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REPORT
(LRC 98-2010)
ALTERNATIVE DISPUTE
RESOLUTION:
MEDIATION AND
CONCILIATION
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LAW REFORM COMMISSION‘S ROLE
The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commission‘s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. Since it was established, the Commission has published over 150 documents (Consultation Papers and Reports) containing proposals for law reform and these are all available at www.lawreform.ie. Most of these proposals have led to reforming legislation.
The Commission‘s role is carried out primarily under a Programme of Law Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the Commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in December 2007 and placed before both Houses of the Oireachtas. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act. Since 2006, the Commission‘s role includes two other areas of activity, Statute Law Restatement and the Legislation Directory.
Statute Law Restatement involves the administrative consolidation of all amendments to an Act into a single text, making legislation more accessible. Under the Statute Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on as evidence of the law in question. The Legislation Directory - previously called the Chronological Tables of the Statutes - is a searchable annotated guide to legislative changes. After the Commission took over responsibility for this important resource, it decided to change the name to Legislation Directory to indicate its function more clearly.
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MEMBERSHIP
The 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: The Hon Mr Justice Donal O‘Donnell, Judge of the Supreme Court
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ADMINISTRATION STAFF
Executive Officers: Deirdre Bell Simon Fallon
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
PRINCIPAL LEGAL RESEARCHER FOR THIS REPORT
Nicola White LLB, LLM (Dub), Attorney at Law (NY)
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CONTACT DETAILS
Further information can be obtained from:
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
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- INTRODUCTION TABLE OF CONTENTS
- A Background to the Report
- resolution, in particular mediation and conciliation B The Commission‘s approach to alternative dispute
- to agree solutions (1) The role of the courts in encouraging parties
- development of ADR (2) Delays in the court process and the
- (3) The court process and ADR
- (4) Efficiency, including cost efficiency
- (5) Other benefits of ADR, including flexibility
- (6) An integrated approach to dispute resolution
- (7) The main focus of the Report
- C Outline of Report Chapters
- CHAPTER 1 ADR: AN OVERVIEW
- A Introduction
- B Access to Justice and ADR
- C Appropriateness of ADR
- D Conclusion
- CHAPTER 2 ADR: TERMINOLOGY & SCOPE
- A Introduction
- B Definition and scope of the term ‗ADR‘
- (1) ADR: Dispute Resolution and Prevention
- (2) General Scope of ADR
- C Distinguishing between mediation and conciliation
- (1) Role of the Third Party
- (2) Rights Based v Interest Based Resolutions
- (3) Conclusion
- D Statutory Definition of Mediation
- (1) Structured Formal Process
- (2) Differing Models of Mediation
- (3) Conclusion
- E Statutory Definition of Conciliation
- F General Scope of Statutory Mediation & Conciliation
- (1) Civil & Commercial Disputes
- (2) Cross-Border Civil & Commercial Disputes
- G Conclusion
- CONCILIATION CHAPTER 3 GENERAL PRINCIPLES OF MEDIATION &
- A Introduction
- B Consultation Paper
- C Voluntary Nature of Mediation & Conciliation
- (1) Consultation Paper
- (2) Right to Withdraw from Mediation or Conciliation
- (3) Conclusion
- D Confidentiality
- (1) Consultation Paper
- (2) Increase of Satellite Litigation
- on Mediation (3) Confidentiality in the 2008 EC Directive
- & Conciliation (4) Distinct Form of Privilege for Mediation
- (5) Mediation and Conciliation Communications
- (6) Holders of the Privilege
- (7) Waiver of the Privilege
- (8) Exceptions to the Privilege
- of proceedings (9) Party expectations of confidentiality outside
- (10)Conclusion
- E Self-Determination
- (1) Consultation Paper
- (2) Capacity to Participate
- (3) Informed Consent
- Mediation or Conciliation (4) Seeking Independent Advice During a
- (5) Conclusion
- F Efficiency
- (1) Costs of Mediation or Conciliation
