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16 December 2010
On November 16 2010 the Law Reform Commission issued its Report on Alternative Dispute Resolution, specifically focusing on mediation and conciliation. The commission is an independent body established under the Law Reform Commission Act 1975 to make recommendations for law reform. The commission's current Third Programme of Law Reform 2008-2014, of which alternative dispute resolution (ADR) is one topic, was approved by the government in December 2007. The culmination of the commission's research and submission process is the presentation of a formal report, the recommendations of which are frequently reflected in legislation.
As a general principle, the commission has acknowledged in its report that ADR complements judicial procedures and that methods used in the context of ADR are often far better suited to the nature of the disputes involved. However, although it believes that mediation and conciliation form an integral part of a modern civil justice system, the processes should be used only in appropriate circumstances. The commission also stresses the importance of the legal profession in making disputants aware of the ADR processes available (by recommending a certificate to be signed by the disputant and their legal adviser, confirming that mediation or conciliation has been considered). The report contains many recommendations regarding mediation and conciliation, some of which reflect existing practice. The report's principal recommendations are detailed below.
The commission recommends that a statutory framework be established relating to specific forms of ADR, especially mediation and conciliation,(1) with each being clearly and separately defined in legislative form. For mediation, in particular, it recommends that any such definition reflect mediation:
"as a facilitative and confidential structured process in which the parties attempt by themselves, on a voluntary basis, to reach a mutually acceptable agreement to resolve their dispute with the assistance of an independent third party".
It also recommends that the key principles underlying mediation and conciliation be set out in statutory form.
The report suggests that the legislative framework for mediation and conciliation set out in the Mediation and Conciliation Bill appended to the report apply to domestic disputes only, and that this be separate from the obligation to implement the EU Mediation Directive (2008/52/EC).
The report also recommends that participation in mediation and conciliation be voluntary. Any party involved in a mediation or conciliation, and the mediator or conciliator, may withdraw from the process at any time and without explanation.
The report recommends that a court may, upon application by a party involved in proceedings or on its own motion, invite the parties to consider using mediation or conciliation in an attempt to settle proceedings. However, in deciding whether to do so, the court should consider whether mediation or conciliation has a reasonable prospect of success. If the parties agree, the court should adjourn proceedings and make orders to facilitate the process, including extending deadlines for compliance with directions. The existing court rules already permit the court to adjourn proceedings and invite the parties to use an ADR process, as well as allowing the court to extend deadlines for compliance with directions.
However, the report also recommends that where a court invites parties to consider using mediation or conciliation in respect of proceedings, refusal may have consequences. If it considers it just, the court may have regard to an unreasonable refusal by any party to mediate or conciliate where, in the court's opinion, such process had a reasonable prospect of success. This is a more qualified proposal than the existing court rules, which empower the High Court and Supreme Court, when awarding costs and where it is considered just, to have regard to a party's refusal or failure without good reason to participate in an ADR process.
The commission also recommends that confidentiality in mediation and conciliation be subject to a distinct form of privilege. However, such confidentiality privilege will not apply to disclosures which are:
The report envisages that this confidentiality privilege may be waived in litigation, although the waiver depends on the party whose privilege is under consideration. Thus, where the privilege of a party is concerned, the privilege should be expressly waived by all parties to the mediation or conciliation. However, if the privilege under consideration is that of the mediator or conciliator, that privilege should be expressly waived by the mediator or conciliator.
The commission suggests that the mediator or conciliator:
The commission envisages that a conciliator – as an independent third party which is actively to assist the parties in reaching a voluntary agreement – may make a proposal to the parties with regard to the resolution of the dispute, although such proposal may not be imposed on the parties.
The commission recommends that the mediator not be permitted to make such a proposal. The commission also recommends that the parties be permitted, at any stage of a mediation, to request the mediator to take on the role of a conciliator and that the process be converted to a conciliation.
The commission suggests that if a party to an agreement containing a mediation or conciliation clause commences proceedings against another party to the agreement in respect of any matter which the parties have previously agreed to submit to mediation or conciliation, the other party may apply to court to stay those proceedings. It also recommends that the court stay those proceedings, unless it is satisfied that the clause is inoperative, incapable of being performed or void, or that there is dispute with regard to the matters that the parties have agreed to subject to mediation or conciliation.
The report recommends that the government commit to the integration and use of ADR processes in resolving disputes within the public sector and in civil disputes to which the state is a party. It also recommends that organisations consider implementing internal dispute-handling systems incorporating mediation and conciliation to promote early resolution of employment disputes. It also identifies particular types of dispute as being appropriate for ADR. The commission also recommends that ADR be incorporated into all third-level programmes in law, as well as professional legal qualification courses, and other relevant professional studies (eg, engineering and accountancy).
The report recommends that a Statutory Code of Conduct for Mediators and Conciliators be established, to which all mediators and conciliators be obliged to adhere. It also recommends that all mediators and conciliators receive training and accreditation, and that the code of conduct set out uniform complaint, disciplinary and grievance procedures to be enforced by all professional mediation and conciliation bodies.
It remains to be seen how many of the commission's recommendations will be adopted by way of legislation, although it is likely that many – if not all – will eventually find their way onto the statute books in some form, particularly since a draft Mediation and Conciliation Bill is annexed to the report. However, ADR is already an important branch of dispute resolution in Ireland and, given this report, its role is likely to become increasingly important and formalised.
For further information please contact Gearoid Carey at Matheson Ormsby Prentice by telephone (+353 1 232 2000), fax (+353 1 232 3333) or email (firstname.lastname@example.org).
(1) According to the commission, arbitration – as a form of ADR and reflected by the Arbitration Act 2010 – should remain outside the scope of the framework on the basis that it does not deal with a non-binding process which empowers the parties to resolve potential or actual disputes themselves.
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