ALTERNATIVE DISPUTE RESOLUTION - Law Reform

DECHAPTER 11ABCDECHAPTER 12(2) Australia(3) Civil Mediation Council of England & Wales(4) Family Mediation Council in England andWales(5) Canada: Chartered Mediators(6) Global Quality Mark: International MediationInstitute(7) United States(8) AustriaEducation on ADRConclusion312315ROLE OF COURT & ADR325IntroductionRole of the Court in Encouraging ADR(1) Comparative Review(2) ConclusionCosts Sanctions(1) Costs Sanctions: Good Faith Requirement& Genuine Effort to Compromise(2) Costs Sanctions in England & Wales ―Unreasonable Refusal to Mediate‖(3) ConclusionMediator Reporting to the CourtRecovery of Mediation Costs325325326331332SUMMARY OF 3333634534634735351

TABLE OF LEGISLATIONArbitration (International Commerical) Act 19981998, No. 14IrlArbitration Act 19541954, No. 26IrlArbitration Act 19801980, No. 7IrlCentral Bank and Financial Services Authority ofIreland Act 20042004, No. 21IrlChild Family and Community Service Act 19961996, c.46CanChildren Act 19971997, No. 40IrlCivil Liability and Courts Act 20042004, No. 31IrlCivil Procedure Act 19971997, c.12EngCivil Procedure Act 2005 (NSW)2005, No. 28AusCompensation Act 20062006, c.29EngConsumer Protection Act 20072007, No. 19IrlDefence Act 19541954, No. 18IrlDisability Act 20052005, No. 14IrlDivorce Act 19851985, c.3CanEducation for Persons with Special Educational NeedsAct 20042004, No. 30IrlEmployment Equality Act 19981998, No. 21IrlEqual Status Act 20002000, No. 8IrlEquality Act 20042004, No. 24IrlFamily Law (Divorce) Act 19961996, No. 33IrlFamily Law Act 19751975, No. 53AusFamily Law Act 19961996, c.27EngFamily Law Amendment (Shared Responsibility) Act20062006, No. 46AusFamily Law Reform Act 19951995, No. 167AusFamily Proceedings Act 19801980, No. 94NZFamily Support Agency Act 20012001, No. 54Irlxvii

Garda Síochána Act 20052005, No. 20IrlGuardianship of Infants Act 19641964, No. 7IrlHealth (Repayment Scheme) Act 20062006, No. 17IrlHealth and Social Care Professionals Act 20052005, No. 27IrlIndustrial Relations Act 19901990, No. 19IrlInterstate Commercial Act 1887USJudicial Separation and Family Law Reform Act 19891989, No. 6IrlMedical Practitioners Act 20072007, No. 25IrlNational Economic and Social Development Office Act20062006, No. 21IrlNational Minimum Wage Act 20002000, No. 5IrlNewlands Act 1913USOmbudsman (Defence Forces) Act 20042004, No. 36IrlOmbudsman Act 19801980, No. 26IrlOmbudsman for Children Act 20022002, No. 22IrlOrganisation of Working Time Act 19971997, No. 20IrlPensions (Amendment) Act 20022002, No. 18IrlPensions Act 19901990, No. 25IrlProtection of Employees (Fixed-Term Work) Act 20032003, No. 29IrlProtection of Employees (Part-Time Work) Act 20012001, No. 45IrlRedundancy Payments Act 19671967, No. 21IrlResidential Tenancies Act 20042004, No. 27IrlSuccession Act 19651965, No. 27IrlUnfair Dismissals Act 19771977, No. 10Irlxviii

