The Law Reform Commission’s Mediation and Conciliation Bill is the model for the Draft General Scheme on Mediation Bill and we need this to be made law as a concrete legislative framework needs to be put in place for mediation in Ireland. Domestic law needs to keep up with new incoming EU mediation law and a clearer definition of mediation will promote the public awareness of this form of alternative dispute resolution.

 In 2008 the Law Reform Commission (LRC) published the Consultation Paper on Alternative Dispute Resolution (ADR). This was then followed by the LRC Report on ADR and a Draft Bill on Mediation and Conciliation in 2010. These publications have proposed recommendations as to changes that should be made to accommodate for alternative dispute resolution in Ireland.

The LRC report deals with the integration of mediation and conciliation in litigation practice, providing protection for the parties and it gives a definition of mediation and conciliation to clear up ambiguity.

The LRC Draft Bill compromises a legislative framework for mediation and conciliation in Ireland and provides a definition of these two forms of ADR under section 4(1) of the LRC Draft Bill.

Mediation is defined as a ‘facilitative and confidential structured process in which the parties attempt by themselves, on a voluntary basis, to reach a mutually acceptable agreement to resolve their dispute with the assistance of an independent third party, called a mediator.’

 In section 4(2) conciliation is defined as actively assisting ‘the parties in their attempt to reach, on a voluntary basis, a mutually acceptable agreement to resolve their dispute.’

 It is argued by Aideen Scannell in her article[1] on the LRC Draft Bill that the definition of conciliation in the Bill does not define the role of the conciliator and that it does not highlight the advisory nature of conciliation. Although, she states that the Bill does make it clear that the conciliator is there to give recommendations and settlement proposals, which is important as conciliation is more concentrated on finding a solution for the legally right party.

In contrast the Draft General Scheme of Mediation Bill 2012 does not mention conciliation.

The Draft Mediation Bill 2012 as published by the Department of Justice is concerned only with mediation so it appears we will have to wait even further for domestic legislation on conciliation.

 The LRC Draft Bill[2] and the Draft General Scheme of Mediation Bill 2012[3] require a solicitor and barrister to provide information and advice on mediation to their clients. There is also a requirement in the Draft General Scheme Bill that the solicitor must advise the client on the estimated costs and time that the litigation or mediation will take[4].

This is extremely beneficial to the parties as it allows them to consider other methods of dispute resolution rather than litigation. It also ensures that solicitors and barristers must be well versed in mediation. Training can also be provided to the parties by the mediator on the process of mediation[5].

 The Draft General Scheme Bill is modelled on the LRC Draft Bill and we need this to be made law as it contains a code of practice for mediators under section 9[6]. At the moment the European Code of Conduct[7] for Mediators is not binding, it is an optional code that the Law Society in Ireland has adopted but commitment to it is voluntary for mediation organisations.

Sarah Conway in her article[8] poses the question of whether mediators should be bound by a statutory code of conduct and whether there should be a statutory regulation of mediators as this could ‘preserve the quality of the process.’[9]

 Enforceability is an important aspect of the Draft General Scheme Bill under section 11 as it is up to the parties to determine whether the agreement is to be enforceable between them.

The question has been raised as to whether mediation agreements should be made enforceable just like litigation or arbitration. Sarah Conway in her article says that;

 ‘voluntary enforcement of the agreement is likely in most instances since it was achieved by an accord between the two parties.[10]

 Further to this she argues that a legally enforceable agreement would be advantageous to the parties where the agreement involves an imposition of obligations on one or each of the parties. She refers to article 6 of the 2008 European Mediation Directive[11] where Member States are obliged, if both parties request, to ensure a mechanism where mediation agreements can be made enforceable.

 It has been debated whether the Irish courts should make mediation mandatory as was decided in Italy. Brian Hutchinson[12] describes mandatory mediation as a ‘mixed bag’. He says that the mediation process is most successful where the parties are willing.  

This gives the parties the ability to determine their own options for settlement.

Mr. Justice Peter Kelly supported this view at the recent Irish Commercial Mediation Association (ICMA) Conference[13]. He spoke of his strong views as a judge on mediation and how in 2004 he introduced ADR into the commercial court by way of rules of court having consulted with the commercial court judges in London, Scotland and Belfast.