- (2) Duration of Mediation or Conciliation
- (3) ADR Efficiency & Public Sector Disputes
- G Legal Aid for Mediation and Conciliation
- H Flexibility
- I Neutrality & Impartiality
- (1) Consultation Paper
- (2) Duty to Disclose Conflict of Interests
- J Enforceability
- K Limitation Periods
- L Quality and Transparency of Procedure
- CHAPTER 4 ADR & THE CIVIL JUSTICE SYSTEM
- A Introduction
- B Enforceability of Dispute Resolution Clauses
- (1) Power to stay proceedings
- (2) Severability of mediation and conciliation clauses
- referral clause C Mediation or conciliation where there is no
- (1) Provision of Information on ADR
- (2) Role of Legal Representatives
- certificate (3) Requirement to file a mediation and conciliation
- (4) Conclusion
- Has Begun D Referral to Mediation or Conciliation After Litigation
- (1) Consultation Paper
- (2) Role of the Court in Encouraging ADR
- (3) Court-Annexed Mediation Scheme
- E Limitation Periods
- F Enforceability of Agreements
- (1) Self Determination & Enforceability
- (2) Enforcement as a contract
- (3) Enforcement by a Court
- G Costs: Sanctions and Recovery
- (1) Cost Sanctions: Good Faith Requirement
- (2) Criteria for Imposing a Costs Sanction xi
- (3) Recovery of Mediation and Conciliation Costs
- to Court H Content of Mediators and Conciliators Reports
- RELATIONS: THE ROLE OF ADR CHAPTER 5 EMPLOYMENT DISPUTES & INDUSTRIAL
- A Introduction
- B Employment Disputes & ADR: An Overview
- (1) Nature of Workplace Disputes
- C Private Workplace ADR & Dispute System Design
- D ADR Clauses in Employment Contracts
- E Conclusion
- CHAPTER 6 FAMILY DISPUTES & ADR
- A Introduction
- B Family Disputes in Ireland
- C Information Meetings - Family Courts (1) Consultation Paper on ADR & Report on
- (2) Mandatory Information Sessions
- D Parenting Plans
- E Family Mediation - in Ireland (1) Legislative Development of Family Mediation
- (2) Role of Advisers in Family Mediation
- (3) Enforcement & Review of Mediated Agreements
- (4) Voice of the Child in Family Mediation
- (5) Screening in Family Mediation
- F Collaborative Practice
- (1) Training for Collaborative Practitioners
- (2) Code of Practice for Collaborative Practitioners
- (3) Referral to Collaborative Practice
- (4) Conclusion
- G Family Probate Disputes & ADR
- (1) Estate & Succession Planning
- (2) Section 117 of the Succession Act
- H Elder Mediation
- (1) Family Disputes & Elder Transitions
- (2) Elder Mediation
- CHAPTER 7 PERSONAL INJURIES & ADR
- A Introduction
- B Consultation Paper
- C Clinical Claims & ADR: An Overview
- D Early Neutral Evaluation (ENE) - Early Neutral Evaluation (1) The Personal Injuries Assessment Board and - Evaluation (2) Medical Negligence Disputes & Early Neutral
- E Mediation & the Civil Liability and Courts Act
- Apology F An Open Disclosure Policy and the Power of an
- (1) Policy of Open Disclosure
- (2) The Power of an Apology
- CHAPTER 8 COMMERCIAL DISPUTES & ADR xii
- A Introduction
- B Commercial Disputes & ADR: An Overview - Strategies (1) Internal Corporate Dispute Resolution
- (2) ADR Clauses
- (3) ADR Corporate Pledge
- C Commercial Court & ADR
- D Shareholder Disputes & ADR
- E Construction Disputes & ADR - Works Contracts (1) ADR Clauses in Irish Government Public - Disputes (2) Role for Mediation in Resolving Construction
- F International Commercial Dispute Resolution
- G Conclusion
- CHAPTER 9 CONSUMER DISPUTES & ADR
- A Introduction
- B Consumer Disputes: An Overview
- C European Developments
- (1) Notified ADR Schemes: EC Recommendations
- (2) European Consumer Centre
- (3) Collective Consumer Redress
- D Online Dispute Resolution
- E Small Claims Court
- CHAPTER 10 PROPERTY DISPUTES & ADR
- A Introduction
- B Property Disputes: An Overview
- C Neighbour Disputes & ADR
- (1) Boundary Disputes
- (2) Community Mediation
- D Planning Application Disputes & ADR
- E Mediation and property-related debt
- CHAPTER 11 ACCREDITATION, TRAINING & REGULATION
- A Introduction
- B Regulation of Mediators & Conciliators
- (1) Consultation Paper
- Conciliators (2) Statutory Code of Conduct for Mediators and
- (3) Requirement for Training & Accreditation
- (4) Enforcement of the Code of Conduct
- CHAPTER 12 SUMMARY OF RECOMMENDATIONS
- APPENDIX DRAFT MEDIATION AND CONCILIATION BILL
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in the court process, the Commission also considers it is important to note that the court process has not stood still or ignored the problem of delay.
