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Alternative Dispute Resolution: Mediation

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REPORT 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 AND CONCILIATION MEDIATION DISPUTE RESOLUTION: ALTERNATIVE review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. This role is carried out primarily under a Programme of REPORT Law Reform. The Commission’s Third Programme of Law Reform 2008-2014 was prepared and approved under the 1975 Act following broad consultation and discussion. The ALTERNATIVE DISPUTE Commission also works on specific matters referred to it by the Attorney General under the 1975 Act. Since 2006, RESOLUTION: the Commission’s role also includes two other areas of activity, Statute Law Restatement and the Legislation Directory. Statute Law Restatement involves incorporating MEDIATION AND all amendments to an Act into a single text, making legislation more accessible. The Legislation Directory (previously called the Chronological Tables of the Statutes) CONCILIATION is a searchable guide to legislative changes. LRC 98-2010 ADDRESS TELEPHONE FAX EMAIL WEBSITE (LRC 98-2010) 35-39 Shelbourne Road Dublin 4 Ireland +353 1 6377600 +353 1 6377601 [email protected] www.lawreform.ie The Law Reform Commission is a statutory body established by the Law Reform Commission Act 1975 113681 - LRC alternative dispute 1 09/11/2010 14:29 www.lawreform.ie 113681 - LRC alternative dispute 2 09/11/2010 14:29 REPORT ALTERNATIVE DISPUTE RESOLUTION: MEDIATION AND CONCILIATION (LRC 98-2010) © COPYRIGHT Law Reform Commission FIRST PUBLISHED November 2010 ISSN 1393-3132 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. ii 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 iii LAW REFORM RESEARCH STAFF Director of Research: Raymond Byrne BCL, LLM (NUI), Barrister-at-Law Legal Researchers: Dannie Hanna BCL (NUI), LLM (Cantab) Helen Kehoe BCL (Law with French Law) (NUI), LLM (Dub), Solicitor Donna Lyons LLB (Dub), LLM (NYU) Tara Murphy BCL (Law with French Law) (NUI), LLM (Essex), Barrister-at-Law Jane O‗Grady BCL, LLB (NUI), LPC (College of Law) Darelle O‗Keeffe LLB (UL), H Dip Soc Pol (NUI), EMA (EIUC) Helen Whately LLB, LLM (Dub) STATUTE LAW RESTATEMENT Project Manager for Restatement: Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor Legal Researcher: Andrew Glynn BBLS (NUI), LLM (Dub) LEGISLATION DIRECTORY Project Manager for Legislation Directory: Heather Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law Legal Researcher: Aoife Clarke BA (Int.), LLB, LLM (NUI) iv 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) v 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: [email protected] Website: www.lawreform.ie vi ACKNOWLEDGEMENTS The Commission would like to thank the following people who provided valuable assistance: Mr Fergus Armstrong, Director, One Resolve Mr William Aylmer, Partner, Compton Aylmer Solicitors Mr Joe Behan, Chartered Institute of Arbitrators Irish Branch Mr Ciaran Breen, Director, State Claims Agency Mr James Bridgeman, Senior Counsel Dr Nael Bunni, Chartered Engineer, Bunni & Associates Ms Bernadette Casey, Mediator Ms Maureen Chalmers, Senior Social Worker, WISE Mr Oliver Connolly, FriaryLaw ADR Mr Michael Culloty, National Social Policy & Communications Officer, MABS Ms Susan Dowling, Dispute Resolution Adviser, ECC Dublin Mr Liam Duffy, Dublin Hospitals Group Risk Management Forum Ms Karen Erwin, President, Mediators Institute of Ireland Mr Ciaran Fahy, Chartered Institute of Arbitrators Mr Ronan Feehily, Solicitor Ms Nicola Flannery, Solicitor Mr Jay Folberg, Executive Director, JAMS Foundation (US-based ADR organisation) Mr Michael Gorman, FriaryLaw ADR Ms Wendy Gray, Department of Enterprise Trade & Employment Mr Eamon Harrington, Solicitor, Comyn Kelleher Solicitors Ms Tricia Hayes, Mediator Mr David Hickey, Coordinator, Cork Community Mediation Service Ms Maria Hurley, Director of Policy, Advocacy & Communications, National Consumer Agency Ms Phyl Kealy, Solicitor Mr Joseph Kelly, Partner, A & L Goodbody Solicitors & former Chairman of the Law Society Committee on Arbitration & Mediation Mr David Lawless, Solicitor Mr Kevin Liston, Solicitor Mr Ed Madden, National University of Ireland Maynooth Mr Patrick Maguire, Chartered Accountant, Maguire & Co Mr Sheila Maguire, Solicitor, Daniel O‘Connell & Son Ms Patricia Mallon, Partner, Eoin Daly Solicitors Ms Paulyn Marrinan Quinn, Senior Counsel and Ombudsman for the Defence Forces Mr Johnnie McCoy, Barrister-at-Law Mr Donagh McGowan, Solicitor, Mason, Hayes & Curran Solicitors Mr Robert O’Donnell, Director, Woodstock Institute for Negotiation Mr Turlough O’Donnell, Senior Counsel Ms Polly Phillimore, Family Mediation Service Ms Melanie Pine, Director, The Equality Tribunal Mr Noel Rubotham, Director of Reform & Development, Courts Service Ms Delma Sweeney, National University of Ireland Maynooth Mr Gordon Wade, FriaryLaw ADR Hon Daniel Weinstein, JAMS Mr Michael Williams, Solicitor Full responsibility for this publication lies, however, with the Commission. vii TABLE OF CONTENTS INTRODUCTION 1 A Background to the Report 1 B The Commission‘s approach to alternative dispute resolution, in particular mediation and conciliation 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 1 (3) The court process and ADR 2 (4) Efficiency, including cost efficiency 2 (5) Other benefits of ADR, including flexibility 3 (6) An integrated approach to dispute resolution 3 (7) The main focus of the Report 4 C Outline of Report Chapters 4 CHAPTER 1 ADR: AN OVERVIEW 7 A Introduction 7 B Access to Justice and ADR 7 C Appropriateness of ADR 9 D Conclusion 11 CHAPTER 2 ADR: TERMINOLOGY & SCOPE 13 A Introduction 13 B Definition and scope of the term ‗ADR‘ 13 (1) ADR: Dispute Resolution and Prevention 13 (2) General Scope of ADR 15 C Distinguishing between mediation and conciliation 17 (1) Role of the Third Party 17 (2) Rights Based v Interest Based Resolutions 18 (3) Conclusion 18 D Statutory Definition of Mediation 19 (1) Structured Formal Process 20 (2) Differing Models of Mediation 20 (3) Conclusion 22 E Statutory Definition of Conciliation 22 F General Scope of Statutory Mediation & Conciliation 24 (1) Civil & Commercial Disputes 24 (2) Cross-Border Civil & Commercial Disputes 26 G Conclusion 27 CHAPTER 3 GENERAL PRINCIPLES OF MEDIATION & CONCILIATION 29 A Introduction 29 B Consultation Paper 29 C Voluntary Nature of Mediation & Conciliation 30 (1) Consultation Paper 30 (2) Right to Withdraw from Mediation or Conciliation 30 (3) Conclusion 32 D Confidentiality 32 (1) Consultation Paper 32 (2) Increase of Satellite Litigation 33 ix (3) Confidentiality in the 2008 EC Directive on Mediation 37 (4) Distinct Form of Privilege for Mediation & Conciliation 38 (5) Mediation and Conciliation Communications 40 (6) Holders of the Privilege 41 (7) Waiver of the Privilege 42 (8) Exceptions to
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