(1)
4.55
In terms of industrial relations disputes, the Labour Courts 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
91
92
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.
93
See www.labourcourt.ie.
154
4.57
In terms of the organisation of working time the Labour Courts main
functions are to:
Approve working time agreements under the Organisation of Working
Time Act 1997;
Hear appeals of Rights Commissioners'
Organisation of Working Time Act 1997; and
decisions
under
the
In terms of part-time work the Labour Courts 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 (PartTime Work) Act 2001.
4.60
94
95
investigated 100 cases which were settled at or after a hearing and made 11
Employment Regulation Orders.96
F
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.97 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.
96
97
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.98
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 Tribunals 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. 99 In 2006, the annual average waiting
period to have a claim heard was 27 weeks in Dublin, and 44 weeks in
provincial areas at years end.100 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 EATs 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.101 The Report of the Group
suggested that proceedings at the EAT have moved very substantially from the
98
99
100
Ibid. at 6.
101
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.102
4.72
102
103
(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)
4.74
The (NCPP) operates under the auspices of the Department of the
Taoiseach.104 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). NESDOs 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:
104
See www.ncpp.ie.
160
(2)
4.76
The National Employment Rights Authority (NERA) was established
on a non-statutory basis in 2007 under the Social Partnership Agreement
Towards 2016.106 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 2008.107
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.
105
106
107
CHAPTER 5
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)
5.02
In its Report on Family Courts1 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.2 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.3
Ibid. at 55-59.
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.4 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.5
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.6 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.7
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.8 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
4
Ibid.
Ibid.
court would proceed with the hearing, but written information would be sent to
the parties.9 These recommendations have not been implemented.
(2)
5.06
The 2007 Report prepared for the Courts Service of Ireland reiterated
a number of the recommendations in the Commissions 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.10 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.11
(3)
(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.12 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
9
Ibid.
10
Coulter Family Law Reporting Pilot Project: Report to the Board of the Courts
Service (Courts Service, October 2007) Recommendation 2 at 61.
11
12
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.13 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 childrens needs and voices sharply into focus
for parents in a completely nonadversarial manner, and at relatively low cost. 14
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.15
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
13
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/.
14
Kelly Psychological and Legal Interventions for Parents and Children in Custody
and Access Disputes: Current Research and Practice (2002) 10 Va J Soc Poly &
L 129 at 133-136.
15
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.16
5.12
Research has
education programmes is
mandatory for all parents
about their children, or at
order the classes.17
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 Commissions 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. 18 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
16
17
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/.
18
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 365371; 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.
167
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. 23
19
20
21
22
Ibid.
23
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.24 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.25
(b)
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. 26
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. 27 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,
24
25
26
Section 63B of the of the Family Law Act 1975 , as amended by the Family Law
Reform Act 1995.
27
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.28
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 1998-99.29
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.30
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
28
29
30
Ibid.
170
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)
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.
171
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.31
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.32 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. 33 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.34
The 1980 Act provides that the Co-ordinator is an officer of the court.
Counselling is available on request by one of the spouses35 or by mandatory
31
32
33
34
35
36
37
38
39
40
41
Ibid.
42
43
Ibid. at 219.
173
Mediation
(1)
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.44 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."45 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: 46
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 cooperation between the spouses.
5.39
As noted by the Family Mediation Service, issues
addressed and resolved by family mediation include:
which can be
The family home where will each person live and where will the
children live?
44
Coulter Family Law Reporting Pilot Project: Report to the Board of the Courts
Service (Courts Service, October 2007) at 58.
45
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).
46
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?47
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. 48 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 childrens needs at a critical time of change and
upheaval.49
5.41
In its Consultation Paper on Family Courts,50 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;
47
48
49
Kelly Psychological and Legal Interventions for Parents and Children in Custody
and Access Disputes: Current Research and Practice (2002) 10 Va J Soc Poly &
L 129 at 131.
50
51
52
53
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. 54 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)
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.55
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. 56
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 nonadmissibility as evidence of communications relating to reconciliation,
separation or divorce.57
5.48
Similarly, section 20 of the Guardianship of Infants Act 1964,58 as
inserted by the Children Act 1997, requires the solicitor acting for an applicant
54
55
56
57
See Conneely The Family Law (Divorce) Act 1996: Some Observations (1997)
15 ILT 78.
58
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 parttime 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.61 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.62
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
59
60
Coulter Family Law Reporting Pilot Project: Report to the Board of the Courts
Service (Courts Service, October 2007) at 40.
61
See http://www.fsa.ie/familymediation/index.html.
62
law in 2006.63 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 clients 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. 64
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.65
(4)
(a)
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
63
Coulter Family Law Reporting Pilot Project: Report to the Board of the Courts
Service (Courts Service, October 2007) at 40.
64
Ibid.
65
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 Commissions discussion on training and accreditation for family
mediators.
179
order for parents and mediators to make sure the childs best interests are
met.66
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
5.59
The 2003 Brussels II EC Regulation67 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.68
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 childs
distress, especially because research evidence shows that the parents' views
of what children think can differ considerably from what the children themselves
think.69 Yet certain mediators feel that the involvement of children places an
66
See Schoffer Bringing Children to the Mediation Table: Defining a Childs 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.
67
68
Ibid. Article 4.
69
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
70
their children is not necessarily at odds with the welfare of the children.
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.71 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 childrens 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 childs 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.72
5.62
In Australia, the Family Law Act 1975, as amended by the Family
Law Reform Act 1995 put a greater emphasis on the childs best interests in the
process of dispute resolution. An Australian study found that only 4% of
70
Ibid.
71
See Lloyd The Family Mediation Service: Recent Developments [2001] 3 IJFL
23.
72
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.73
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.74
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 childs need for parental cooperation 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. 75 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.76 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.77
73
74
75
Ibid. at 5.
76
Ibid. at 12.
77
Ibid. at 16.
182
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 childrens
court appointed representative.78 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
childs participation is a matter for parents to decide after proper consultation
and discussion.79
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. 80
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,
78
Available at http://www.afccnet.org/pdfs/modelstandards.pdf.
79
See Schoffer Bringing Children to the Mediation Table: Defining a Childs Best
Interest in Divorce Mediation (2005) 43 Family Court Review at 326.