Mr. Justice Kelly in his article on ADR[14] said that, ‘it is not possible to force people to go to mediation and if one does so, it is unlikely to be successful.’

He notes how his practice as a judge effects mediation. He writes that now he rarely makes an order under Rule 6(1) (xiii)[15] but simply suggests to the parties that they consider mediation. He is of the opinion that the success rates in these mediations tend to be higher than when a formal order is made.

 Order 56A of the Rules of the Superior Courts[16] is a powerful piece of legislation which allows the court to invite parties to take part in mediation, although, it is secondary legislation[17]. Section 12 of the Draft Bill 2012 is essentially the same rule but would be given more enforceability and power as would be a statutory provision and a primary piece of legislation.

The Draft Bill 2012 could incorporate all the mediation legislation in Ireland into one solid act therefore leaving us with a clear definition of mediation and knowledge of the exact protocol for a mediation process.

 The Oireachtas Joint Committee on Justice, Defence and Equality produced a report[18] on the Draft Bill 2012.

One of the main concerns of the committee was the ‘withdrawal of a mediator’[19] and the obligation on the mediator to give reasons for withdrawal. The committee holds that this could undermine the mediation process. It was also noted that no other jurisdiction has the obligation to give reasons.

The Bill is presently being redrafted by the parliamentary draftsman, taking into consideration the recommendations of the Oireachtas Joint Committee. 

 With regard to limitation periods and prescription periods the Bill ensures that while mediation is ongoing the statute of limitations will be halted under section 14.

Under section 15 the court can ‘stay’ proceedings to facilitate the mediation process. This allows the parties to enter in and out of litigation to consider a settlement through mediation. 

 The factors to be considered in awarding costs in mediation are determined by section 17 of the Draft Bill 2012. If a party unreasonably refuses mediation this will be taken into account when awarding costs. Even if the refusing party wins in litigation they could be landed with costs for both sides.

The case of Dunnet v Railtrack[20]  reflects the Woolf reforms in the UK. This case is the authority for the courts to penalise a party in costs for unreasonably refusing to mediate.

At present there is no Irish case on costs for mediation but in the ex tempore case of McCarthy v O’Sullivan[21] Murphy J, in a derivative action, gave leave to proceed an application in an Order 15, Rule 39 matter. Murphy J made it clear to the parties that there would be a costs sanction if they did not engage in mediation. This was a formal order pursuant to Order 56A.[22]

 The Irish courts are experiencing a huge backlog of cases and mediation has a huge part to play in reducing the number of cases passing through the courts[23].

It is widely known that Mr. Justice Kelly is in favour of mediation and he encourages parties to consider other forms of dispute resolution rather than litigation. In the case of Nesselside Builders Limited v Carlow County Council[24] Mr. Justice Kelly advised the parties to consider mediation as it could have been a very expensive civil action. The mediation was successful and the case was withdrawn from the Commercial List.

 European Mediation Legislation

 The EU Mediation Directive 2008[25] focuses on cross border mediation in civil and commercial matters. It is up to the Member State to legislate on mediation domestically.  Ireland transposed the Directive into national law by the use of the EC Mediation Regulations 2011.[26]

The directive is without prejudice and offers a broad sense of guidelines, which is appropriate considering the well established EU law principle of subsidiarity.

 ADR and ODR Proposals

 The proposed legislation by the EU for ADR[27] and the Online Dispute Resolution (ODR)[28] has recently[29] been accepted by the European Parliament. The legislation will soon be adopted by the end of 2015 at the latest. If Ireland is to fully comply with these new proposals we must have a regulatory system in place for ADR.

This legislation is aimed at domestic and cross border consumers purchasing online or off online. The ADR rules will ensure that consumers can be provided with quality alternative dispute resolution organisations to solve all kinds of contractual disputes.

The ADR proposal is to ensure a high level of consumer protection and to make fair alternative dispute resolution widely available to consumers.

Article 6 of the ADR proposal requires that member states must ensure that the persons acting in the ADR processes are competent, possess the specific expertise and are completely impartial.

