November 16, 2010
CAROL COULTER Legal Affairs Editor
The use of alternative dispute resolution, as an alternative to litigation in the courts, must be actively promoted by the State so that both professionals and the public generally are informed as to its effectiveness, according to the Chief Justice.
Mr Justice John Murray was speaking at the launch of two reports of the Law Reform Commission tonight, one on alternative dispute resolution, mediation and conciliation in particular, and the other proposing a single new Bill to regulate the conduct of court proceedings.
He said that in parallel with promoting ADR the State should take the necessary measures for the establishment of an official register of approved mediators, as many other states have done.
The report follows a Consultation Paper over a year ago and an intensive period of consultation leading to the publication of the final report, which includes a Draft Mediation and Conciliation Bill.
The commission does not regard ADR as a panacea, and points out that not all mediations or conciliations (the difference is based on whether the third party facilitator makes proposals or not) end in a settlement. Where they do not, costs may actually increase as the parties bear the cost of both mediation and litigation.
However, it also points to research which showed that mediation could, in some instances, reduce legal costs by up to 85 per cent.
It also points out that not all cases are suitable for mediation, and those which are not include where illegality is alleged, where a significant point of law is involved or where a large number of people could be affected.
The main recommendation in the report is that the Government enact a Mediation and Conciliation Bill, a draft of which is appended to the report.
This would contain clear definitions of what is meant by the terms mediation and conciliation, and set out the key principles of both: they are voluntary; the parties control the process; the confidentiality of the process is preserved and the quality must be assured by the regulation of those offering mediation and conciliation services.
This is to be achieved by self-regulation by their professional bodies, along with a statutory Code of Practice, based on accepted international standards and training requirements.
Mediation and conciliation can either be initiated by the parties or suggested by a court after proceedings have begun, when the proceedings will be adjourned to permit it. In the case of family law, the report recommends that no family law proceedings can begin until the parties have attended an information session on mediation, though it acknowledges that people cannot be compelled to engage in mediation. In medical negligence cases, an apology as part of a mediated settlement should not be taken as an acknowledgement of liability.
Mediated settlements should be made binding by being ruled by the court. The parties should, in general, bear the cost of mediation, it states.
The report also recommends that Government departments and State bodies make an “ADR pledge”, under which they would be required to attempt mediation or conciliation in appropriate cases before initiating court proceedings.
In another report the Law Reform Commission recommends the enactment of a new Courts Bill to replace 240 separate pieces of legislation dealing with the courts and mechanics of the administration of justice, many of which date back to the 19th century. This Bill includes provisions for integrating alternative dispute resolution processes into legal proceedings.
It urges consistency in the language used in the drafting of Rules of Court, and recommends the use of plain language. Differences among the procedures and terms used in different courts should be avoided.
The proposals also include the increase of the jurisdiction of the different courts in civil matters, so that the District Court can deal with matters worth €7,500 and the Circuit Court with matters up to €100,000, apart from personal injuries, which will be limited to €50,000.
They include provision for much more judicial control of civil proceedings through case management, so that the issues between the parties are identified at an early stage and prioritised or sequenced.
If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 087-2268394 to discuss your requirements or organize a mediation.
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Mediation Advocacy Training
Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.
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