Law Reform Commission of Ireland Report on Alternative Dispute Resolution
From the press release:
"The Report notes that mediation and conciliation are increasingly being used to try to reach mutually acceptable settlements of civil and commercial cases. These include: big commercial and small consumer claims, employment disputes, family breakdown, medical claims and property disputes. In 2006, The Dubliners reached a mediated settlement with their record label EMI over royalty payments. Earlier this year, when U2’s bass guitarist Adam Clayton obtained a temporary High Court injunction against his former personal assistant, it was stated that her employment contract had a mediation clause, which could allow her to postpone or stop ('stay') any court proceedings ... The Commission’s Report also notes that not all meditations or conciliations end with a settlement. A 2008 High Court dispute in the Commercial Court between pharmacists and the HSE was not resolved by mediation and had to go to a court decision (...) "
"Among the main recommendations in the Report are:
- Legislation along the lines of the Commission’s draft Mediation and Conciliation Bill should be enacted that defines clearly what is meant by mediation and conciliation, including the differences between them (the Bill states that a mediator may assist the parties to reach an agreement, while a conciliator may also make a proposal to the parties to resolve the dispute).
- The key principles of mediation and conciliation should be set out, including: they are voluntary processes; the parties control them; confidentiality of the processes is required; and their quality must be assured by clearly stated standards.
- Mediation and conciliation can be initiated either: (a) independently of court proceedings or (b) where a court suggests them after court proceedings have begun...
- The Government should make an 'ADR pledge,' under which Government Departments and State bodies would be required to consider and attempt mediation or conciliation in appropriate cases before initiating court proceedings ...
- In family law disputes, parents and guardians could agree a 'parenting plan' which would set out the details of day-to-day care and contact arrangements with their children, based on the children’s best interests.
- In a dispute arising after medical care, health care professionals (such as doctors, dentists and nurses) should be able to make an apology without this being an admission of legal liability.
- Other emerging areas of ADR should also be dealt with in the statutory Code of Practice. This would include collaborative practice, where professional advisers actively assist and advise the parties/clients to reach, on a voluntary basis, a mutually acceptable agreement to resolve their dispute (including in a family law dispute). "