80
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.
183
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. 83
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.84 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
81
82
83
84
(a)
5.75
In Al-Khatib v Masry89 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.
85
86
87
88
Coulter Family Law Reporting Pilot Project: Report to the Board of the Courts
Service (Courts Service, October 2007) at 61.
89
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.90 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.91
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 Commissions 1990 Report Family Law: The
Ground for Divorce92 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. 93
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 Stateregistered 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,
90
91
92
Law Commission of England and Wales Report on Family Law: The Ground for
Divorce (Law Com. No. 192, 1990).
93
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.94
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.95
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.96
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.97
94
95
See Cretney, Masson and Bailey-Harris Principles of Family Law (Sweet and
Maxwell 2003) at 303.
96
97
Ibid.
187
5.82
99
100
Legal aid and mediation for people involved in family breakdown (National Audit
Office, HC 256 Session, 2007).
101
Ibid.
188
bill was 435 days, or over 14 months. Only 70% of these cases were complete
within 18 months.102
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. Nonlegally-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. 103 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. 104
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.105
102
Legal aid and mediation for people involved in family breakdown (National Audit
Office, HC 256 Session, 2007) at 8.
103
104
Ibid. at 433
105
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. Poly & L. 129 at 137.
189
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.106 By 2001, mediation had become mandatory in 13 states
in the United States.107 It is important to note that these mandatory mediations
only require an attempt to mediate parental differences on custody and contact,
not settlement.108
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.109
5.90
A study in 2004 indicated that in 34 of Californias 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.110 Thus, in recommending
counties, mediation incorporates an evaluative component and is more in line
with the Commissions 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.
106
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.
107
Including Delaware, Florida, Hawaii, Idaho, Maine, Nevada, North Carolina, South
Dakota, and Utah.
108
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.
109
110
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.
190
111
See www.nadrac.gov.au.
112
Bordow and Gibson, Evaluation of the Family Court Mediation Service (Family
Court of Australia Research and Evaluation Unit, Research Report No 12, 1994).
113
Ibid.
114
Ibid.
191
(i)
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)
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)
(b)
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.115 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.116 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;
115
116
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 someones 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
childrens 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 childs interests.117
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;
117
(iv)
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 Governments 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 childrens 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. 120
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
118
119
120
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.
194
programmes have been introduced in all 10 Canadian provinces.121 Courtconnected 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.122
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.123 In Ontario,124 Newfoundland,125 and the Yukon126 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.127. 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. 128
121
122
Ibid.
123
124
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.
125
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.
126
127
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.
128
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.
195
(i)
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 directors 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. 129
(ii)
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.130
(iii)
Qubec
5.112
Since 1997, couples in Quebec with children may obtain the services
of a professional mediator during the negotiation and settlement of their
129
See http://www.mediator-roster.bc.ca/select_cp.cfm.
130
See http://www.ag.gov.bc.ca/dro/family-mediation/PracticumProgram.pdf.
196
application for separation, divorce, dissolution of the civil union, child custody,
or spousal or child support, or the review of an existing decision. 131
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 mdiation 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)
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. 132 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
131
See http://www.justice.gouv.qc.ca/English/publications/generale/mediationa.htm#anchor145822.
132
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. 133 Family Court judges held
approximately 3000 mediation conferences in 2000.134
5.117
In response to the New Zealands 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 2006.135
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.136
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.137
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
133
134
135
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-ofpilot/ex-summary.html.
136
Ibid. at 11.
137
Ibid.
198
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.138
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
$943.48.139 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.140
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. 141
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 childrens needs ahead of their own. 142
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.143
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.
138
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-ofpilot/ex-summary.html.
139
Ibid. at 14.
140
Ibid. at 15.
141
Ibid. at 17.
142
Ibid.
143
2008 No 143-2.
199
(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. 144
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. 145 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. 146
144
145
See Report of the Working Group to Consider a Pilot Scheme for the Introduction
of Mediation into Family Law Litigation in Hong Kong (1999).
146
Law Reform Commission of Hong Kong Report The Family Dispute Resolution
Process (LRC HK March 2003) at 18.
200
5.126
In June 1999, the Mediation Coordinators Office (MCO) was set up
to implement a pilot scheme funded and monitored by the Judiciary and the pilot
was launched in 2000.147
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-ordinators 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.148
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
147
148
Ibid.
201
basis.149 It was also recommended that applicants for legal aid in matrimonial
cases should be required to attend information sessions at the Mediation Coordinators 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.150
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.151
5.131
The Commission considers collaborative lawyering to be an advisory
ADR process.152 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.153
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 nonconfrontational 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.154
149
Ibid.
150
151
Walls Collaborative law a new and better way Sunday Business Post 25 March,
2007.
152
153
Walls Collaborative law a new and better way Sunday Business Post 25 March,
2007.
154
Ibid. See also Bryan Collaborative divorce: meaningful reform or another quick
fix? (1999) 5(4) Psychology, Public Policy, and Law 1001; Gamache
202
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.155
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. 156 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. 157
Information Leaflet
www.legalaid.ie.
156
Coulter A New Era in Family Law The Irish Times 17 May, 2006.
157
Ibid.
on
Collaborative
203
Lawyering
Legal
Aid
Board.
See
5.135
An Association of Collaborative Practitioners (ACP) has been
established in Ireland. 158 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.159
5.136
By 2007, 140-150 lawyers had been trained in collaborative
lawyering in Ireland.160 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.161
(1)
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 legallybinding 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.162
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.
158
See www.acp.ie .
159
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.
160
Walls Collaborative law a new and better way Sunday Business Post 25 March,
2007.
161
Family Law Matters Volume 2 No 1 (Courts Service, Spring 2008) at 22. Available
at www.courts.ie.
162
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. 163
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.164
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. 165
(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
163
Ibid.
164
See Slovin The Basics of Collaborative Family Law- A Divorce Paradigm Shift
(2005) 18 The American Journal of Family Law 2.
165
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. 166
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;
166
See Slovin The Basics of Collaborative Family Law- A Divorce Paradigm Shift
(2005) 18 The American Journal of Family Law 2.
206
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.168 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. 169
(a)
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.170
167
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
168
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.
