Tuesday 16th November 2010:
The Law Reform Commission’s Report on Alternative Dispute Resolution: Mediation and Conciliation was launched by the Chief Justice, Mr Justice John Murray.
The full report is downloadable here
The growing use of ADR, in particular mediation and conciliation
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.
Speedy resolution and the cost of mediation and conciliation
The Report notes that, while ADR processes can often provide a speedy resolution to a specific dispute, there is – to put it simply – no such thing as a free ADR process. Where mediation or conciliation is provided through, for example, the Family Mediation Service, most or all of the cost is carried by the State.
Where the ADR process involves private mediation or conciliation, the cost is usually shared equally by the parties. The Report notes that additional cost will be involved if a case goes through an unsuccessful mediation and then also requires litigation. On the other hand, this has to be balanced against the possible savings where cases are successfully mediated.
The Report refers to a 2001 Report by the Department of Justice in the US state of Oregon, which estimated that, in a typical case, the cost of mediation was 85% lower compared to the cost of a full hearing in court or other adjudicated procedure. The Commission emphasises that if mediation or conciliation are used in appropriate cases some cost savings could be generated.
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.
- Where parties include a mediation or conciliation clause in a contract, the courts could stop (“stay”) court proceedings, as happened in a 2009 High Court case (Health Service Executive v Keogh).
- 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.
- Parties should, in general, share the cost of mediation or conciliation equally.
- There should be a statutory Code of Practice for Mediators and Conciliators, which would set out detailed requirements, based on accepted international standards, for all mediators and conciliators, including training requirements.
- 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).