The Law Reform Commission's Report on ADR
The Law Reform Commission's Report on consolidation and reform of the Courts Acts, Alternative Dispute Resolution: Mediation and Conciliation was formally launched on Tuesday 16 November 2010 by the Hon. Mr Justice John L Murray, Chief Justice.
Main recommendations
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).