(3) The court process and ADR
- 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,^4 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.^5 In a wider setting, the Family Mediation Service^6 provides an important alternative resolution facility in the context of family conflicts. The Commission also notes in this respect that, in its Report on Consolidation and Reform of the Courts Acts ,^7 it has recommended that the existing Courts Acts, which comprise over 240 Acts (146 of which precede the foundation of the State in 1922) should be consolidated and reformed into a single Courts (Consolidation and Reform) Act. The Commission‘s draft Courts (Consolidation and Reform) Bill attached to that Report proposes a number of detailed reforms aimed at enhancing the effectiveness of the administration of justice in the courts. This would include enhancing the efficiency of civil proceedings, and would build on the important initiatives, such as those connected with the Commercial Court, which have been developed in Ireland in recent years. That Report includes proposals concerning judicial case management and the obligation on parties in civil proceedings to conduct their proceedings efficiently; as well as supporting current arrangements to inform parties, where appropriate, of alternative dispute processes, including mediation and conciliation.^8
(4) Efficiency, including cost efficiency
- Research 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.^9 That research also indicates that there is – to put it simply – no such thing as a free conflict resolution process, alternative or otherwise. Where the resolution process is provided through, for example, the courts or the Family Mediation Service, most or all of the financial cost is carried by the State. Where the resolution process involves private mediation, the cost is often shared by the parties involved. The Commission accepts, of course, that the additional financial costs involved in an individual case that goes through an unsuccessful mediation and must then be resolved in litigation has to be balanced against the possible savings where a complex case is successfully mediated. The Commission nonetheless considers it is important not to regard ADR as a patently cheaper alternative to litigation costs; in some instances, it may be, but where a mediation or conciliation is not successful it obviously involves additional expense. On the whole, the Commission accepts that careful and appropriate use of ADR processes is likely to reduce the overall financial costs of resolving disputes.
- In addition, the other aspect of efficiency – timeliness – may be of great value to the parties. The Commission is also conscious of other values associated with ADR processes, including party autonomy and respect for confidentiality. The point of noting the narrow issue of financial cost is primarily to indicate
(^4) See Chapter 8, below.
(^5) See Chapter 9, below.
(^6) See Chapter 6, below.
(^7) Report on Consolidation and Reform of the Courts Acts (LRC 97-2010).
(^8) Report on Consolidation and Reform of the Courts Acts (LRC 97-2010) , at paragraphs 2.35-240, and sections
75 to 77 of the draft Courts (Consolidation and Reform) Bill appended to the Report.
(^9) See LRC CP 50-2008 at 3.154-3.176.
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that the available research strongly supports the view that ADR assists timely resolution of disputes, but is less clear that direct financial costs savings may arise for the parties.^10
(5) Other benefits of ADR, including flexibility
- 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.^11 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.^12 A memorial to victims of a perceived wrong can also emerge from a mediated agreement.^13 The flexibility offered by ADR processes is an important aspect of a civil justice system in its widest sense.
