Mediation has been given an ever-increasing role under the Court rules. In England and Wales 1999 Law Reforms consequent on the Woolf report places an obligation on parties to consider mediation. Parties can be penalized in terms of costs if they refuse to engage in appropriate ADR. See the England and Wales litigation section of our website.
Mediation is encouraged in a family law context. Over the last decade mediation and alternative dispute resolution has been formally incorporated into the Court rules. Provisions for the consideration mediation have been incorporated into the Court rules.
The Commercial Court rules provide that the Court has power to adjourn the proceedings for up to 28 days at any stage it considers appropriate to consider whether the issue ought to be referred to mediation, conciliation or arbitration. It is part of the general policy that parties should be encouraged to settle dispute privately without resort to litigation. Mediation ultimately must be voluntary.
The Court can exert a certain amount of pressure on the parties to give consideration to mediation. The Court may take the initiative in the course at any stage particularly in the course of direction hearings. There is no obligation on parties to mediate. A European Union directive has been passed to encourage the use of mediation in commercial and legal matters.
The EU Directive was require to be implemented by May 2011. It applies only to cross-border disputes. The principles may be applied to internal disputes. Voluntary codes of conduct are encouraged for mediators. States must provide for enforcement of written agreement arising from mediation provided parties agree to it. The Directive requires that mediators will not be compelled to give evidence in proceedings or arbitration except for very limited circumstances.
Early neutral evaluation involves assessment and evaluation of the facts, merits and law applicable to a dispute. It may be undertaken by the parties jointly or by one party. A party will appoint a neutral third party to evaluate the position and provide an opinion on the merits of the dispute, without becoming involved in the negotiations.
In contrast to mediation, evaluation is an advisory or evaluative process and is not, as such, a process for facilitating settlement between the parties. It differs in this respect from evaluative mediation and from facilitative evaluation. Neutral evaluation is private and confidential.
Neutral evaluation should take place at an early stage and is commonly referred to as early neutral evaluation. The purpose is to give an unbiased evaluation of the dispute and its likely outcome. It may assist settlement by some other means of ADR or otherwise.
Neutal evaluation is given by a third party neutral entity. The evaluator should be an expert in the relevant area. It is, most commonly a barrister or solicitor. It may be a third party expert in another field, which is appropriate to the dispute.
The procedure for neutral evaluation is flexible and can be tailored to the circumstances. The parties can control the information to be placed before the evaluator. The evaluator should fix the procedure in consultation with the parties. Ideally, he should be jointly instructed by the parties and they should agree on the terms on which he is to carry out the evaluation.
Each party may make submissions together with evidence and supporting documents, as they see fit. The evaluator may choose to have private meetings or may have meetings with both parties present, who may make submissions. The parties may agree to present the case at an oral hearing.
The evaluator should evaluate the evidence based on the facts as they appear and the law, saying out his recommendations and decision. The evaluator carries out his evaluation independently. He may or may not give detailed reasons for the decision.
The commercial court in England and Wales, may with the agreement of the parties in an appropriate case, provide early neutral evaluation of issues in in dispute. The approval of the judge in charge of the Commercial List must be obtained. A judge is nominated to undertake the evaluation just based on the summary of information submitted.
Evaluate mediation role involves the mediator in evaluating the merits of the dispute and give a neutral evaluation. He should do so only with the consent of the parties. The evaluation may take place in an exploratory or bargaining phase during a private meeting. The evaluation provided to each should be matching and identical.
The mediator may recommend that third-party, such as an expert to carry out a neutral evaluation in order to determine particular issues.
Mediation Arbitration Hybrids
Med-Arb, is a hybrid process which commence by mediation, with an agreement or understanding that the matter may be referred to arbitration by the mediator, that may be binding or non-binding as agreed. An objection is that the mediator may have confidential information. This could prejudice the flow of the mediation in the first stage.
The arrangement need not necessarily be defined in this way from the outset. The parties to the mediation may decide that the entire of the dispute be referred to the mediator or more commonly, that certain aspects of the matter be determined by the mediator as arbitrator. A further arbitration agreement may be appropriate at a later point.
Under Arb-Med, a simplified arbitration takes place at the outset followed by mediation. The arbitrator makes an arbitration award which is sealed and not revealed, unless the parties are unable to settle. If there is an ultimate settlement, the sealed arbitration award is not opened or acted on.
General Courts Mediation Powers
Mediation has been commonly used in family legislation cases for some time. It is a requirement in some important family proceedings, including in particular judicial separation and divorce, that the parties’ legal advisers certify that they had been advised in relation to mediation.
The Courts have been conferred with general powers to invite parties to consider ADR and adjourn the case to facilitate ADR. In this context, ADR means mediation, conciliation or other dispute resolution other than arbitration.