Article 16 states that Member States should monitor the ADR entities and there also needs to be an authority to regulate them.

If this is to be established there needs to be a domestic authority in Ireland to regulate persons carrying on ADR processes and the enactment of the Draft Bill 2012 could prove very useful in ensuring this standard.

 The ODR proposal states, under article 5, that an EU wide online platform will be set up to deal with consumer disputes from purchases made online. The web site is proposed to be in all official EU languages and will link up the national ADR agencies on the site.

The ODR proposal contains a provision for electronic feedback and a network of online facilitators. Complaints shall be submitted by a form online according to article 7.

Article 8(3) states that the length of the procedure, whether the presence of the party is needed and the binding effect of the outcome must be communicated to the party.

Under article 13, traders should provide information to consumers about this online ODR facility for their consumer complaints.

 Richard Susskind in his book ‘Tomorrow’s Lawyers’[30] predicts that ODR

will prove to be a disruptive technology that fundamentally challenges the work of traditional litigators (and of judges).’

Although in the long run he believes it will be the most popular way to solve ordinary non- complex disputes.

This goes to show that we are moving forward in our thinking of alternative dispute resolution and there is much need for regulation in this area.

 Conclusion

 The report of the Joint Committee on Justice, Defence and Equality[31] stresses that the absence of regulation is one of the main difficulties with mediation in Ireland. Regulation is needed as if something were to go wrong in a mediation process such as a mediator compelled to give evidence in court or where there is a breach of confidentiality, regulation could aid this. Regulation is the way forward to secure the rights of the parties and to maintain the standard of mediators.

 Ireland needs the Draft Mediation Bill to be made into law as it will establish a solid legislative framework for mediation. Domestic legislation on mediation is essential if Ireland wishes to keep in line with the EU law on ADR. Finally, a clear definition of mediation will promote its use as a form of dispute resolution in civil and commercial disputes in general.

 Bibliography

 Books:

 –          Richard Susskind, ‘Tomorrow’s Lawyers, An Introduction to Your Future’, (Oxford University Press, 2013).

 Articles:

 –          Mr. Justice Kelly, ‘Alternative Dispute Resolution and the Commercial Court’ (2010) Arbitration and ADR Review.

 –          Brian Hutchinson, ‘Transposition of the Mediation Directive by May 21, 2011’ (2011) 18(4) C.L.P. 70.

 –          Sarah Conway, ‘Recent Developments in Irish Commercial Mediation – Part I’

(2009) 27(3) I.L.T. 43-48. 

–          Sarah Conway, ‘Recent Developments in Irish Commercial Mediation Part II’

(2009) 27 I.L.T. 58-62. 

–          Arran Dowling-Hussey, ‘The Mediation Directive: Was the Wait Worth It?’

(2008) 26 I.L.T. 235. 

–          Aideen Scannell, University of Limerick, ‘The Law Reform Commission’s Draft ‘’Mediation and Conciliation Bill’’ will lead to more questions than answers.’ (2012) February 11th.

Legislation:

 –          Directive 2008/52/EC of May 21, 2008, on certain aspects of mediation in civil and commercial matters (OJ L136/3).

 –          European Communities (Mediation) Regulations, 2011, S.I. 2011/209.

 –          Rules of the Superior Courts (Mediation and Conciliation) 2010, S.I. 2010/502.

 –          Proposal for a Directive on alternative dispute resolution for consumer disputes 2011/0373 (COD).

 –          Proposal for a Regulation on online dispute resolution for consumer disputes 2011/0374 (COD).

 –          Draft General Scheme of Mediation Bill 2012.

 –          Rule 6(1) (xiii) of Order 63A of the Rules of the Superior Courts.

 Law Commission:

 –          Law Reform Commission, Report on Alternative Dispute Resolution: Mediation and Conciliation  (LRC 98-2010).

 –          Law Reform Commission’s Draft ‘Mediation and Conciliation Bill’ 2010.

 –          Law Reform Commission, Consultation Paper on Alternative Dispute Resolution (LRC CP50, 2008).

 Reports

–          Oireachtas Joint Committee on Justice, Defence and Equality, ‘Report on hearings of the Scheme in relation to the Mediation Bill’. June 2012. (31/JDAE/007).