169
Pirrie Collaborative divorce (2006) 156 New Law Journal 898 at 899.
170
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. 171 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.172
5.151
Collaborative law services have been available in California since
1993.173 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
171
172
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.
173
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.
175
Ibid. at 23.
176
See Da Costa Divorce with dignity (2005) 35 Family Law Journal 478 at 481.
177
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.
178
Sections 5076, 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.
209
Australia
5.155
In 2006, the Family Law Council prepared a report for the AttorneyGeneral 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
179
Sections 50-72 Article 4, Chapter 50, North Carolina General Statute (2004).
180
Sections 50-77 Article 4, Chapter 50, North Carolina General Statute (2004).
210
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.182 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
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.183
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
181
182
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.
183
5.163
In a 2004 Green paper entitled Parental Separation: Childrens
Needs and Parents Responsibilities 188 the UK Government, in conjunction with
184
185
186
187
188
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.189
(1)
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.190
(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.
Constitutional Affairs, the Secretary of State for Education, and the Secretary of
State for Trade and Industry.
189
190
(3)
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 selfpromotion.191 This was intended to increase the number of cases being
mediated and increase the national awareness of mediation.
I
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 ones property. For example, one of the
deceaseds 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 persons 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. 192
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
191
192
the will or otherwise.193 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. 194
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
193
194
See Hourican Section 117 Claims: Practice and Procedure and Matters to Bear
in Mind (2001) 6(3) CPLJ 62.
215
nd
ed Butterworths, 1995).
195
CHAPTER 6
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
6.02
It has been estimated that up to 1,500 deaths are caused annually by
medical errors in Ireland.1 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.2
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.
See Clancy Risk Management in the Irish Health Service where do we go from
here? (2003) 9 Medico-Legal Journal of Ireland 88.
Moloney Dealing with Medical Negligence Claims: a review of options for reform
(1999) 5 Medico-Legal Journal of Ireland 2 at 79.
217
(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.3
6.04
In Ireland, until the establishment of a Clinical Indemnity Scheme
(CIS) under the auspices of the States Claims Agency (SCA),4 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.5
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.6
(1)
6.06
Most legal actions in Ireland brought by patients against medical
professionals are based on the tort of negligence. The actions 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. 7 Mediation can
3
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 1990s. See Report on Multi-Party Litigation (LRC 76-2005), para 1.13.
See www.stateclaims.ie.
See http://www.stateclaims.ie/ClinicalIndemnityScheme/introduction.html.
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.13
8
Ibid.
10
Ibid.
11
12
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.
13
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.
219
6.11
6.12
The Ombudsman provides, in this respect, an important and free
alternative for complainants who do not wish to litigate health care grievances.
14
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.
220
(2)
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
departmental risk assessments. 15
(3)
changes
in
procedure
and
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.16 It can be one of the most effective means of averting or solving
legal disputes,17 yet it is an act very much outside the traditional adversarial
legal framework.18 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,
15
Allen A New Way to Settle Old Disputes: Mediation and Healthcare (2005) 73
Medico-Legal Journal 3 at 93-110.
16
Taft Apology Subverted: The Commodification of Apology (2000) 109 Yale Law
Journal 1135 at 1137.
17
18
Cohen Legislating Apology: The Pros and Cons (2002) 70 U. Cin. L. Rev. 819 at
872.
221
19
20
21
6.18
The statute defines benevolent gestures as actions which convey a
sense of compassion or commiseration emanating from humane impulses.22 By
the end of 2005, apology-immunity statutes had been passed in 19 states in the
United States.23 Empirical evidence is now emerging that supports the view that
apologies can reduce litigation and promote the early resolution of disputes.24
6.19
All Australian states have also introduced statutory protection for
apologies in the context of medical claims.25 Similarly, in British Columbia the
Apologies Act 200626 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.27
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.28
6.21
The Commission provisionally recommends that a statutory provision
be considered which would allow medical practitioners to make an apology and
22
23
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.
24
25
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.
26
S.B.C. 2006,c.19
27
British Columbia, Legislative Assembly, Hansard, Vol. 8, No. 7 (29 March 2006)
at 3456. (Hon. W. Oppal).
28
Samuels The Compensation Act 2006: Helpful or Unhelpful for Doctors? (2006)
74 MLJ 171.
223
Professional Conduct
(1)
6.22
The Medical Practitioners Act 2007 substantially expanded the
grounds upon which a complaint may be brought for professional misconduct.29
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.30
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.31
6.24
The 2007 Act also introduces a new power to resolve conflicts by
mediation.32 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
29
SI No.2 of 2007.
30
31
32
6.27
In Burne v 'A'39 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
33
34
35
36
37
38
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.
39
step should be taken in the remitted action until this has been done." 40 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.41
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)
(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.42
6.30
A report was conducted to evaluate the pilot. 43 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.44 Comparing traditionally managed cases with a similar profile to
40
41
42
Ward Mediation: An Invaluable Component of Any ADR Forum within the Irish
Healthcare System 7 (2001)Medico-Legal Journal of Ireland 2 at 64.
43
See Mulcahy et al. Mediating medical negligence claims: an option for the future?
(Stationary Office, 2000).
44
Ibid.
226
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.45
(ii)
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.46
6.32
The NHS Litigation Authority47 has also instructed its panel of law
firms to consider the appropriateness of mediation in every case and to monitor
the outcomes of mediation.48 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%.49
(2)
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. 50
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
45
Ward Mediation: An Invaluable Component of Any ADR Forum within the Irish
Healthcare System (2001) 7 Medico-Legal Journal of Ireland 2 at 64.
46
47
See http://www.nhsla.com/.
48
Nesic Mediation on the Rise in the United Kingdom? (2001) 13 Bond Law
Review 2.
49
Ibid.
50
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.
227
appropriate way of resolving the particular dispute; reduce delay and costs; and
reduce the need for litigation.51 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.52
6.34
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.54
E
(1)
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
51
52
53
54
before they can proceed to court.55 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."56 Although referred to in the relevant
legislation as "mediation", the work of the panels is more accurately described
as early neutral evaluation.57
(2)
6.38
Before a medical malpractice claim can be filed in Maine, a complaint
must be filed with a pre-litigation screening panel58. 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.59
55
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.