TABLE OF CASESAiton Australia Pty Ltd vTransfield Pty Ltd(1999) 153 FLR 236AusAlan Wibberley Building Ltd vInsley[1998] 2 All ER 82EngAl-Khatib v Masry[2004] EWCA Civ 1353EngBarker v Johnson[1999] EWCA (Civ)EngBrown v Rice & Patel[2007] EWHC 625EngBurchell v Marshall[1854] 58 U.S. 344USABurne v 'A'[2006] EWCA Civ 24EngCable and Wireless plc v IBMplc[2002] EWHC 2059 (Comm)EngCarleton Seventh Earl ofMalmesbury v Strutt & Parker[2008] EWHC 424EngChannel Tunnel Group Ltd vBalfour Beatty Construction Ltd[1993] AC 334EngChantrey Vellacott vConvergence Group plc[2007] All ER 492EngCharlton v Kenny2006, No. 4266PIrlCook v Carroll[1945] IR 515IrlCowl v Plymouth City Council[2001] EWCA Civ 1935EngCutts v Head[1984] Ch 290EngDevlin v The National MaternityHospital[2007] IESC 50IrlDickinson v Brown[2001] NSWSC 714AusDunnett v Railtrack plc[2002] 2 All ER 850EngEgan v Motor Services (Bath)Ltd[2007] EWCA Civ 1002EngForster v Friedland[1992] CAT 1052EngFyffes v DCC[2007] IESC 36IrlGreencore Group plc v Murphy[1995] 3 IR 520Irlxix

Hall v Pertemps Group Ltd[2005] EWHC 3110 (Ch)EngHaycocks v Neville[2007] EWCA (Civ)EngHurst v Leeming[2001] EWCA Ch 1051EngIDA Ltd v University ofSouthampton[2006] EWCA Civ. 145EngInstance v Denny Bros Printing[2001] EWCA Civ 939EngKeenan v Shield Insurance CoLtd[1988] IR 89IrlLobster Group Ltd v HeidelbergGraphic Equipment Ltd[2008] EWHC 413 (TCC)EngMorrow v Chinadotcom Corp[2001] NSWSC 209AusMunt v Beasley[2006] EWCA 370EngNational Westminster Bank vFeeney[2006] EWHC 90066EngO'Connor v Lenihan2001, No. 13001PIrlO'Neill v Ryanair (No 3)[1992] 1 IR 166IrlReed Executive plc v ReedBusiness Information Ltd[2004] EWCA Civ 159EngRemuneration Planning Corp Pty Ltd v Fitton[2001] NSWSC 598AusRoyal Bank of Soctland vSecretary of State of Defence[2003] EWHC 1479 ChEngRyan v Connolly[2001] 2 IRLM 174IrlScammell v Dicker[2005] EWCA 405 (Civ)EngScott v Avery(1856) 5 HLC 811AusShirayama Shokusan v DanovoLtd[2003] EWHC Ch 3006EngThe Health Board v BC and theLabour Court[1994] ELR 27IrlThompson v Commissioner ofPolice of the Metropolis[1998] QB 498EngUnilever plc v Proctor & GambleCo[2001] 1 All ER 783Engxx

Venture Investment PlacementLtd v Hall[2005] EWHC 1227EngWalker v Wilshire[1889] 23 QBD 335EngWaterhouse v Perkins[2001] NSWSC 13Ausxxi

INTRODUCTIONABackground to the project1.This Consultation Paper forms part of the Commission‘s ThirdProgramme of Law Reform 2008-2014,1 under which the Commission iscommitted to examining, and exploring reform options for, the main processesof alternative dispute resolution (ADR)2 and associated key principles. As theConsultation Paper indicates, the main ADR processes are mediation andconciliation. A number of new processes have also emerged in specific areas,such as collaborative lawyering in the family law setting. Because this is a fastmoving and emerging area, in respect of which there is no clear framework ofrelevant principles, the Consultation Paper also places significant emphasis onexploring the key principles of ADR, including its voluntary nature, the need forconfidentiality, its efficiency and the transparency and quality of the process.BThe Commission’s approach to alternative dispute resolution2.In preparing this Consultation Paper, the Commission‘s approach isbased on the key objective that civil disputes are resolved in a way that meetsthe needs of the parties and conforms to fundamental principles of justice. Thisobjective involves several related issues, which the Commission sets out herein order to describe its overall approach to ADR.(1)The role of the courts in encouraging parties to agree solutions3.It is clear that, from one perspective, the word ―alternative‖ refers tolooking outside the courtroom setting to resolve some disputes. In this respect,the Commission fully supports the long-standing approach of the legalprofession and of the courts that, where it is appropriate, parties involved in civildisputes should be encouraged to explore whether their dispute can beresolved by agreement, whether directly or with the help of a third partymediator 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, inlarge and small commercial claims and in boundary and other property disputesbetween neighbours. In that respect there are strong reasons to support and1See Report on the Third Programme of Law Reform 2008 - 2014 (LRC 86 –2007). Project 5 in the Third Programme commits the Commission to examine themain processes of alternative dispute resolution, on which the Commission beganwork under its Second Programme of Law Reform 2000-2007.2In the Consultation Paper, the Commission sometimes uses the full titleAlternative Dispute Resolution and sometimes the acronym ADR.1

