Law & Dispute Resolution Dr Brenda Daly (C228; extn 8154)

Alternative Methods of Resolving Disputes Outline the development & philosophy behind ADR. Define ADR. Explain and examine the existing types of alternative dispute resolution. Litigation; negotiation; conciliation; mediation; expert determination; arbitration.

Development & Philosophy of ADR Litigation itself started out as an ADR mechanism to ‘might is right’. Litigation was an alternative, non-violent means of settling a dispute. Philosophy behind ADR is that it is not adversarial. ADR will achieve a settlement that is in the interests of the parties concerned. Focus of ADR is on what the parties want & encouraging communication between them.

Types of ADR Litigation. Negotiation. Conciliation. Mediation. Expert determination. Arbitration.

Litigation Traditional approach to resolving disputes. Dispute referred to court; court’s determination is binding. Constitutional right of access to courts. Subject to limitations – time period; procedure. Summons – summary; special; plenary. Appearance. Statement of claim; further and better particulars; counterclaim; discovery; interrogatories. Date of trial; the trial. Appeal. Enforcement of judgement. District and Circuit Court pleadings.

Negotiation Parties attempt to settle dispute themselves. Settlement at the ‘court door’ – 80%-90%. Consensual process. “If any dispute arises out of this agreement the parties will attempt to settle it by negotiation. A party may not commence any dispute resolution, court proceedings or arbitration until 14 days after it has made a written offer to the other parties to negotiate a settlement to the dispute.” Such clauses are enforceable. Court can issue a stay of legal proceedings. Failure to honour a settlement will constitute contempt of court.

Law’s Support for Negotiation Court will prevent discovery of documents relating to negotiations – privilege. Privilege will arise where a party states that communication is ‘without prejudice’. This privilege will be lost if a party fails to abide by the terms of the settlement & communications are necessary to prove existence of the settlement.

Conciliation If any dispute arises out of this agreement, the parties will attempt to settle it by conciliation. No party may commence any court proceedings/arbitration in relation to any dispute arising out of this agreement until they have attempted to settle it by conciliation and that conciliation has been terminated.

Features of Conciliation Conciliator facilitates the parties in coming to an agreement; cannot impose a settlement. Parties will define the role & powers of the conciliator. Same privilege as negotiation. In Ireland conciliation is used to resolve industrial relations disputes – Labour Relations Commission provide this service.

Mediation ‘…a process whereby disputes can be resolved quickly and simply, and at a fraction of the cost of litigation or arbitration. It is a process that aims to put the responsibility of the outcome in the hands of the parties involved.’ (Gianquinto, 1998, p.272) Mediator is an independent, impartial third party. Mediator’s role is to facilitate communication between the two parties with the aim of trying to reach an agreement acceptable to both. A settlement cannot be imposed upon the parties.

Features of Mediation Consensual. Voluntary. Decision-making as to how the mediation is to be conducted is in the hands of the participants. Cheaper than litigation. ‘Mutually acceptable’ agreement. Useful in situations where a continuing relationship needs to be maintained.

Law’s Support for Mediation Privilege. Confidentiality – compulsory clause? Confidentiality – court could strike out any information disclosed in mediation that is used in subsequent legal proceedings The law advocates use of mediation in Small Claims Procedures, some areas of family law e.g. judicial separation, divorce & custody. Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters – came into force on 13 th June 2008

EU Directive on Mediation A Directive on certain aspects of mediation in civil and commercial matters was adopted on 23 April The purpose of the Directive is to facilitate access to cross-border dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a sound relationship between mediation and judicial proceedings. The Directive is one of the follow-up actions to the Green Paper on alternative dispute resolution presented by the Commission in 2002, the other being the European Code of Conduct for Mediators established by a group of stakeholders with the assistance of the Commission and launched in July 2004.

EU Directive on Mediation Purpose of the Directive is to provide a standard EU framework to deal with issues which have hampered cross- border mediation in the past. Restricted to dealing with civil and commercial matters. Does not deal with tax, custom or administrative law disputes.

EU Directive on Mediation Article 3 defines mediation as “a structured process…whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator.”

Expert Determination A third party, an expert, will determine a dispute between the parties. Different from conciliation & mediation as the expert can issue a binding determination – no need for voluntariness/ consent. Also the person who issues the determination will have experience and expertise in the disputed area. Conducts independent investigation & bases his/her decision on the findings of this. If any dispute arises out of this agreement the parties will refer the dispute to a person who shall act as an expert and not as an arbitrator and his decision shall be final and binding on the parties.

Arbitration Involves a third party who is both independent and impartial being appointed to hear the arguments of both parties and on hearing these to issue a binding decision which resolves the dispute. Clause usually contained in contract which means that the parties must go to arbitration before going to court. Sutcliffe v Thackrah (1974) – 4 characteristics of arbitration. Arbitration is also consensual.

Advantages of Arbitration Quicker. Flexible. Private. Gives parties freedom of choice. Confidentiality. Speed. More informal process than litigation. Finality of award as there are limited grounds for appeal. Arbitrator may have specialist knowledge.

Disadvantages of Arbitration May prove to be more expensive. May not be quicker. May not work if not conducted properly. Excessive rigidity of procedure. Arbitrator may not have relevant experience which can hinder the process. Precedent not used in arbitration – could lead to inconsistencies & uncertainty.

Features of Arbitration Any dispute or difference of any kind whatsoever which arises or occurs between any of the parties hereto in relation to any thing or matter arising under, out of or in connection with this contract shall be referred to arbitration under the Arbitration Rules of the Chartered Institute of Arbitrators. Parties can determine the disputes to be sent to arbitrator; the arbitrator; rules & procedures of arbitration procedure; costs; nature of remedy; law, language & jurisdiction for the arbitration.

Sources of Arbitration Law Arbitration Acts, 1954, 1980, 1998, 2010 Order 56 of the Rules of the Superior Courts – enforcement, set aside, remit. Order 62 of the Rules of the Superior Courts – case stated by the Arbitrator. UNCITRAL Model Law on International Commercial Arbitration adopted by the Arbitration (International Commercial) Act, 1998.

Law’s Support for Arbitration Arbitration Acts 1954, 1980,1998, Stay of legal proceedings. Court may appoint arbitrator in certain cases. Court may provide assistance to arbitrator. Limited ability to challenge arbitrator’s awards. Court may assist in enforcing award if it has been made and a party fails to abide by it.

Keenan v Shield Insurance Ltd [1988] I.R. 89 Mr Justice Niall McCarthy: “Arbitration is a significant feature of modern commercial life… It ill becomes the courts to show any readiness to interfere in such a process; if policy considerations are appropriate, as I believe they are in a matter of this kind, then every such consideration points to the desirability of making an arbitration award final in every sense of the term.”

Attitudes of Superior Courts to Arbitration Supreme Court Judge Frank Murphy: “The Courts should be slow to usurp the functions of the chosen tribunal by intervening whether by way of setting aside an award, remitting an award or directing a case to be stated.”