Promoting alternative dispute resolution methods

David Quinn

David Quinn, Beauchamps Solicitors, outlines the workings of alternative dispute resolution processes which aim to lessen the number of cases brought before the High Court.

There is growing recognition that some disputes would be better resolved by agreement rather than Court decision. The emergence of alternative dispute resolution (ADR) processes has also been associated with problems of delays in the Court system.

The Law Reform Commission in its 2008 consultation paper on ADR accepts that any long delays in the Court process involve clear barriers to justice: justice delayed is justice denied.

New Court rules to promote mediation and conciliation or other forms of ADR in proceedings in the Superior Courts came into force on 16 November, 2010.

‘ADR’ is the term generally used to describe all dispute resolution methods other than Court proceedings and possibly arbitration (where an arbitrator is appointed by the parties to make a binding decision from which there are limited grounds of appeal).
These include methods such as mediation, conciliation, collaborative practice (in the family law area) expert determination and adjudication.

Mediation vs conciliation
Mediation is a voluntary, non-binding without prejudice method of resolving disputes and is the most widely used form of ADR. It involves a process in which an impartial and independent third-party facilitates communication and negotiation and promotes voluntary decision making by the parties to a dispute to help them to reach a mutually acceptable solution.

Conciliation is the process which is used by the Labour Relations Commission to settle industrial disputes. It is similar to mediation but the neutral third party takes a more interventionist role in bringing the two parties together.

Advantages of mediation and conciliation are the ability to get speedy access to a process that may produce a satisfactory outcome for the parties in a short period of time, flexibility and cost savings, if successful.

The new rules
The Rules of the Superior Courts (Mediation and Conciliation) 2010 (the Rules) provide for a mechanism similar to the type currently used in the Commercial Court where a judge can order the parties to engage in ADR.

The Circuit Court Rules (Case Progression (General) 2009 which came into force on 1 January, 2010 already allow a Circuit Court judge or county registrar at a case progression hearing to adjourn certain civil proceedings for up to 28 days to allow the parties to use mediation, conciliation and arbitration, or any other form of dispute resolution to settle or determine the proceedings.

An ADR process is defined in the Rules as “mediation, conciliation or another dispute resolution process approved by the Court, but does not include arbitration”. Therefore, a High Court judge may now adjourn legal proceedings to allow the parties engage in an ADR process.

The Rules apply to all High Court cases including medical negligence cases. There is a view that ADR may become mandatory in the future, depending on how judges embrace the new provisions.

The Rules also state that the refusal or failure without good reason of a party to participate in ADR in High Court cases may be taken into account by the Court when awarding costs.

This measure aims to minimise the cost of the proceedings and to ensure that the time and other resources of the court are employed optimally.

The Rules also complement the new Arbitration Act 2010, which facilitates recourse to arbitration in disputes already the subject of litigation.

• David Quinn,

Solicitor,
Beauchamps Solicitors.
Email:
d.quinn@beauchamps.ie