encourage parties to reach a solution through agreement, especially in disputeswhere emotional issues combine with legal issues, provided that this alternativeprocess meets fundamental principles of justice.(2)Delays in the court process and the development of ADR4.In addition to the recognition by the legal profession and the courtsthat some disputes would be better resolved by agreement rather than courtdecision, the emergence in Ireland (and internationally) of alternative disputeresolution processes has also been associated with real problems of delays inthe court system. An undoubted advantage of mediation and conciliation is theability to get speedy access to a process that may produce a satisfactoryoutcome for the parties in a short space of time. The Commission accepts thatany long delays in the court process involve clear barriers to justice: justicedelayed is, indeed, justice denied. While some ADR processes may haveemerged in response to delays in the court process, the Commission alsoconsiders it is important to note that the court process has not stood still orignored the problem of delay.(3)The response to delays in the court process and relatedservices5.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 wasestablished in 2004 to deal with large commercial disputes, 3 uses active judicialcase management to improve the efficiency of the litigation process itself andalso encourages the use of mediation and conciliation. Similarly, the SmallsClaims Court in the District Court is a mediation process for certain consumerdisputes (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 adocument-only approach.4 In a wider setting, the Family Mediation Service,which forms part of the statutory Family Support Agency, 5 provides an importantalternative resolution facility in the context of family conflicts.(4)Efficiency, including cost efficiency6.The research presented in this Consultation Paper on the efficiencyof ADR processes (some based on Irish experience) indicates that mediationand conciliation processes often provide a speedy resolution to a specificdispute. That research also indicates that there is – to put it simply – no such3See Chapter 7, below.4See Chapter 8, below.5See Chapter 5, below.2

thing as a free conflict resolution process, alternative or otherwise. Where theresolution process is provided through, for example, the courts or the FamilyMediation Service, most or all of the financial cost is carried by the State.Where the resolution process involves private mediation, the cost is oftenshared by the parties involved. The Commission accepts, of course, that theadditional financial costs involved in an individual case that goes through anunsuccessful mediation and must then be resolved in litigation has to bebalanced against the possible savings where a complex case is successfullymediated. The Commission nonetheless considers it is important not to regardADR as a patently cheaper alternative to litigation costs; in some instances, itmay be, but where a mediation is not successful it obviously involves additionalexpense. On the whole, careful and appropriate use of ADR processes is likelyto reduce the overall financial costs of resolving disputes.7.In addition, the other aspect of efficiency – timeliness – may be ofgreat value to the parties. The Commission is also conscious of other valuesassociated with ADR processes, including party autonomy and respect forconfidentiality, which are discussed in detail in the Consultation Paper. Thepoint of noting the narrow issue of financial cost is primarily to indicate that theresearch referred to in this Consultation Paper strongly supports the view thatADR assists timely resolution of disputes, but is less clear that direct financialcosts savings may arise for the parties.6(5)Other benefits of ADR, including flexibility8.The Commission appreciates that ADR processes also bringadditional benefits that are not available through the litigation process. ADRprocesses may, for example, lead to a meeting between parties where anapology is offered.7 They can also facilitate an aggrieved party to participate inthe creation of new arrangements or procedures to prevent a recurrence of theincident in dispute. This underlines a key element of ADR, that it has thepotential to enhance the empowerment of those involved in its processes. A6The Commission does not, in this respect, ignore the indications in the researchof indirect cost savings that may arise from speedy resolution of, for example,large commercial disputes (whether in the reduced time required of seniormanagement or long term savings through the preservation of businessrelationships).7In the sense that ADR may involve a meeting between those in dispute and anapology from a wrongdoer it involves a passing resemblance to restorativejustice, but that is where the similarity ends. The Commission emphasises thatADR is associated solely with civil disputes and has no connection withrestorative justice, which is connected with criminal law. The Commission‘s ThirdProgramme of Law Reform 2008-2014, Project 15, concerns restorative justice.3