56
57
58
59
6.40
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 OConnor, 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. 60
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.
60
CHAPTER 7
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
7.02
Most commercial disputes have at least three dimensions; legal,
commercial, and emotional.1 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. 2 Litigation has the advantage of
finality but may hamper the continuation of a business relationship.
Runesson and Guy Mediating Corporate Governance Conflicts and Disputes (The
International Finance Corporation, World Bank Group, 2007) at 28. Available at
www.ifc.org.
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.3
7.04
In the United Kingdom, the Centre for Effective Dispute Resolution
(CEDR) has estimated that disputes may cost business 33 billion every year.4
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).5 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.6
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.7 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.8
7.06
Businesses can now incorporate a broad range of ADR processes
into the management of their business to prevent and handle commercial
3
CEDR UK Conflict is costing business 33 billion every year (26 May 2006).
Online article available at www.cedr.com.
Ibid.
Ibid.
Ibid.
232
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.9 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.10
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.11 It is evident from this that commercial mediation is a
phenomenon of global significance, and is rapidly becoming an attribute of
global commerce.12
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
9
The Inside Track How Blue-Chips are using ADR Survey & Report conducted
by Herbert Smith LLP November 2007. Available at www.herbertsmith.com.
10
Ibid.
11
Runesson and Guy Mediating Corporate Governance Conflicts and Disputes (The
International Finance Corporation, World Bank Group, 2007) at 13. Available at
www.ifc.org.
12
13
14
7.11
Ireland has experienced an unprecedented economic expansion in
recent years and it was to be expected that commercial disputes would also
increase.15 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 DCC16 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.17 Fullblown 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.18 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)
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
15
16
[2007] IESC 36 Supreme Court, 27 July 2007. See Dowling Fyffes v DCC
Analysis and Implications (2006) 13 CLP 2.
17
18
Runesson and Guy Mediating Corporate Governance Conflicts and Disputes (The
International Finance Corporation, World Bank Group, 2007) at 13. Available at
www.ifc.org.
235
19
20
Runesson and Guy Mediating Corporate Governance Conflicts and Disputes (The
International Finance Corporation, World Bank Group, 2007) at 44. Available at
www.ifc.org.
21
See Chapter 2, above at paragraph 2.32 for examples of single and multi-tiered
ADR clauses.
22
Runesson and Guy Mediating Corporate Governance Conflicts and Disputes (The
International Finance Corporation, World Bank Group, 2007) at 6. Available at
www.ifc.org.
23
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.26 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
24
[1993] AC 334.
25
Ibid. at 353.
26
27
28
29
Ibid. at 246.
30
31
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)
(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) 2004.32 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.33
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.34
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.35 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
32
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.
33
34
35
7.30
Mediation has also been recommended and attempted in many other
cases in the Commercial Court.38 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 Courts 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:
36
SI 130 of 2005.
37
38
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 dEvian. Record No.2005/3718P. See Dowling The Commercial
Court (Thomson Round Hall 2007).
240
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;
39
40
41
42
43
44
45
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.46
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.47
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. 48
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
Long Trials Working Party recommended that At appropriate stages
representatives should also be required to sign a statement to the
indicating whether ADR has been considered internally within the
Court
those
court
client
46
47
Ibid.
48
Ibid.
244
7.46
In 2004 the Irish government decided to reform public sector
construction procurement in Ireland and commissioned replacement of GDLA51
and IEI52 Standard Forms of Contracts. In 2007, a suite of construction
contracts for use on Public Works contracts was published. 53
7.47
Public sector construction contributes approximately 8 billion to the
Irish construction industry every year. 54 Construction projects, as a result of
their inherent nature, can be subject to cost and time overruns. With such a
49
50
Ibid.
51
52
53
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.
54
Howley and Lang Public Works Contract for Building Works Designed by the
Employer Explained (Clarus Press, 2008) at i.
245
large financial outlay and exposure to cost and time overruns, the government
require more price and time certainties on public construction projects. 55 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.56
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.57 The
Commission now turns to examine Clause 13.
(a)
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 doesnt, 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
7.51
The Commission has already defined conciliation as an advisory as
opposed to an adjudicatory process.58 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 Commissions view an adjudicatory or determinative role.59 It has
55
Ibid.
56
57
58
59
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
246
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.60 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)
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 conciliators role confirms the Commissions
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
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.
60
7.55
Clause 13.1.8 states that where the parties cannot reach an
agreement within 42 days after the conciliator is appointed 62 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.63
7.57
Under clause 13.1.9 if either party is dissatisfied with the conciliators
recommendation, it may, within 45 days after receiving the conciliators
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 conciliators
recommendation, the recommendation shall be conclusive and binding on all
the parties, and the parties agree to comply with it.
61
62
63
(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 Governments Standard
Contracts for Public Works.
(4)
7.61
From 2001 to 2006, 20% of the company law-related disputes settled
by the International Chamber of Commerce concerned corporate governancerelated disputes.64 An example of a corporate governance-related dispute
includes disputes among shareholders.65
7.62
that:
64
Runesson and Guy Mediating Corporate Governance Conflicts and Disputes (The
International Finance Corporation, World Bank Group, 2007) at 18. Available at
www.ifc.org.
65
See White and Stewart Arbitration clauses and shareholders remedies (2002) 9
CLP 246.
249
67
Carey and Leonowicz Litigation of Shareholder Disputes Under Woolf- Can Such
Changes Yield Advantages for Ireland? (1999) 6 CLP 12 at 6.
68
69
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.
250
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)
(a)
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.70 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.71
(b)
7.68
Founded in 1915 the Chartered Institute of Arbitrators is a UK
registered charity with an international network.72 It has over 11,000 members in
more than 100 countries including Ireland. The Institutes 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 Branchs membership compromises of over 600 Chartered Arbitrators,
Fellows, Members and Associate members.73 The multi-disciplinary
70
See www.lawlibrary.ie.
71
72
See www.arbitrators.org.
73
See www.arbitration.ie.
251
74
75
76
See http://www.arbitration.ie/Arbitration/ibranch/eusubmissions.html.
