Ireland now has the capacity to be a major player as an international centre for resolving disputes. The US, European and other multinationals operating in India must be totally frustrated with the legal system there that is now issuing hearing dates in the High Court for December 2020. Notwithstanding that the Indian people are renowned for their longevity of life, it is highly unlikely that many of these large companies or personnel might be available to prosecute and defend these cases in 320 years time. The time is now ripe for Irish lawyers and other professionals to be upskilled in alternative dispute resolution and lets see a reversal of outsourcing, the reverse outsourcing of legal disputes in India to the Emerald Isle. Read the rest of this entry »
The European Union have passed the Directive on Mediation in Civil and Commercial Disputes encouraging the use of mediation in all Member States. In January 2010, The Minister for Justice and Law Reform, Dermot Ahern stated that Alternative Dispute Resolution is to be a “priority” in legislation.
Below are just a few snippets of where mediation appears, or shortly will become law here:
Mediation: Rules of The Superior Courts
THE NEW HIGH COURT RULES ON ADR & Mediation
A new Order 56A of the Rules of the Superior Courts (Mediation and Conciliation) 2010,came in to force on 16th November 2010 and will be similar to the procedure in the Commercial Court whereby a High Court judge may now adjourn legal proceedings to allow the parties engage in an ADR process. This means mediation, conciliation or any other dispute resolution process approved by the High Court. These rules will contain a costs sanction for those who fail or refuse without good reason to participate in an ADR process.
What does this mean for anybody involved in proceedings in the High Court?
ADR may now become “mandatory” over time in the High Court. The Chief Justice, Mr. Justice John Murray recently told a legal conference that the Government should do more to promote a professional mediation service and alter the perception of the courts as the first and only resort for dispute resolution. It’s inevitable that the parties to boardroom and shareholder disputes, property or commercial contract, divorce and family law, IP and trademark, cases, and even medical negligence cases may be “required” to engage in ADR. However, the judges will prefer if the parties embrace ADR at a much earlier stage and have first explored their options rather than be required to engage in a process which should be entered into voluntarily.
The new rules will provide for a procedure whereby the court can invite the parties to attend an information session on the use of mediation. Accordingly anybody contemplating High Court litigation today must be aware of the nuts and bolts of mediation, arbitration, conciliation or adjudication. Otherwise, it’s very likely that an unwilling party will be penalised with a costs sanction. This will be particularly relevant to state bodies with the current focus on the need to reduce legal expenses.
Enforcement of Court Orders Act, 2009
Permits a Judge to request a debtor or creditor to seek resolution of their disputes by mediation.
Circuit Court Rules (Case Progression (General), 2009
Case progression is a relatively new mechanism used by the courts. These rules facilitate the progression of the case to ensure that proceedings are prepared for hearing in a manner which is just, expeditious, economical and that court resources are employed optimally. Section 7 of these new rules enables the Judge or County Registrar, or one of the parties on application, to adjourn proceedings and invite the parties to use mediation.
Multi-Units Development Act, 2011
This new Apartment Management Company law will change the way disputes are handled for over 500,000 members of apartment management companies, investors and tenants. On the application by a party at any stage in the proceedings, the Court may direct the parties involved to go to mediation. Enacted into law on Monday 24th January 2011 and is awaiting a commencement order from the Minister for Justice in February, to take effect,from perhaps 1st February 2011.
Commercial Court Rules
These rules were introduced in January 2004 and permit a Judge of the Commercial Court to direct the parties to attend a mediation conference or for the parties to elect to undertake same. However, the practice of the court has always been to encourage the parties to engage alternative dispute resolution, very few, if any orders have been made by the Commercial Court, directing the parties to engage in mediation.
Civil Liability and Courts Act, 2004
In a personal injury action taken in the High Court, a Judge may direct the parties to attend a mediation conference.
An Bórd Snip Nua
Furthermore, it has been recognised that the use of mediation by state organisations pursuing cases against one another is the most cost-effective way of saving tax-payers money. This is evident from the “An Bórd Snip Nua” Report by Colm McCarthy – 16th July, 2009:
“The Group has noted the practice of different state organisations pursuing legal cases against one another e.g. the Commissioner for Aviation Regulation vs. Aer Rianta. This duplication unnecessarily increases the burden of legal costs borne by the State. The Group proposes that there should be compulsory [mediation] of legal disputes involving State bodies. Any State body wishing to resolve a legal dispute with another State body would be required to inform the relevant Minister who would then be responsible for mediating a solution or arranging for other forms of independent mediation . Legislative change should be initiated to implement this proposal if necessary.” (Pg 218, Vol 2.)