On an application of either party or of its own motion may adjourn the proceedings at any time it considers just and convenient. The Court may extend the time to undertake steps in the litigation to facilitate the ADR. The Application must be made not later than 28 days before the case is first listed for hearing.
The Courts may consider the willingness of parties to refer to ADR in the context awarding costs. Certain types of cases are more amenable in determining costs. Some types of cases where the case is open and shut to costs it would have to be shown that there is an unreasonable refusal to mediate and that mediation would be inappropriate and had a reasonable prospect of success.
The mediation directive applies to cross-border disputes. It provides generally that the Courts may invite parties to attend an information session on the use of information. Parties are allowed to encompass agreements made pursuant to mediation as a Court Order. Mediation must be confidential. Provisions must be made to ensure the limitation periods are extended.
Mediation and Case Management
The District Court, Circuit Court and High Court case management and case progression rules have been progressively expanded in scope.
The Judge or County Registrar as the case may be deals with case progression. The Judge or County Registration may on the application of either party or of its own accord at any time during the proceedings invite the parties to use mediation, conciliation arbitration or other dispute resolution.
The Judge or County Registrar may give directions to facilitate the mediation or ADR. They may list the proceedings for a report on the progress of the ADR case. Either party may apply to have the order discharged. Either party may request the Judge who is hearing the matter to invite the parties to attend mediation.
The small claims procedure seeks to resolve small disputes between consumers and businesses on an economic basis. In the first instance, the process contemplates mediation through the District Court Clerk who is deemed the small claims registrar. The matter can proceed to a determination.
Statutory ADR; The Workplace Relation Commission
The Workplace Relation legislation provides for dispute resolution by way of conciliation, mediation or adjudication as the principal means of dispute resolution. Conciliation is a voluntary process in which a professional conciliation officer
facilitates employers and employees and/or their representatives to resolve workplace issues when their own efforts have not succeeded. The conciliation officer acts as an impartial facilitator in discussions between the parties.
The WRC Mediation Service is staffed by experienced and qualified Mediators. Where a complaint is referred to the WRC under Employment Rights legislation the WRC adopts two approaches in the delivery of mediation:
- Telephone based mediation This is used when the complaint is relatively straightforward. The mediator will communicate by telephone with the complainant and respondent and work with the parties in finding an acceptable solution. Telephone based mediation is very effective and significantly reduces the cost of resolving the complaint for both parties.
- Face to face mediation. Where the complaint is more complex the mediator will meet directly with the complainant and respondent in an effort to find a resolution. T
Adjudication Officers of the Workplace Relations Commission (WRC) are statutorily independent in their decision making duties as they relate to adjudicating on complaints referred to them by the WRC Director General. The Adjudication Officer’s role is to hold a hearing where both parties are given an opportunity to be heard by the djudication Officer and to present any evidence relevant to the complaint.
Hearings of the Workplace Relations Commission are held in private. However, complaints may, in certain instances, be disposed of by means of a written procedure (i.e. without hearing). The Adjudication Officer will not attempt to mediate or conciliate the case. Parties are free to represent themselves or choose their own representation. The Adjudication Officer decides the matter and give a written decision in relation to the complaint. T
Other Statutory Adjudication II
Similar procedures to those of the WRC are used by the Residential Tenancies Board. Mediation is offered. Adjudication is a the default procedure used by the RTB to resolve disputes between landlord and tenant in the private residential sector. The adjudicator decides how the matter is dealt with. The hearing is in private. If the adjudication is not appealed it will become a binding order for the PTB.
The Financial Services and Pensions Ombudsman deals with complaints in a similar way. The provider must have an internal dispute resolution mechanism which should be exhausted. Mediation is offered. In default, it may adjudicate and investigate alternatively.
If mediation does not work or is not likely to proceed it may proceed to resolve the matter by investigation or adjudication. The Ombudsman may abandon mediation if it is not likely to be successful.
Public Sector Ombudsman
There are numerous other ombudsmen in the public and quasi public sector. They include Garda Siochana Ombudsman, Press Ombudsman, Legal Services Ombudsman, European Ombudsman. The legislation permits mediation or informal resolution with consent. The general principle is that if the matter can be resolved by mediation it does not proceed to formal adjudication by the Ombudsman.
The general public sector Ombudsman (see our section on government) investigates complaints. The Ombudsman attempts to resolve the complaint informally before undertaking a formal investigation.
The Press Ombudsman hears complaints in relation to the Press Council code of conduct and practice. The Ombudsman provides the public with an informal means of resolving complaints about newspapers in respect of breach of the code.
The Ombudsman attempts to resolve matters directly with the parties concerned. It will seek to resolve the matter by conciliation at first. If this is not done it will make a determination.
The Legal Services Ombudsman deals with appeals from complaints to the Law Society and Bar Council. The Ombudsman investigates complaints about the handling by the latter bodies of the complaints in relation to barrister and solicitors.
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