252
(c)
7.72
The Irish Commercial Mediation Association (ICMA) was established
in 2003 to promote and develop commercial mediation in Ireland. 77 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.78
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)
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.79 As noted by Smyth J in Gould v
Sweeney80courts 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."81
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
77
See www.icma.ie.
78
Ibid.
79
See Anderson Sports and The Courts Time for A Sports Disputes Tribunal of
Ireland? (2005) 23 Irish Law Times 149.
80
81
sporting context save for anti-doping and employment issues.82 It also states
that it supports and is founded on the principles of simplicity, accessibility and
enforceability.83
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.84
D
7.78
In Keenan v Shield Insurance Co Ltd 85 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.86 The Arbitration (International Commercial) Act 1998
82
These issues are dealt with by the Irish Sport Councils Anti-Doping Disciplinary
Panel and the Employment Appeals Tribunal respectively. For more information
on Just Sport Ireland see www.justsport.ie.
83
Ibid.
84
85
[1988] IR 89.
86
7.80
The International Centre for Dispute Resolution (ICDR) is the
international division of the American Arbitration Association (AAA), the worlds
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 Tnaiste stated:
"The AAA chose Dublin as the site because of Irelands 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."88
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. 89
(2)
7.82
The International Chamber of Commerce is one of the worlds
leading organisations in the field of international commercial dispute resolution
and is the worlds 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
1998 (1999) 17 Irish Law Times 262; Anglade Developing International
Arbitration in Ireland (1999) 5 Bar Review 3 143.
87
See www.dublinarbitration.ie.
88
Dublin Chosen for Major International Dispute Resolution Centre Tnaiste Mary
Harney officially opens the new Centre (2001)
http://www.entemp.ie/press/2001/200601a.htm.
89
See http://www.adr.org/icdr.
255
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 PCAs 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.92
90
See www.iccwbo.org.
91
ICC International Court of Arbitration (ICC Publication 810, April 2006). Available
at http://www.iccwbo.org/uploadedFiles/Court/Arbitration/810_Anglais_05.pdf.
92
(4)
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. 93 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 Courts 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.
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).
93
See www.tas-cas.org.
257
CHAPTER 8
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
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, wellinformed 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.1
8.03
Consumer redress mechanisms form a spectrum that ranges from
two-party consumer and business negotiation, through to various third-party
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.
259
Make Consumers Count - A New Direction for Irish Consumers (Report of the
Consumer Strategy Group April, Forfas, 2005) at 45.
260
(1)
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.10
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
10
See Slattery Consumer Protection Bill 2007 (2007) 14(5) CLP 95; and ONeill
The Consumer Protection Act 2007 Enforcing the New Rules (2008) 26 ILT
46.
12
Make Consumers Count - A new Direction for Irish Consumers (Report of the
Consumer Strategy Group April, Forfas, 2005) at 67.
13
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
17
Directive on Unfair Commercial Practices. The Agencys 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.
14
Make Consumers Count - A New Direction for Irish Consumers (Report of the
Consumer Strategy Group April, Forfas, 2005) at 71.
15
16
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.
17
Directive 2005/29/EC.
264
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)
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
18
deficit by consumers and others from poor governance arrangements), 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
19
contractual template for professional fees and service charges. 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)
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
18
19
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)
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,20 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)
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. 21
20
21
(c)
Other Regulators
8.19
The Commission has already described the general regulatory role of
the National Consumer Agency (NCA). 22 Other examples of regulatory bodies in
specific areas having an input on consumers in Ireland include: ComReg (which
regulates telecommunications in Ireland); 23 the Commission for Energy
24
Regulation (which regulates the gas and electricity suppliers); the Commission
25
for Taxi Regulation; the Commission for Aviation Regulation;26 and the
Financial Services Regulator.27
8.20
The Financial Regulators 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. 28 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
22
23
See www.comreg.ie.
24
See www.cer.ie.
25
See www.taxireg.ie.
26
See www.aviationreg.ie.
27
See www.ifsra.ie.
28
See
Financial
Regulators
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.
267
under the 2006 Financial Regulators 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;29
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; 30
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;31
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 2006.32
(e)
Professional Bodies
8.22
Trade associations or professional bodies such as the Register of
Electrical Contractors of Ireland,33 Engineers Ireland,34 Construction Industry
Federation,35 and the Irish Medical Organisation 36 exist to represent the
29
See www.agriappeals.gov.ie.
30
See www.appealcommissioners.ie.
31
See www.socialwelfareappeals.ie.
32
See www.appeal.ie.
33
See www.reci.ie.
34
See www.iei.ie.
35
See www.cif.ie.
36
See www.imo.ie.
268
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. 37 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.38
(i)
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)
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.39 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 preprinted 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 SIMIs own Retail Motor Industry Standards Tribunal whose
recommendations are binding on the SIMI member but not on the customer.40
The scheme has fixed costs and a 90-day completion period for the arbitration
process.
37
38
39
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.
40
th
269
(II)
8.26
The Tour Operators Holiday Package Scheme was established in
1993 and was negotiated with the Irish Tour Operators 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.41
(III)
8.27
In the United Kingdom, IDRS Ltd. offers a range of over 100 ADR
schemes usually through a group or trade association. 42 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 adjudicators decision is made it becomes
binding if the customer accepts it within 6 weeks.43
8.28
Research published in 2004 indicated that provision of ADR in the
UK for consumer problems is ad hoc.44 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.45
41
See White A Fair Deal For the Holiday Consumer (1991) 9 ILT 92.
42
43
44
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).
45
Ibid. at 74.
270
(1)
8.29
In October 2001, the European Commission and Member States
established the European Extra- Judicial Network (EEJ-Net).46 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.47
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 consumers behalf. In 2007, ECC Ireland secured 84,000 in refunds and
compensation for consumers.48
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
46
47
See www.eccdublin.ie.
48
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.
271
refund for the consumer, plus the additional shipping costs he faced in
sending it back to the company.49
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 Irelands 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.50 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.51
8.32
In Ireland, the Department of Enterprise, Trade and Employment is
responsible for recommending ADR bodies to the European Commission.52 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.53 Criteria for a successful
application include the principles of independence of the organisation, and
transparency of the proposed resolution procedure. 54 ECC Dublin works closely
49
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.
50
Ibid. at 17.
