LAW REFORM COMMISSION:THE KEY principles of conciliation and mediation should be laid out in legislation and mediators should be properly trained and accredited, according to the Law Reform Commission.
These are among the provisional recommendations in its 356-page Consultation Paper on Alternative Dispute Resolution, (ADR) which will be launched today by Mr Justice Peter Kelly.
The consultation paper contains 36 provisional recommendations, and invites submissions in 14 other areas.
Following the receipt of submissions and discussions with interested parties, the commission will issue its final report, which normally contains draft legislation and other concrete proposals. The consultation paper forms part of its current programme on law reform, which has been approved by the Government.
The commission points out that alternative dispute resolution facilitates early settlement of disputes, which can be both financially and emotionally helpful to those involved. It may mean that an important relationship can be repaired and maintained, which would otherwise be damaged by litigation.
While every citizen has a right of access to the courts, and litigation must always remain available for clients, this should be seen as the final place for resolving a dispute, it states.
The commission examined the use of ADR in various types of civil disputes, both in Ireland and internationally. It points out that it is already in extensive use in employment, with various mechanisms like the Labour Relations Commission, the Equality Tribunal and the Labour Court, and that ADR is also practised by offices like the Ombudsman, the Pensions Ombudsman, the Financial Services Ombudsman and the Consumer Agency.
In the courts, the judge in the Commercial List in the High Court may suggest that the parties consider the option of mediating their dispute, and cases are often adjourned to permit this.
However, there are other areas where alternative dispute resolution is undeveloped, and the commission makes a number of recommendations that would allow it to be extended, particularly to the areas of family disputes, both between partners and on probate issues; boundary disputes between neighbours; other property disputes, including planning; commercial and company law disputes; and medical negligence claims.
The consultation paper distinguishes between mediation, where a neutral and impartial third party facilitates an agreement between the parties, and conciliation, where the third party also acts in an advisory role in helping the parties towards agreement.
It also outlines the recent development of collaborative law in Ireland, and invites submission on whether there should be a code of practice for collaborative lawyers.
Mediated or conciliated agreements should be placed on a firm legal footing, and a court should be able to enforce them, it says. This should be combined with a system for the training and accreditation of mediators, so that both the public and the courts can have confidence in the quality of the mediation or conciliation process.
The European Commission has recently issued a directive on mediation, which deals with the mediation of disputes across state frontiers and includes a code of conduct. It must be implemented in Ireland by 2011.
The commission invites submissions on whether this directive should be applied to disputes that do not involve a cross-border element.
In relation to family law, the commission points out that 12 years ago it made a number of recommendations relating to the provision of information on alternatives to litigation, the implications of separation, court processes and support services, none of which were ever implemented.
It reiterates these recommendations, and states that, where possible, mediation and other ADR processes should form part of an overall suite of processes that aim to resolve what are complex human and legal problems. It acknowledges that mediation is not suitable for all cases.
It points out that medical negligence cases have been criticised as "complex, costly and gruelling for all concerned", yet the number has risen sharply in recent years.
"Society places a great value on apologies as a way of addressing wrongs", it states, and recommends that a statutory provision be considered whereby medical practitioners could make an apology and offer an explanation as to what occurred without these being construed as admissions of liability.
In relation to costs, the commission points out that there are great savings to be made through mediation, especially in commercial matters, but that, if mediation fails and the matter goes to litigation, the costs can be greater.
It does not recommend, at this stage, that parties be penalised by costs orders for refusing to consider mediation.