 Cases:

 –          Dunnet v Railtrack (2002) 1 W.L.R. 2434.

–          Nesselside Builders Limited v Carlow County Council (2007) 8157P.

–          McCarthy v O’Sullivan (2012) March, High Court, Ireland.

  Websites (links)

 –           European Code of Conduct for Mediators http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf.

 –          Aideen Scannell, University of Limerick, ‘The Law Reform Commission’s Draft ‘’Mediation and Conciliation Bill’’ will lead to more questions than answers.’ (2012) February 11th.

 –          Courts Annual Report http://www.courts.ie/Courts.ie/library3.nsf/(WebFiles)/1EAFA33B0C5E24F980257A3E0037FCC9/$FILE/Courts%20Service%20Annual%20Report%202011.pdf

 Conference

 –          Irish Commercial Mediation Association (ICMA) Conference 2013, March 21st,

The Aviva Stadium, Dublin.

 [1] Aideen Scannell, University of Limerick, ‘The Law Reform Commission’s Draft ‘’Mediation and Conciliation Bill’’ will lead to more questions than answers.’ February 11th, 2012. To be found at; http://www.cpdseminars.ie/mediation-news/the-law-reform-commissions-draft-mediation-and-conciliation-bill-will-lead-to-more-questions-than-answers/

[2] Section 14, Law Reform Commission’s Draft ‘Mediation and Conciliation Bill’ 2010.

[3] Section 4 and Section 5, Draft General Scheme of Mediation Bill 2012.

[4] Section 4(1) iv, Draft General Scheme of Mediation Bill 2012.

[5] Section 8, Draft General Scheme of Mediation Bill 2012.

[6] Section 9, Draft General Scheme of Mediation Bill 2012.

[7] Available at http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf.

8. Sarah Conway, ‘Recent Developments in Irish Commercial Mediation Part II’ (2009) 27 I.L.T. 58.

9. Sarah Conway, (2009) 27 I.L.T. 58.

10. (2009) 27 I.L.T. 58.

11. Directive 2008/52/EC. 

12. Brian Hutchinson, ‘Transposition of the Mediation Directive by May 21, 2011’

     (2011) 18(4) C.L.P.70.

13. Irish Commercial Mediation Association Conference 2013, March 21st, The Aviva Stadium, Dublin.

[14] Mr. Justice Kelly, ‘Alternative Dispute Resolution and the Commercial Court’ (2010) Arbitration and ADR Review.

[15] Rule 6(1) (xiii) of Order 63A of the Rules of the Superior Courts.

[16] Rules of the Superior Courts (Mediation and Conciliation) 2010, S.I. 2010/502.

[17] Introduced by Statutory Instrument 502 of 2010.

[18] Joint Committee on Justice, Defence and Equality, ‘Report on hearings of the Scheme in relation to         the Mediation Bill’. June 2012. (31/JDAE/007).

[19] Section 6(4), Draft General Scheme of Mediation Bill 2012.

[20] Dunnet v Railtrack (2002) 1 W.L.R. 2434.

[21] McCarthy v O’Sullivan, (2012) March, High Court.

[22] Rules of the Superior Courts (Mediation and Conciliation) 2010, S.I. 2010/502.

[23] In 2011 the Supreme Court had 499 matters and 190 appeals were disposed of by the court.

    In 2011 the High Court received 39,747 matters in civil and criminal. Available at

http://www.courts.ie/Courts.ie/library3.nsf/(WebFiles)/1EAFA33B0C5E24F980257A3E0037FCC9/$FILE/Courts%20Service%20Annual%20Report%202011.pdf

 [24]  Nesselside Builders Limited v Carlow County Council (2007) 8157P.

[25] Directive 2008/52/EC.

[26] European Communities (Mediation) Regulations, 2011, S.I. 2011/209.

[29] March 12th 2013.

[30] Richard Susskind, ‘Tomorrow’s Lawyers, An Introduction to Your Future’ (Oxford University Press 2013) p102.

[31] Oireachtas Joint Committee on Justice, Defence and Equality, ‘Report on hearings of the Scheme in relation to the Mediation Bill’. June 2012. (31/JDAE/007).