51
Ibid.
52
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.
53
54
Ibid. at 5.
272
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.55 This means that many cross-border complaints remain unresolved.56
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.57 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 consumers legal entitlement to redress.58
8.34
In its 2008 report The development of Alternative Dispute Resolution
(ADR) in Ireland : An analysis of complaints, best practice and future
recommendations59 ECC Ireland made the following recommendations in
relation to consumer disputes and ADR:
55
56
57
Ibid.
58
Ibid.
59
8.37
The Financial Services Ombudsmans Bureau cooperates with FINNET which is a financial dispute resolution network of national out-of-court
complaint schemes in the European Economic Area countries.60 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 2001.61 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.62
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.63 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
60
See www.financialombudsman.ie.
61
62
63
See FIN-NET Memorandum of Understanding on a Cross-Border Out ofCourt Complaints Network for Financial Services in the European Economic
Area at http://ec.europa.eu/internal_market/fin-net/docs/mou/en.pdf.
275
64
65
that comply with the principles of the Recommendation. FIN-NET only includes
schemes that have been notified by their Member States.66
8.40
In 2007, FIN-NET handled 1,412 cross-border cases.67 Of these, 107
complaints were referred to the Irish Financial Services Ombudsmans Bureau
through the FIN-NET scheme.68
(3)
8.41
In 2007, the European Community adopted a Regulation establishing
a European Small Claims Procedure (ESCP). 69 The objective of such a
procedure is to facilitate access to justice70 and simplify and speed up
litigation concerning small claims in cross-border cases.71 A claim is considered
a small claim where its value does not exceed 2,000 and involves civil and
commercial matters.72
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).73 The ESCP will usually be a
66
67
68
69
70
71
72
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.
73
written procedure but the Court may decide to hold an oral hearing if it
considers it necessary or if the parties request it.74 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.75 The decision of the court can be appealed and
information on appealing a decision will be made public by the Commission
once available.76
E
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.77 The principal types of dispute resolution mechanisms
currently offered online are automated negotiation,78 assisted negotiation,79
74
75
76
77
78
79
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.
278
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.82 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
80
81
Corts Adapting Irish Small Claims Procedure (2007) 10 Cork Online Law
Review. Available at http://www.mercuryfrost.net/colr/index.php.
82
See www.ecodir.org.
279
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.85 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
83
84
85
www.TheInternetOmbudsman.com
is
a
new
service
offered
by
www.TheMediationRoom.com that applies technology to resolve consumer
complaints and claims online.
280
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.86
8.50
In France, since 1997 IRIS Mediation (Imaginons un Rseau Internet
Solidaire) provides mediation services for disputes between internet users. Le
mdiateur du net, a private body, deals with disputes arising from electronic
commerce.87 In Austria, the Internetombudsman, another private body, offers
online dispute resolution for e-commerce complaints.88 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.89 The Arbitration body of the Chamber of Commerce of Milan,
Risolvionline, offers online conciliation but is not limited to consumer disputes.90
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
Irelands 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.91
86
87
See www.iris.sgdg.org/mediation.
88
See www.isoc.be/safeinternet/bir.htm.
89
See www.ombudsmann.de.
90
See www.camera-arbitrale.it.
91
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.
281
8.52
Similarly, Forfs 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.92
8.53
The Commission is also aware of the ongoing work of the Courts
Service in its development of an eCourts strategy93 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
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.94 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
92
93
See ICT Strategy for the Courts Service 2000-2010, available at www.courts.ie.
94
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 Consumers Guide (FirstLaw,
2003).
282
cost is the 15 fee which is payable in respect of their claim. 95 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
96
with under the Small Claims procedure, from 44 in 2006 to 589 in 2007.
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
complainants 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
95
Make Consumers Count - A New Direction for Irish Consumers (Report of the
Consumer Strategy Group April, Forfas, 2005) at 51.
96
need to attend court.97 Of all applications received in 2007, 1,552 or 41.5% were
98
received through the Small Claims Online System.
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 3,000.99
In its 2008 Report on Multi-Unit Developments the Commission also
recommended that the Small Claims Court should have its jurisdiction increased
100
to 3,000.
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
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.101 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
97
Corts Adapting Irish Small Claims Procedure (2007) 10 Cork Online Law
Review. Available at http://www.mercuryfrost.net/colr/index.php.
98
99
100
101
See www.arn.se.
284
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.102 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 Boards 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.103 The Norwegian model is a hybrid system which means that a
102
103
Ibid. at 13.
105
See http://www.norway.ie/policy/family/consumer/policy.htm.
106
See http://forbrukerportalen.no/Emner/engelsk_fransk.
107
108
Ibid. at 14.
109
Ibid.
286
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.110
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.111
(4)
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. 112
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
110
111
112
113
CHAPTER 9
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
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."1
(1)
9.03
In the early 17 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.2 This sense of personal space remains a
st
central part of home ownership in the Ireland of the 21 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.3 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.4
1
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
Keanes 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.5 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.6
9.05
As noted by Ward LJ in the English case of Alan Wibberley Building
Ltd v Insley:7
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 compelsome
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.8
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.9 Very often the
boundary dispute is a proxy for an underlying dispute between the neighbours.
Circuit Court Judge Likens Case to The Field, Wicklow People, March 18 2004.
Available at www.wicklowpeople.ie.
Judge advises families to bury the hatchet in dispute over right of way, Carlow
People, 5 April 2007. Available at www.carlowpeople.ie.
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.10
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.11
(2)
9.09
In the English case Barker v Johnson,12 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.13
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
10
11
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.
12
13
financially and emotionally, can far out-weigh the value of the claim itself. For
example, in the English case Scammell v Dicker,14 the case began in 1989 with
the defendant seeking a declaration as to the line of her boundary with the
plaintiffs neighbouring farm. The case ended 16 years later in 2005, by which
time the plaintiffs litigation was being funded by the Services Indemnity Fund
and the defendant was receiving legal aid, having spent her savings on the
litigation.15
9.11
In Ali v Lane16 and Haycocks v Neville17, 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)
(a)
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.18 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
14
15
See Smith Mending Fences (2007) 104 Law Society Gazette 32.
16
17
18
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.