(6) An integrated approach to dispute resolution
- Ultimately, therefore, the Commission envisages in this Report and the draft Mediation and Conciliation Bill an integrated approach to dispute resolution in which ADR plays an appropriate part, and in which it complements the role of the courts in resolving disputes. In that respect, the word ―alternative‖ in ―alternative dispute resolution‖ does not prevent the court-based dispute resolution 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. As the Commission makes clear in this Report and the draft Mediation and Conciliation Bill , mediation and conciliation should be clearly delineated as quite different from litigation as such, and can be initiated by parties completely independently of litigation. In the Report and the draft Bill, therefore, the Commission reflects the approach of the High Court that it will postpone, or stay, proceedings if the parties have already made an agreement that includes an ADR clause, such as a mediation or conciliation clause.^14 This mirrors the long-standing approach taken to arbitration clauses, now set out in the Arbitration Act 2110. Equally, mediation and conciliation can also appropriately arise from or otherwise be linked to litigation.^15 The Commission agrees that an integrated civil justice process includes a combination of ADR processes, such as mediation and conciliation, and the court-based litigation process.^16 Each process plays its appropriate role in meeting the needs of the parties involved and fundamental principles of justice. As noted by the current Chief Justice: ―For mediation as a process to take hold in this country
(^10) 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).
(^11) In the sense that ADR may involve a meeting between those in dispute and an apology from a wrongdoer it
involves a passing resemblance to restorative justice, but that is where the similarity ends. The Commission emphasises that ADR is associated solely with civil disputes and has no connection with restorative justice, which is connected with criminal law. The Commission‘s Third Programme of Law Reform 2008-2014 , Project 15, concerns restorative justice.
(^12) See LRC CP 50-2008 at 3.140-3.153.
(^13) See the discussion at paragraph 3.134, below, of the English mediation connected with the resolution of over
1,000 complaints concerning the retention of organs from deceased children at Alder Hey Hospital in Liverpool, arising from which an apology was made and a memorial built to remember the children.
(^14) See the discussion of the decision in Health Service Executive v Keogh, trading as Keogh Software [2009]
IEHC 419, at paragraph 4.04, below, which involved a software support contract. See also the discussion of the 2010 High Court proceedings in Clayton v Hawkins , an employment-related dispute, at paragraph 5.22, below.
(^15) See LRC CP 50-2008 at 1.72-1.73.
(^16) These complementary roles are reflected in the judgment in Plewa and Giniewicz v Personal Injuries
Assessment Board High Court, 19 October 2010, discussed at paragraph 7.17, below.
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- In Chapter 6, the Commission examines the role of ADR in resolving family law disputes, which the Commission previously addressed in its 1996 Report on Family Courts.^19 This includes a discussion of the need for information meetings for separating or divorcing couples. The Commission also discusses the recent emergence of collaborative practice and elder mediation in the family law setting. The Commission also discusses the appropriateness of mediation for resolving family probate/succession disputes.
- In Chapter 7, the Commission examines how ADR processes, in particular mediation and early neutral evaluation, could assist in the resolution of personal injury disputes, including disputes arising from medical treatment. The Commission also explores the role for early neutral evaluation in the resolution of personal injury claims, including claims arising from medical treatment. The Commission also considers the need for an open disclosure policy in the healthcare setting and the role of apologies in the resolution of personal injury disputes, particularly disputes arising from medical treatment.
- In Chapter 8, 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. The Commission also examines the role for ADR in the resolution of construction disputes.
- In Chapter 9, the Commission examines the development of ADR in resolving consumer disputes with a specific focus on European developments in this field. The Commission also examines whether the Small Claims Court procedure could be expanded to resolve more consumer disputes.
- In Chapter 10, the Commission explores the role of 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.
- In Chapter 11, the Commission addresses the accreditation, training and regulation of mediators and the various non-statutory and statutory schemes for assuring the quality of mediators. The Commission also outlines the need for a statutory code of conduct for mediators and conciliators.
- Chapter 12 contains the recommendations made by the Commission in the Report.
- The Appendix contains a draft Mediation and Conciliation Bill to give effect to the Commission‘s recommendations in the Report concerning the enactment of a statutory framework for mediation and conciliation.
(^19) Report on Family Courts (LRC 52 – 1996).