memorial to victims of a perceived wrong can also emerge from a mediatedagreement. The flexibility offered by ADR processes is an important aspect of acivil justice system in its widest sense.(6)An integrated approach to dispute resolution9.In making these general points, the Commission wishes to makeclear that the word ―alternative‖ in ―alternative dispute resolution‖ should not beseen as preventing the court process from continuing to play a positive role inresolving disputes by agreement. This can be through the long-establishedpractice of intervening at a critical moment in litigation to suggest resolution byagreement or though the structured innovations of, for example, theCommercial Court or the Small Claims Court. In that respect, as the detaileddiscussion in the Consultation Paper points out, while mediation and conciliationshould be clearly delineated as quite different from litigation as such, they canalso be appropriately linked to litigation. The Commission agrees that anintegrated 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 partiesinvolved and fundamental principles of justice.(7)Individual and collective dispute resolution10.The discussion of dispute resolution in the preceding paragraphslargely envisages individual disputes, such as a boundary dispute betweenneighbours or a family law dispute. In preparing this Consultation Paper, and inparticular in determining the scope of the analysis, the Commission was acutelyaware that disputes do not always involve two parties only. The Commissionhad previously examined multi-party litigation, such as the Army deafnessclaims of the 1990s,8 and was therefore conscious that legal processes, such aslitigation, must resolve collective disputes as well as individual disputes. TheCommission discusses in the Consultation Paper the successful resolutionthrough mediation of the English Group Litigation concerning organ retention byAlder Hey Hospital, Liverpool.911.In this respect, the Consultation Paper includes a discussion andanalysis of the many different forms in which dispute resolution takes place in acollective setting as well as the individual setting. For example, the longestablished mediation and conciliation services of the Labour RelationsCommission and the Labour Court10 almost invariably involve the resolution of8See the Commission‘s Report on Multi-Party Litigation (LRC 76 - 2005).9See paragraph 1.14, below.10See Chapter 4, below.4

industrial relations disputes directly affecting a collective group of employeesand, sometimes indirectly, the general public.(8)Collective uite often, the distinction between individual and collective disputesis blurred and the solutions found are not ordinarily described as alternativedispute resolution. For example, the Commission has recently completed ananalysis of multi-unit apartment complexes and made proposals for reform.11 Inapartment complexes, the individual disputes between unit owners, developersand property managing agents over, for example, the level of propertymanagement fees could, at one level, be dealt with through litigation ormediation. Because of the scale and diversity of the problems, other solutionsmay also be required. In this, respect, the National Consumer Agency, which isprimarily a regulatory body, played a type of dispute resolution role byfacilitating discussion between relevant representative bodies through aConsumers Forum on Apartment Complexes. This Forum produced templateforms of contracts to be used by unit owners and property managing agents thathave the potential to prevent future disputes in this area. 1213.The intervention of the National Consumer Agency in this way iscomparable to how an Ombudsman can exercise his or her powers to ensureappropriate resolution of disputes. It has often happened that an Ombudsmanmay receive a series of individual complaints about a particular problem andthat these complaints are investigated collectively in order to prevent futurerecurrences.1314.The Commission notes that, similarly, a professional body withregulatory or disciplinary functions, such as the Medical Council, 14 may berequired to oversee the individual conduct of its profession against certaincriteria in order to prevent poor

Barrister-at-Law LEGISLAT ION DIRECTO. RY. Project Manager for Legislation Directory: Heather Mahon LLB (ling. Ger.), M.Litt., Barrister-at-Law . Legal Researchers: Margaret Devaney LLB Eóin McManus BA, LLB (NUI), LLM (Lond) vi ADMINISTRATION STAFF Head of Administration and Development: