ALTERNATIVE DISPUTE MEDIATION AND CONCILIATION - Law Reform

HCHAPTER 5(2) Criteria for Imposing a Costs Sanction(3) Recovery of Mediation and Conciliation CostsContent of Mediators and Conciliators Reportsto CourtEMPLOYMENT DISPUTES & INDUSTRIALRELATIONS: THE ROLE OF ADRABCDECHAPTER 6ABCDEFGHCHAPTER 7ABCDEF91939497IntroductionEmployment Disputes & ADR: An Overview(1) Nature of Workplace DisputesPrivate Workplace ADR & Dispute System DesignADR Clauses in Employment ContractsConclusion97979798102102FAMILY DISPUTES & ADR105Introduction105Family Disputes in Ireland105Information Meetings106(1) Consultation Paper on ADR & Report onFamily Courts106(2) Mandatory Information Sessions107Parenting Plans109Family Mediation110(1) Legislative Development of Family Mediationin Ireland111(2) Role of Advisers in Family Mediation112(3) Enforcement & Review of Mediated Agreements113(4) Voice of the Child in Family Mediation114(5) Screening in Family Mediation116Collaborative Practice117(1) Training for Collaborative Practitioners118(2) Code of Practice for Collaborative Practitioners 119(3) Referral to Collaborative Practice121(4) Conclusion121Family Probate Disputes & ADR121(1) Estate & Succession Planning122(2) Section 117 of the Succession Act 1965123Elder Mediation125(1) Family Disputes & Elder Transitions125(2) Elder Mediation126PERSONAL INJURIES & ADR129IntroductionConsultation PaperClinical Claims & ADR: An OverviewEarly Neutral Evaluation (ENE)(1) The Personal Injuries Assessment Board andEarly Neutral Evaluation(2) Medical Negligence Disputes & Early NeutralEvaluationMediation & the Civil Liability and Courts Act 2004An Open Disclosure Policy and the Power of anApology(1) Policy of Open Disclosure(2) The Power of an Apology129129129132xi132133135137137139

CHAPTER 8ABCDEFGCHAPTER 9ABCDECHAPTER 10ABCDECHAPTER 11ABCHAPTER 12APPENDIXCOMMERCIAL DISPUTES & ADR143IntroductionCommercial Disputes & ADR: An Overview(1) Internal Corporate Dispute ResolutionStrategies(2) ADR Clauses(3) ADR Corporate PledgeCommercial Court & ADRShareholder Disputes & ADRConstruction Disputes & ADR(1) ADR Clauses in Irish Government PublicWorks Contracts(2) Role for Mediation in Resolving ConstructionDisputesInternational Commercial Dispute ResolutionConclusion143143CONSUMER DISPUTES & ADR157IntroductionConsumer Disputes: An OverviewEuropean Developments(1) Notified ADR Schemes: EC Recommendations(2) European Consumer Centre(3) Collective Consumer RedressOnline Dispute ResolutionSmall Claims Court157157159159161163164166PROPERTY DISPUTES & ADR169IntroductionProperty Disputes: An OverviewNeighbour Disputes & ADR(1) Boundary Disputes(2) Community MediationPlanning Application Disputes & ADRMediation and property-related debt169169171171174176177ACCREDITATION, TRAINING & REGULATION179IntroductionRegulation of Mediators & Conciliators(1) Consultation Paper(2) Statutory Code of Conduct for Mediators andConciliators(3) Requirement for Training & Accreditation(4) Enforcement of the Code of Conduct179179179SUMMARY OF RECOMMENDATIONS187DRAFT MEDIATION AND CONCILIATION BILL 2010xii145146146147148149149150152154180183185197

INTRODUCTIONABackground to the Report1.This Report forms part of the Commission‘s Third Programme of Law Reform 2008-20141 andfollows the publication of its Consultation Paper on Alternative Dispute Resolution.2 The Report containsthe Commission‘s final recommendations in this area. The main alternative dispute resolution (ADR)processes are mediation and conciliation, and the Consultation Paper and this Report have focused onthese. The Commission recommends in this Report that a Mediation and Conciliation Act should beenacted to provide a clear framework for mediation and conciliation, and the Appendix contains a draftMediation and Conciliation Bill to give effect to the Commission‘s recommendations. In that respect, theCommission places significant emphasis on the key principles involved in ADR, including its voluntarynature, the need for confidentiality, its efficiency and the transparency and quality of the process. TheCommission is also conscious that a number of related processes have also emerged in specific areas,such as collaborative practice in the family law setting and early neutral evaluation in the context ofpersonal injuries. While the Report and draft Bill therefore concentrate on providing a legislativeframework for mediation and conciliation, the Commission has also had regard to these emergingdevelopments.BThe Commission’s approach to alternative dispute resolution, in particular mediationand conciliation2.In preparing its Consultation Paper and this Report, the Commission‘s approach is based on thekey objective that civil disputes are resolved in a way that meets the needs of the parties and conforms tofundamental principles of justice. This objective involves several related issues, which the Commissiondescribed in the Consultation Paper and reiterates here to underline its overall approach to ADR, notablymediation and conciliation.(1)The role of the courts in encouraging parties to agree solutions3.It is clear that, from one perspective, the word ―alternative‖ refers to looking outside the courtroomsetting to resolve some disputes. In this respect, the Commission fully supports the long-standingapproach of the legal profession and of the courts that, where it is appropriate, parties involved in civildisputes should be encouraged to explore whether their dispute can be resolved by agreement, whetherdirectly 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 andsmall commercial claims and in boundary and other property disputes between neighbours. 3 In thatrespect there are strong reasons to support and encourage parties to reach a solution throughagreement, especially in disputes where emotional issues combine with legal issues, provided that thisalternative process 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 courts that some disputes can bebetter resolved by agreement rather than court decision, the emergence in Ireland (and internationally) ofalternative dispute resolution processes has also been associated with real problems of delays in thecourt system. An undoubted advantage of mediation and conciliation is the ability to get speedy access toa process that may produce a satisfactory outcome for the parties in a short space of time. TheCommission accepts that any long delays in the court process involve clear barriers to justice: justicedelayed is, indeed, justice denied. While some ADR processes may have emerged in response to delays1Report on the Third Programme of Law Reform 2008 - 2014 (LRC 86 – 2007), Project 5.2Consultation Paper on Alternative Dispute Resolution (LRC CP 50-2008), referred to as the ConsultationPaper in the remainder of this Report.3See, for example, the discussion of the mediation arising from the 2008 High Court case Charlton v Kenny, atparagraph 10.18, below.1

in the court process, the Commission also considers it is important to note that the court process has notstood still or ignored the problem of delay.(3)The court process and ADR5.The court process in Ireland has responded to the problem of delay - and the connecteddevelopment of ADR processes - with important initiatives. For example, the Commercial Court list in theHigh Court, which was established in 2004 to deal with large commercial disputes, 4 uses active judicialcase management to improve the efficiency of the litigation process itself and also encourages the use ofmediation and conciliation. Similarly, the Smalls Claims Court in the District Court is a mediation processfor certain consumer disputes (which can be filed on-line and is available for a small handling fee), underwhich the first step is to seek informal resolution of the dispute using a document-only approach.5 In awider setting, the Family Mediation Service6 provides an important alternative resolution facility in thecontext of family conflicts. The Commission also notes in this respect that, in its Report on Consolidationand Reform of the Courts Acts,7 it has recommended that the existing Courts Acts, which comprise over240 Acts (146 of which precede the foundation of the State in 1922) should be consolidated and reformedinto a single Courts (Consolidation and Reform) Act. The Commission‘s draft Courts (Consolidation andReform) Bill attached to that Report proposes a number of detailed reforms aimed at enhancing theeffectiveness of the administration of justice in the courts. This would include enhancing the efficiency ofcivil proceedings, and would build on the important initiatives, such as those connected with theCommercial Court, which have been developed in Ireland in recent years. That Report includes proposalsconcerning judicial case management and the obligation on parties in civil proceedings to conduct theirproceedings 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 efficiency6.Research on the efficiency of ADR processes (some based on Irish experience) indicates thatmediation and conciliation processes often provide a speedy resolution to a specific dispute. 9 Thatresearch 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 theFamily Mediation Service, most or all of the financial cost is carried by the State. Where the resolutionprocess involves private mediation, the cost is often shared by the parties involved. The Commissionaccepts, of course, that the additional financial costs involved in an individual case that goes through anunsuccessful mediation and must then be resolved in litigation has to be balanced against the possiblesavings where a complex case is successfully mediated. The Commission nonetheless considers it isimportant not to regard ADR as a patently cheaper alternative to litigation costs; in some instances, it maybe, but where a mediation or conciliation is not successful it obviously involves additional expense. Onthe whole, the Commission accepts that careful and appropriate use of ADR processes is likely to reducethe overall financial costs of resolving disputes.7.In addition, the other aspect of efficiency – timeliness – may be of great value to the parties. TheCommission is also conscious of other values associated with ADR processes, including party autonomyand respect for confidentiality. The point of noting the narrow issue of financial cost is primarily to indicate4See Chapter 8, below.5See Chapter 9, below.6See Chapter 6, below.7Report on Consolidation and Reform of the Courts Acts (LRC 97-2010).8Report on Consolidation and Reform of the Courts Acts (LRC 97-2010), at paragraphs 2.35-240, and sections75 to 77 of the draft Courts (Consolidation and Reform) Bill appended to the Report.9See LRC CP 50-2008 at 3.154-3.176.2

that the available research strongly supports the view that ADR assists timely resolution of disputes, butis less clear that direct financial costs savings may arise for the parties. 10(5)Other benefits of ADR, including flexibility8.The Commission appreciates that ADR processes also bring additional benefits that are notavailable through the litigation process. ADR processes may, for example, lead to a meeting betweenparties where an apology is offered.11 They can also facilitate an aggrieved party to participate in thecreation of new arrangements or procedures to prevent a recurrence of the incident in dispute. Thisunderlines a key element of ADR – that it has the potential to enhance the empowerment of thoseinvolved in its processes.12 A memorial to victims of a perceived wrong can also emerge from a mediatedagreement.13 The flexibility offered by ADR processes is an important aspect of a civil justice system in itswidest sense.(6)An integrated approach to dispute resolution9.Ultimately, therefore, the Commission envisages in this Report and the draft Mediation andConciliation Bill an integrated approach to dispute resolution in which ADR plays an appropriate part, andin 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 fromcontinuing to play a positive role in resolving disputes by agreement. This can be through the longestablished practice of intervening at a critical moment in litigation to suggest resolution by agreement orthough the structured innovations of, for example, the Commercial Court or the Small Claims Court. Asthe Commission makes clear in this Report and the draft Mediation and Conciliation Bill, mediation andconciliation should be clearly delineated as quite different from litigation as such, and can be initiated byparties completely independently of litigation. In the Report and the draft Bill, therefore, the Commissionreflects the approach of the High Court that it will postpone, or stay, proceedings if the parties havealready made an agreement that includes an ADR clause, such as a mediation or conciliation clause. 14This mirrors the long-standing approach taken to arbitration clauses, now set out in the Arbitration Act2110. Equally, mediation and conciliation can also appropriately arise from or otherwise be linked tolitigation.15 The Commission agrees that an integrated civil justice process includes a combination of ADRprocesses, such as mediation and conciliation, and the court-based litigation process.16 Each processplays its appropriate role in meeting the needs of the parties involved and fundamental principles ofjustice. As noted by the current Chief Justice: ―For mediation as a process to take hold in this country10The Commission does not, in this respect, ignore the indications in the research of indirect cost savings thatmay arise from speedy resolution of, for example, large commercial disputes (whether in the reduced timerequired of senior management or long term savings through the preservation of business relationships).11In the sense that ADR may involve a meeting between those in dispute and an apology from a wrongdoer itinvolves a passing resemblance to restorative justice, but that is where the similarity ends. The Commissionemphasises 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, Project15, concerns restorative justice.12See LRC CP 50-2008 at 3.140-3.153.13See the discussion at paragraph 3.134, below, of the English mediation connected with the resolution of over1,000 complaints concerning the retention of organs from deceased children at Alder Hey Hospital inLiverpool, arising from which an apology was made and a memorial built to remember the children.14See 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 ofthe 2010 High Court proceedings in Clayton v Hawkins, an employment-related dispute, at paragraph 5.22,below.15See LRC CP 50-2008 at 1.72-1.73.16These complementary roles are reflected in the judgment in Plewa and Giniewicz v Personal InjuriesAssessment Board High Court, 19 October 2010, discussed at paragraph 7.17, below.3

there is a need to heighten public consciousness as well as that of legal practitioners and otherprofessions of its usefulness, its value and its availability.‖ 17(7)The main focus of the Report10.The Commission‘s main focus in the Report can be divided into three areas in respect of which itmakes recommendations. First, the Commission examines the terminology associated with ADR, inparticular the need for a consistent definition of mediation and conciliation, and the underlying generalprinciples concerning these ADR processes. The purpose of this is to seek to achieve consistency in theuse of terminology surrounding ADR and the key underlying principles. The second area of focus is onthe application of mediation and conciliation in specific areas, including family law disputes, commercialdisputes and property disputes. The purpose here is to address more specific matters in these settingswhich the Commission considers may be in need of further clarification or development. The third areaconcerns the training and regulation of ADR professionals. The Commission regards this as a vital aspectof ensuring the quality of justice likely to be achieved through ADR.COutline of Report Chapters11.Having described its general approach to alternative dispute resolution, the Commission turns toprovide a brief outline of each Chapter in the Report.12.In Chapter 1, the Commission provides an overview of ADR and its role in a modern civil justicesystem and discusses the principle of access to justice and its relationship with ADR. The Commissionalso examines the appropriateness and limitations of ADR processes such as mediation and conciliation.13.In Chapter 2, the Commission examines ADR terminology and the scope of ADR processes. TheCommission explains why it is necessary to ensure that the more commonly used ADR terms, inparticular mediation and conciliation, are clearly defined and provides recommendations for statutorydefinitions of these processes14.In Chapter 3, the Commission examines the main objectives and principles of mediation andconciliation. These include: the voluntary nature of ADR, the principle of confidentiality, principles of selfdetermination and party empowerment, the objective of ensuring efficiency, flexibility, neutrality andimpartiality of the mediator or conciliator and the quality of the process for the parties.15.In Chapter 4, the Commission examines the integration of mediation and conciliation into the civiljustice system. The Commission discusses the following issues: the enforceability of mediation andconciliation clauses; referral methods to mediation and conciliation where there is no mediation orconciliation clause between the parties; the manner in which parties engage in mediation or conciliationafter litigation has begun; whether the parties in a mediation or conciliation may agree in writing tosuspend the running of any limitation period; the enforceability of agreements reached through mediationor conciliation; the issues of costs and the guidelines to be used when imposing a costs sanction for anunreasonable refusal to consider mediation or conciliation; and whether mediation costs should berecoverable as legal costs.16.In Chapter 5, the Commission examines the role of ADR processes, such as mediation andconciliation, in the resolution of workplace disputes which have not been referred to a statutory body.Ireland has a comprehensive set of statutory bodies which are res

35-39 Shelbourne Road Dublin 4 Ireland 353 1 6377600 info@lawreform.ie www.lawreform.ie ADDRESS TELEPHONE FAX EMAIL WEBSITE 353 1 6377601 The Law Reform Commission is a statutory body established by the Law Reform Commission Act 1975 ALTERNATIVE DISPUTE RESOLUTION: MEDIATION AND CONCILIATION REPORT LRC 98-2010