292
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 squatters 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 pleadedYou 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."19
9.15
Clark J added: If this was a Commercial Court case 20 or a family law
21
case, 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 Js 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.
19
Ms Justice Clark quoted in Black and Healy Judge Makes Plea for Peace in
th
Kenny Land War, 12 April 2008, The Irish Independent. Available at
http://www.independent.ie/national-news/judge-makes-a-plea-for-peace-in-kennyland-war-1345782.html.
20
21
9.16
When the High Court hearing resumed, the parties stated that the
case had been settled by mediation and the content of the mediators 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)
9.18
In the Department of the Environments 2001 guidance document on
Good Practice in Housing Management: Guidelines for Local Authorities,22
mediation is recommended as a means of resolving neighbour disputes in
housing estates, including boundary disputes. 23 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, nonconfrontational and strictly confidential mechanism to resolve their
disagreements through structured dialogue. 24
22
23
24
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
294
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.25
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. 26 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
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.
25
26
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
27
28
29
Ibid.
296
(1)
9.27
The Private Residential Tenancies Board was established by the
Residential Tenancies Act 2004. 30It 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
landlords failure to enforce tenants obligations (for example neighbours).31 In
2006, 1,300 disputes between landlords and tenants were referred to the
PRTB.32
30
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.
31
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.
32
9.29
The PRTB operates a two-stage dispute resolution system. Stage 1
consists of either mediation or adjudication. 33 Stage 2 is a hearing by a Tenancy
Tribunal.34
(2)
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 mediators role highlights that the process is
more consistent with the Commissions definition of conciliation.35 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.36
act at all times in accordance with the highest standards of the
professional body, if any, of which he or she is a member.37
maintain the confidentiality of the proceedings concerned.38
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.
33
34
35
36
Section 101(1)(a) of the 2004 Act. See also section 112 of the 2004 Act.
37
38
9.34
Mediation at the PTRB is voluntary in nature and both parties must
consent to participate in the process. 39 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.40 A mediation
agreement or adjudication decision that is not appealed will become a binding
determination order of the PRTB.41
(3)
9.35
A dispute will be referred to a Tenancy Tribunal if any of the parties
wishes to appeal the adjudicators decision within 21 days or in the event that
mediation is unsuccessful and any of the parties request a Tribunal hearing. 42 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.43 The Tenancy Tribunal holds its
hearings in public.44 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.45 The parties will be allowed participate fully and give their evidence. 46 The
Tribunals 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. 47
39
40
41
42
43
44
45
Section 105 of the 2004 Act sets out provisions in relation to evidence and the
summoning of witnesses.
46
47
9.37
Failure to comply with a determination order of the PRTB is an
offence.48 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
(1)
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 Pleanla within 4 weeks from the date of a
decision by a planning authority.49 An Bord Pleanla 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. 50 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 78,000.51 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
48
49
50
51
planning authorities. In recent years there have been 4,500-5,500 appeals each
year. An Bord Pleanla formally decided 3,903 appeals in 2006.52
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,
quasijudicial function of An Bord Pleanla may not be the most
beneficial for the planning process in this regard.53
(2)
(a)
9.42
In the English case of Cowl v Plymouth City Council54 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 System55 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.
52
Ibid.
53
Morgan & OConnor Resolving property disputes, Universal service a value for
money solution? (2003) 10(4) CLP 96.
54
55
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. 56 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.57
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.58 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.59
9.46
In 2003, a follow-up Research Report recommended that a National
Planning Mediation Service be established.60 The recommendations of this
Report have not yet been implemented.
(b)
Australia
9.47
In Australia, Victorias 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
56
57
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.
58
Ibid.
59
Ibid.
60
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 Victorias
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.61
(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.
61
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.
303
10
CHAPTER 10
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
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.1
1
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.2 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. 3
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;
Ibid. at 3.1.
306
Ibid. at 3.2.
(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;7
Chartered Institute of Arbitrators (Irish Branch); 8
Friarylaw;9
International Centre for Dispute Resolution;10
Law Society of Ireland;11
Mediation Forum Ireland;12 and
Mediators Institute Ireland;13
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)
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
See www.lawlibrary.ie
See www.arbitration.ie
See www.friarylaw.ie.
10
11
See www.lawsociety.ie
12
See www.mediationforumireland.com.
13
See www.themii.ie.
308
15
Ibid.
16
Ibid.
17
See www.themii.ie.
309
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
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. 19
10.17
The Commission turns to examine developments in the systems for
the regulation and accreditation of mediation in other States.
18
19
th
310
(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. 20 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
20
See www.nmi-mediation.nl.
311
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.21
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.22 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;
21
22
a complaints system that either meets minimum standards for industrybased 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.23
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.24
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.25 The Approval Standards:
23
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.
24
Ibid. at article 3.
25
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.
313
26
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.
27
Ibid. at article 2.
28
29
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.
30
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.
31
Ibid. at article 7.
32
Ibid. at article 6.
33
See www.civilmediation.org.
314
(3)
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.34
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
members own complaints process, can refer the matter to the CMC for
resolution through mediation.35
(4)
10.37
The Family Mediation Council (FMC) was established in 2007 to
harmonise standards for family mediation in England and Wales.36 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.37
10.38
34
35
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.
36
See www.familymediationcouncil.org.uk.
37
Constitution,
available
at
10.40
The ADR Institute of Canada was established to develop and
promote dispute resolution services in Canada. 39 It has obtained recognition
under the Canadian Federal Trade Marks Act 1985 for certain titles including:
Chartered Mediator; C.Med., Mdiateur Certifi; Mdiatrice Certifie; and
Med.C. The Institute is represented throughout Canada by its affiliated Regional
Institutes who administer and regulate these titles in their respective regions
38
39
See www.adrcanada.ca.
316
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 Canadas 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
Canadas 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.40 This is consistent with the Commissions
definition of mediation.41
10.43
10.44
The Code also sets out a framework of general principles which
should be adhered to by mediators. These include the principles of selfdetermination, independence and impartiality, confidentiality, and quality of the
process.
40
Model Code of Conduct for Mediators (ADR Institute of Canada Inc., 2005).
Available at http://www.adrcanada.ca/rules/national_code_of_conduct.pdf.
