{"id":4353,"date":"2018-09-23T11:17:00","date_gmt":"2018-09-23T11:17:00","guid":{"rendered":"https:\/\/legalblog.ie\/statutory-and-other-adr\/"},"modified":"2023-06-25T08:37:54","modified_gmt":"2023-06-25T08:37:54","slug":"statutory-and-other-adr","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/statutory-and-other-adr\/","title":{"rendered":"Statutory and other ADR"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/statutory-and-other-adr\/#ADR_Overview\" title=\"ADR Overview\">ADR Overview<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/statutory-and-other-adr\/#Mediation\" title=\"Mediation\">Mediation<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/statutory-and-other-adr\/#Neutral_Evaluation\" title=\"Neutral Evaluation\">Neutral Evaluation<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/statutory-and-other-adr\/#Evaluative_Mediation\" title=\"Evaluative Mediation\">Evaluative Mediation<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/statutory-and-other-adr\/#Mediation_Arbitration_Hybrids\" title=\"Mediation\u00a0 Arbitration Hybrids\">Mediation\u00a0 Arbitration Hybrids<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/statutory-and-other-adr\/#General_Courts_Mediation_Powers\" title=\"General Courts Mediation Powers\">General Courts Mediation Powers<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/statutory-and-other-adr\/#Mediation_and_Case_Management\" title=\"Mediation and Case Management\">Mediation and Case Management<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/statutory-and-other-adr\/#Statutory_ADR_The_Workplace_Relation_Commission\" title=\"Statutory ADR; The Workplace Relation Commission\">Statutory ADR; The Workplace Relation Commission<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/statutory-and-other-adr\/#Other_Statutory_Adjudication_II\" title=\"Other Statutory Adjudication II\">Other Statutory Adjudication II<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/statutory-and-other-adr\/#Public_Sector_Ombudsman\" title=\"Public Sector Ombudsman\">Public Sector Ombudsman<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"ADR_Overview\"><\/span>ADR Overview<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>ADR is a means of resolving disputes by using a third party to help reach a solution. There are various types of ADR such as mediation, expert appraisal or expert determination. ADR is voluntary. Either party can withdraw at anytime. In contract neither party can withdraw from litigation without paying the other party&#8217;s costs. If the parties are unable to negotiate a settlement, the Court will usually impose its solution<\/p>\n<p>There are various types of ADR. Parties to a dispute are entirely free to agree the\u00a0methods and procedures most appropriate to their dispute. The following are number of\u00a0ADR methods.<\/p>\n<p>A \u201cmediator\u201d will usually take written statements from both sides. He will discuss the case and tell them what he thinks about it on a \u201cwithout prejudice\u201d basis. The mediator will not disclose confidential information to the other party. The discussions help the mediator identify real areas of disagreement and the points that are most important. He then tries to move the parties towards a constructive solution.<\/p>\n<p>The parties and the mediator will typically be in the same building. This enables matters\u00a0to be dealt with quickly and if necessary parties can meet face to face to iron out difficulties. It is possible however have mediation without any meeting conducted by telephone or correspondence.<\/p>\n<p>\u201cMed\/Arb\u201d is a form of alternative dispute resolution where the parties agree to submit to\u00a0mediation but if it does not work agree to refer to arbitration. They may use the mediator\u00a0who has been acting as mediator, as the arbitrator. This will save costs as the arbitrator\u00a0already knows the facts of the case. There is a risk he may become privy to confidential\u00a0information so the agreement will usually give either party the right to object to the\u00a0mediator becoming arbitrator if necessary.<\/p>\n<p>A further form of ADR is a structured settlement procedure. Here the parties appoint a\u00a0neutral person who sits as chairman of a tribunal consisting of himself and representatives of both parties. The representatives will not be connected with the\u00a0dispute but will have authority to reach compromise if they see fit. In expert \u201cappraisal\u201d the parties refer the dispute to an independent expert in the field concerned. His opinion is not binding but he can influence subsequent negotiations.<\/p>\n<p>Another method is \u201cexpert determination\u201d the parties select an expert to decide the matter, they agree to accept his decision. This decision cannot be enforced as an arbitration award, but would be binding as a contract.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Mediation\"><\/span>Mediation<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Mediation has been given an ever-increasing role under the Court rules.\u00a0 In England and Wales 1999 Law Reforms consequent on the Woolf report places an obligation on parties to consider mediation.\u00a0 Parties can be penalized in terms of costs if they refuse to engage in appropriate ADR.\u00a0 See the England and Wales litigation section of our website.<\/p>\n<p>Mediation is encouraged in a family law context.\u00a0 Over the last decade\u00a0mediation and alternative dispute resolution has been formally incorporated into the Court rules.\u00a0 Provisions for the consideration mediation have been incorporated into the Court rules.<\/p>\n<p>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. \u00a0It is part of the general policy that parties should be encouraged to settle dispute privately without resort to litigation.\u00a0 Mediation ultimately must be voluntary.<\/p>\n<p>The Court can exert a certain amount of pressure on the parties to give consideration to mediation.\u00a0 The Court may take the initiative in the course at any stage particularly in the course of direction hearings.\u00a0 There is no obligation on parties to mediate. \u00a0A European Union directive has been passed to encourage the use of mediation in commercial and legal matters.