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Alternative Dispute Resolution ALTERNATIVE DISPUTE RESOLUTION (LRC CP 50 – 2008) CONSULTATION PAPER ALTERNATIVE DISPUTE RESOLUTION (LRC CP 50 - 2008) © COPYRIGHT Law Reform Commission FIRST PUBLISHED July 2008 ISSN 1393 – 3140 i 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 modernize the law. Since it was established, the Commission has published over 140 documents 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. 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 O‘Donnell, Senior Counsel iv LAW REFORM RESEARCH STAFF Director of Research: Raymond Byrne BCL, LLM (NUI), Barrister-at-Law Legal Researchers: Áine Clancy BCL, LLM (NUI) Philip Flaherty BCL, LLM (NUI), Diop sa GH (NUI) Eleanor Leane LLB, LLM (NUI) Gemma Ní Chaoimh BCL, LLM (NUI) Verona Ní Dhrisceoil BCL (Dlí agus Gaeilge), LLM (NUI) Jane O‘Grady BCL, LLB (NUI ), LPC (College of Law) Charles O‘Mahony BA, LLB (NUI), LLM (Lond), LLM (NUI) Ciara Staunton BCL, LLM (NUI), Diop sa GH (NUI) STATUTE LAW RESTATEMENT Project Manager for Restatement: Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor Legal Researchers: John P. Byrne BCL, LLM (NUI), Barrister-at-Law Elizabeth Fitzgerald LLB, M.Sc. (Criminology & Criminal Justice), Barrister-at-Law LEGISLAT ION DIRECTORY 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) v 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: [email protected] 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 1 A Background to the project 1 B The Commission‘s approach to alternative dispute resolution 1 (1) The role of the courts in encouraging parties to agree solutions 1 (2) Delays in the court process and the development of ADR 2 (3) The response to delays in the court process and related services 2 (4) Efficiency, including cost efficiency 2 (5) Other benefits of ADR, including flexibility 3 (6) An integrated approach to dispute resolution 4 (7) Individual and collective dispute resolution 4 (8) Collective disputes and regulatory bodies, including Ombudsmen 5 (9) The main focus of the Consultation Paper 6 C Outline of Consultation Paper Chapters 6 CHAPTER 1 ALTERNATIVE DISPUTE RESOLUTION IN CONTEXT: ORIGINS & DEVELOPMENT OF ADR 9 A Introduction 9 B Resolution of Disputes 9 (1) The Nature of Disputes 9 (2) Dispute Resolution & Civil Justice 12 (3) Appropriate Dispute Resolution 15 C The Development of ADR: An Overview 20 (1) ADR in Classical Times 20 (2) ADR in Traditional Societies 21 (3) Development of Civil & Commercial ADR 24 D Conclusion 34 CHAPTER 2 ADR PROCESSES & TERMINOLOGY 37 A Introduction 37 B ADR Terminology: An Overview 37 C Definition of ADR 39 D Classification of the ADR Spectrum 40 ix E Preventive ADR Processes 41 (1) Negotiation 42 (2) Partnering 44 (3) ADR Clauses 45 F Facilitative ADR Processes 46 (1) Mediation 46 G Advisory ADR Processes 48 (1) Conciliation 49 (2) Collaborative Lawyering 49 H Determinative ADR Processes 50 (1) Arbitration 50 (2) Hybrid Models including combinations of mediation and arbitration: Med-Arb and Arb-Med 52 (3) Adjudication 53 (4) Expert Determination 54 I Collective ADR 55 (1) Ombudsman Schemes 56 J Judicial ADR Processes. 67 (1) Small Claims Court 68 (2) Early Neutral Evaluation 68 (3) Mini Trial 69 (4) Court Settlement Process 70 K Conclusion 71 CHAPTER 3 GENERAL PRINCIPLES AND OBJECTIVES OF ADR 73 A Introduction 73 B Voluntary Nature of ADR Processes 74 (1) An Overview 74 (2) Forms of Referral to Mediation or Conciliation 75 (3) Party-Driven Mediation 76 (4) Court-Annexed ADR Schemes 80 (5) Voluntary Schemes v Compulsory Schemes & the Impact of Costs Sanctions: England & Wales 92 (6) Conclusion 100 C Confidentiality 101 (1) Protection of Confidentiality: An Overview 101 (2) Agreement Guaranteeing Confidentiality 102 (3) ‗Without Prejudice‘ Communications 102 (4) Distinct Mediation Privilege 108 (5) Conclusion 111 x D Self-Determination 112 (1) An Overview of Self Determination 113 (2) Informed Consent 114 (3) Conclusion 115 E Efficiency 116 (1) Cost Efficiency 117 (2) Time Efficiency 120 (3) Conclusion 122 F Flexibility 122 (1) Procedural Flexibility 123 (2) Flexibility of Outcome 123 G Neutrality & Impartiality 124 H Quality and Transparency of Procedure 125 I European Directive and Principles of Mediation 126 (1) Voluntary Nature of Mediation 127 (2) Confidentiality 128 (3) Self Determination 130 (4) Efficiency 130 (5) Neutrality & Impartiality of Mediators 130 (6) Flexibility 131 (7) Quality & Transparency of Process 131 (8) Enforceability of Mediated Agreements 131 (9) Limitation Periods 132 J Conclusion 133 CHAPTER 4 EMPLOYMENT DISPUTES & INDUSTRIAL RELATIONS: THE ROLE OF ADR 135 A Introduction 135 B Employment Disputes: An Overview 135 C Labour Relations Commission 138 (1) Conciliation Service 139 (2) Advisory Services Division 143 (3) Rights Commissioner Services 145 (4) Workplace Mediation Service 148 D The Equality Tribunal 150 (1) Mediation at the Equality Tribunal: An Overview 150 (2) Flexibility of Agreements Reached at Mediation 152 (3) Conclusion 154 E Labour Court 154 (1) Main Functions of the Labour Court 154 F Employment Appeals Tribunal 157 xi G Other Developments in Ireland 160 (1) Partnership 160 (2) National Employment Rights Authority 161 H Conclusion 161 CHAPTER 5 FAMILY DISPUTES & ADR 163 A Introduction 163 B Information Meetings 163 (1) The Commission Report on Family Courts 1996 163 (2) 2007 Courts Service Report on Family Law Reporting Pilot Project 165 (3) Models in Other Jurisdictions 165 C Parenting Plans 167 D Counselling 172 (1) New Zealand 172 E Mediation 174 (1) Family Mediation: An Overview 174 (2) Legislative Development of Family Mediation in Ireland 177 (3) Family Mediation Service 178 (4) Issues in Family
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