41
42
Model Code of Conduct for Mediators (ADR Institute of Canada Inc., 2005).
Available at http://www.adrcanada.ca/rules/national_code_of_conduct.pdf.
317
(6)
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.43
10.46
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
43
See www.imimediation.org.
318
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 decertification.
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
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
44
Available at http://www.cpradr.org/pdfs/finalProvider.pdf.
45
46
Available at
www.acrnet.org/pdfs/ModelStandardsofConductforMediatorsfinal05.pdf.
47
Available at http://www.lawcouncil.asn.au/policy/1957353025.html.
319
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.49 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. 50
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 Mediation51 and Model Standards of Conduct for
Mediators.52
(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.53 Mediators in civil law matters must all be registered with the Federal
48
49
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.
50
51
Available at http://www.afccnet.org/pdfs/modelstandards.pdf
52
Available at
http://www.abanet.org/dispute/news/ModelStandardsofConductforMediatorsfinal0
5.pdf
53
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;54be
trustworthy; and possess the necessary professional indemnity insurance. 55
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.56
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. 57
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 cultureSystematic
reform and the maintenance of high standards of performancerequire a
healthy professional culture, one that values lifelong learning, takes ethical
concerns seriously, and embraces a services ideal. 58 As noted by Ward LJ in
the English case Burchell v Bullard:59
54
55
56
57
58
59
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.60 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.61
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
60
See www.lawsociety.org.uk.
61
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)
ii)
iii)
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.
323
11
CHAPTER 11
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
11.02
As previously noted1 the Commission acknowledges and commends
the manner in which the High Courts 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 2 and the well established use of
mediation in family disputes.3
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.4
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. 5 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)
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.6 Lord Woolfs view on compulsory mediation has
been echoed in various judgments. For example, in Re H (A Minor)7 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 8 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.9 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 Ltd10 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.
See Lord Woolf, Access to Justice, Interim Report (1995) and Lord Woolf, Access
to Justice Final Report (1996).
[2002] EWHC 2059 (Comm), [2002] 2 All ER (Comm) 1041, [2003] BLR 89.
10
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.11 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. 12
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.13 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
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
11
12
13
14
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 Procedure15
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.16 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.17
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 States18 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
15
16
Lightman Breaking down the barriers The Times July 31 2007. Available at
http://business.timesonline.co.uk/tol/business/law/article2166092.ece.
17
Ibid.
18
See the discussion of case law in New South Wales and the United States,
below.
329
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. 19
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)
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 Corp20 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
21
Fitton 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 Perkins22, 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
19
Ibid. See also Sautter Halsey-mediation one year on (2005) 155 NLJ 7176.
20
21
22
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 Corporation24 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 partys 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
23
24
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 clich that you can take a horse to water but
whether it drinks is another thing entirely. That it is a clich 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.25
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. 26
C
Costs Sanctions
11.24
To the Commissions 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,27
in other words the losing party must pay the successful partys 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
25
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
th
(8 May, 2008). Available at
http://www.judiciary.gov.uk/publications_media/speeches/index.htm.
26
27
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.28
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)
11.28
In Kay-El (Hong Kong) Ltd, v. Musgrave Ltd.29 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
28
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
th
(8 May, 2008). Available at
http://www.judiciary.gov.uk/publications_media/speeches/index.htm.
29
High Court, 2 December 2005. See Dowling The Commercial Court (Thomson
Round Hall 2007).
333
making a judgement, not about the dispute but about the conduct of the
parties.30
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.31
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 persons state of mind which, by
definition, is subjective.32 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.33
30
31
32
33
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.
334
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.34 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.35 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 persons 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
34
35
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
36
38
39
40
41
Ibid. at para. 1.
42
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 Woolfs 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. 43
11.44
In Dunnett v Railtrack plc44 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. 45
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 claimants 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.
43
44
45
Carey Court Reforms, ADR and Costs Consequences Lessons for Ireland?
(2002) 20 ILT 246.
338
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.46
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. 47
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
46
See Dowling Hussey The rule in Dunnett v Railtrack clarified? (2005) 12(7) CLP
186 .
47
48
49
Carey Court Reforms, ADR and Costs Consequences Lessons for Ireland?
(2002) 20 ILT 246.
50
11.53
Lightman J stated the critical factor as being whether, objectively
viewed, mediation had any real prospect of successIf 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
todays civil justice system, and any unjustified failure to give proper
attention to the opportunities afforded by mediationthere 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 51
provides comprehensive guidance on the imposition of costs sanctions. The
Court affirmed the views expressed in Dunnett v Railtrack plc52 which modified
the observations of Lightman J in Hurst v Leeming53 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
plaintiffs solicitors had made a number of attempts to avoid a Court hearing,
offering to limit the plaintiffs 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 plaintiffs 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.
51
52
53
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 partys
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)
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
54
unsuitable for ADR. 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. 55
(b)
11.59
Dyson LJ also noted that a partys 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. 56 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)
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.
54
55
Ibid.
56
(d)
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 mediators 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.57
(e)
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)
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
57
58
59
Lightman Breaking down the barriers The Times July 31 2007, available at
http://business.timesonline.co.uk/tol/business/law/article2166092.ece.
60
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.
61
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 & Parker62 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.63
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
Commissions 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
64
potential to add to the ultimate costs of civil proceedings.
(3)
Conclusion
11.70
The Commissions review of developments in other jurisdictions 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
62
63
64
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.
345
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
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
346
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 mediators 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
mediators or conciliators report to the court should be restricted to a neutral
summary of the outcome of the mediation or conciliation.
E
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 mediators fee will be split equally
or otherwise, that each party will bear its own costs. Sir Anthony Clarke, Master
347
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.65
11.80
In National Westminster Bank v Feeney66 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 Ltd67 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 2 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
65
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
th
(8 May, 2008). Available at
http://www.judiciary.gov.uk/publications_media/speeches/index.htm.
66
67
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. 68
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.
68
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.
349
12
CHAPTER 12
SUMMARY OF PROVISIONAL
RECOMMENDATIONS
12.01
The Commissions 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]
351
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 Courtannexed 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]
352
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 Commissions 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 Commissions 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]
353
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 Governments 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 Centres 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
354
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
mediators or conciliators 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]
356