<\/p>\n<p>The EU Directive was require to be implemented by May 2011.\u00a0 It applies only to cross-border disputes.\u00a0The principles may be applied to internal disputes.\u00a0 Voluntary codes of conduct are encouraged for mediators.\u00a0 States must provide for enforcement of written agreement arising from mediation provided parties agree to it.\u00a0 The Directive requires that mediators will not be compelled to give evidence in proceedings or arbitration except for very limited circumstances.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Neutral_Evaluation\"><\/span>Neutral Evaluation<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 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.<\/p>\n<p>In contrast to mediation, evaluation is an advisory or evaluative process and is not,\u00a0 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.<\/p>\n<p>Neutral evaluation should take place at an early stage and is commonly referred to as early neutral evaluation.\u00a0 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.<\/p>\n<p>Neutal evaluation is given by a third party neutral entity. The evaluator should be an expert in the relevant area.\u00a0 It is, most commonly a barrister or solicitor. It\u00a0 may be a third party expert in another field, which is appropriate to\u00a0 the dispute.<\/p>\n<p>The procedure for neutral evaluation is flexible and can be tailored to the circumstances.\u00a0 The parties can control the information to be placed before the evaluator.\u00a0 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.<\/p>\n<p>Each party may make submissions together with evidence and supporting documents, as they see fit.\u00a0 The evaluator may choose to have private meetings or may have meetings with both parties present,\u00a0 who may\u00a0 make submissions.\u00a0 The parties may agree to present the case at an oral hearing.<\/p>\n<p>The evaluator should evaluate the evidence based on the facts as they appear and the law, saying out his recommendations and decision.\u00a0 The evaluator carries out his evaluation independently. He may or may not give detailed reasons for the decision.<\/p>\n<p>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.\u00a0 The approval of the judge in charge of the Commercial List must be obtained.\u00a0 A judge is nominated to undertake the evaluation just based on the summary of information submitted.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Evaluative_Mediation\"><\/span>Evaluative Mediation<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Evaluate mediation role involves the mediator in evaluating the merits of the dispute and give a neutral evaluation.\u00a0 He should do so only with the consent of the parties. The evaluation may\u00a0 take place in an exploratory or bargaining phase during a private meeting.\u00a0 The evaluation provided to each should be matching and identical.<\/p>\n<p>The mediator may recommend that third-party, such as an expert to carry out a neutral evaluation in order to determine particular issues.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Mediation_Arbitration_Hybrids\"><\/span>Mediation\u00a0 Arbitration Hybrids<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 This could prejudice the flow of the mediation in the first stage.<\/p>\n<p>The arrangement need not necessarily be defined in this way from the outset.\u00a0 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.\u00a0 A further arbitration agreement may be appropriate at a later point.<\/p>\n<p>Under Arb-Med, a simplified arbitration takes place at the outset followed by mediation.\u00a0 The arbitrator makes an arbitration award which is sealed and not revealed, unless the parties are unable to settle.\u00a0 If there is an ultimate settlement, the sealed arbitration award is not opened or acted on.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"General_Courts_Mediation_Powers\"><\/span>General Courts Mediation Powers<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Mediation has been commonly used in family legislation cases for some time.\u00a0 It is a requirement in some important family proceedings, including in particular judicial separation and divorce, that the parties\u2019 legal advisers certify that they had been advised in relation to mediation.<\/p>\n<p>The Courts have been conferred with general powers to invite parties to consider ADR and adjourn the case to facilitate ADR.\u00a0 In this context, ADR means mediation, conciliation or other dispute resolution other than arbitration.<\/p>\n<p>On an application of either party or of its own motion may adjourn the proceedings at any time it considers just and convenient. \u00a0The 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.<\/p>\n<p>The Courts may consider the willingness of parties to refer to ADR in the context awarding costs.\u00a0 Certain types of cases are more amenable in determining costs.\u00a0 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.<\/p>\n<p>The mediation directive applies to cross-border disputes.\u00a0 It provides generally that the Courts may invite parties to attend an information session on the use of information.\u00a0 Parties are allowed to encompass agreements made pursuant to mediation as a Court Order.\u00a0 Mediation must be confidential. \u00a0Provisions must be made to ensure the limitation periods are extended.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Mediation_and_Case_Management\"><\/span>Mediation and Case Management<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The District Court, Circuit Court and High Court\u00a0 case management and case progression rules have been progressively expanded in scope.<\/p>\n<p>The Judge or County Registrar\u00a0 as the case may be deals with case progression.\u00a0\u00a0The 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.<\/p>\n<p>The Judge or County Registrar may give directions to facilitate the mediation or ADR.\u00a0 They may list the proceedings for a report on the progress of the ADR case.\u00a0 Either party may apply to have the order discharged.\u00a0 Either party may request the Judge who is hearing the matter to invite the parties to attend mediation.<\/p>\n<p>The small claims procedure seeks to resolve small disputes between consumers and businesses on an economic basis.\u00a0 In the first instance, the process contemplates mediation through the District Court Clerk who is deemed the small claims registrar.\u00a0 The matter can proceed to a determination.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Statutory_ADR_The_Workplace_Relation_Commission\"><\/span>Statutory ADR; The Workplace Relation Commission<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Workplace Relation legislation provides for dispute resolution by way of conciliation, mediation or adjudication as the principal means of dispute resolution. Conciliation\u00a0is a voluntary process in which a professional conciliation officer<br \/>\nfacilitates employers and employees and\/or their representatives to\u00a0resolve workplace issues when their own efforts have not succeeded.\u00a0The conciliation officer acts as an impartial facilitator in discussions\u00a0between the parties.<\/p>\n<p>The WRC Mediation Service is staffed\u00a0 by\u00a0experienced and qualified Mediators.\u00a0Where a complaint is referred to the WRC under Employment\u00a0Rights legislation the WRC adopts two approaches in the delivery\u00a0of mediation:<\/p>\n<ul>\n<li>Telephone based mediation\u00a0This is used when the complaint is relatively straightforward. The\u00a0mediator will communicate by telephone with the complainant and\u00a0respondent and work with the parties in finding an acceptable solution.\u00a0Telephone based mediation is very effective and significantly reduces\u00a0the cost of resolving the complaint for both parties.<\/li>\n<li>Face to face mediation.\u00a0Where the complaint is more complex the mediator will meet directly\u00a0with the complainant and respondent in an effort to find a resolution.\u00a0T<\/li>\n<\/ul>\n<p>Adjudication Officers of the Workplace Relations Commission\u00a0(WRC) are statutorily independent in their decision making duties\u00a0as they relate to adjudicating on complaints referred to them by the\u00a0WRC Director General.\u00a0The Adjudication Officer\u2019s role is to hold a hearing where both parties\u00a0are given an opportunity to be heard by the djudication Officer and\u00a0to present any evidence relevant to the complaint.<\/p>\n<p>Hearings of the\u00a0Workplace Relations Commission are held in private. However,\u00a0complaints may, in certain instances, be disposed of by means of\u00a0a written procedure (i.e. without hearing). The Adjudication Officer\u00a0will not attempt to mediate or conciliate the case. Parties are free\u00a0 to represent themselves or choose their own representation.\u00a0The Adjudication Officer\u00a0 decides the matter and give a\u00a0written decision in relation to the complaint. T<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Other_Statutory_Adjudication_II\"><\/span>Other Statutory Adjudication II<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Similar procedures to those of the WRC are used by the Residential Tenancies Board.\u00a0 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. \u00a0\u00a0The adjudicator decides how the matter is dealt with.\u00a0 The hearing is in private.\u00a0 If the adjudication is not appealed it will become a binding order for the PTB.<\/p>\n<p>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.\u00a0\u00a0Mediation is offered. In default, it may adjudicate and investigate alternatively.<\/p>\n<p>If mediation does not work or is not likely to proceed it may proceed to resolve the matter by investigation or adjudication.\u00a0 The Ombudsman may abandon mediation if it is not likely to be successful.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Public_Sector_Ombudsman\"><\/span>Public Sector Ombudsman<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>There are numerous other ombudsmen in the public and quasi public sector.\u00a0 They include Garda Siochana Ombudsman, Press Ombudsman, Legal Services Ombudsman, European Ombudsman.\u00a0 The legislation permits mediation or informal resolution with consent.\u00a0 The general principle is that if the matter can be resolved by mediation it does not proceed to formal adjudication by the Ombudsman.<\/p>\n<p>The general public sector Ombudsman (see our section on government) investigates complaints.\u00a0 The Ombudsman attempts to resolve the complaint informally before undertaking a formal investigation.<\/p>\n<p>The Press Ombudsman hears complaints in relation to the Press Council code of conduct and practice.\u00a0 The Ombudsman provides the public with an informal means of resolving complaints about newspapers in respect of breach of the code.<\/p>\n<p>The Ombudsman attempts to resolve matters directly with the parties concerned.\u00a0 It will seek to resolve the matter by conciliation at first.\u00a0 If this is not done it will make a determination.<\/p>\n<p>The Legal Services Ombudsman deals with appeals from complaints to the Law Society and Bar Council.\u00a0 The Ombudsman investigates complaints about the handling by the latter bodies of the complaints in relation to barrister and solicitors.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-4353\" data-postid=\"4353\" class=\"themify_builder_content themify_builder_content-4353 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>ADR Overview ADR is a means of resolving disputes by using a third party to help reach a solution. There are various types of ADR such as mediation, expert appraisal or expert determination. ADR is voluntary. Either party can withdraw at anytime. In contract neither party can withdraw from litigation without paying the other party&#8217;s [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[321],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4353"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=4353"}],"version-history":[{"count":3,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4353\/revisions"}],"predecessor-version":[{"id":21560,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4353\/revisions\/21560"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=4353"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=4353"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=4353"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}