Irish Commission Moves EC Mediation Directive Focus to Matters at Home (Dec. 3).
December 3, 2010Ireland’s Law Reform Commission has stepped up its focus on alternative dispute resolution processes, following up on previous work in order to meet the requirements of the European Union’s mediation directive requiring country-members to use ADR in cross-border disputes.
The result is a whopping set of recommendations for boosting ADR use at home.
The commission last month released an expansive report on how alternative dispute resolution can function in the Irish legal system. The report includes a bill proposing bringing mediation into law in accordance with the directive and beyond.
The 231-page report, available here, released Nov. 16, deals extensively with new procedures for commercial cases, as well as criminal, consumer, family, and property matters, among others. The report summarizes at its end 108 recommendations for the new law, on subjects ranging from mediator training to conduct of court ADR.
[It suggests, among many other things, using the CPR Institute's Corporate and Law Firm ADR Pledges as models for best practices.]
There are some surprises. The report veers from conventional views of mediation confidentiality, providing a list of exceptions for permitting disclosure of mediation evidence in court--even though the report proposes a confidentiality privilege.
The commission also proposed in its new law to incorporate “emerging developments”–specifically, collaborative law practices in the family law setting, and early neutral evaluation for personal injury cases.
The 2008 EU Directive on Certain Aspects of Mediation in Civil and Commercial Matters requires mediation and ADR procedures for cross-border disputes. The Ireland Law Reform Commission apparently started its report to provide the infrastructure for the directive, but it actually ends up focusing more on reinventing domestic ADR.
The commission had published "Consultation Paper on Alternative Dispute Resolution" in 2008. The new report, “Alternative Dispute Resolution: Mediation and Conciliation,” finalizes its work with the recommendations and the proposed law.
In the consultation paper, the commission asked whether its ADR work should apply internally, to disputes in Ireland, beyond fulfill the EU directive mission. The answer was a strong “yes.”
The new report recommends that the legislative proposal, the Mediation and Conciliation Bill, “should apply to disputes arising within Ireland, and . . . is separate from the obligation to implement the 2008 EC Directive. . . .”
The Law Reform Commission final product follows the EC directive’s goal of increasing ADR use to boost the access to justice. The directive requires countries to implement their cross-border ADR procedures in 2011.
Irish ADR supporters hope that the law will pass in the first half of next year in time to address the EC directive requirements. See, e.g., Fergus Armstrong, “Law Reform Commission marks seismic shift on resolution,” Irish Times (Nov. 29) (available here).
The report sets out a broad examination of the definitions of mediation and ADR. It explores the nature of mediation, including an examination of the voluntary participation.
In its analysis, confidentiality gets a microscopic analysis. The five-member commission–which is headed by a former Ireland Supreme Court judge and includes a current Court member as one of its other members--emphasizes the essential need for mediation confidentiality. It recommends varied protections, including statutes, ethical codes, and in contracts between the parties and the mediator or conciliator. It ultimately asks that mediation and conciliation be subject to a privilege to exempt communications from being revealed.
But after analyzing the privilege’s application to mediation communications and participants, the commission also laid out detailed exceptions:
The Commission recommends that the confidentiality privilege does not apply -- where disclosure of the content of the agreement resulting from mediation or conciliation is necessary in order to implement or enforce that agreement; where disclosure is necessary to prevent physical or psychological injury or ill health to a person; where disclosure is required by law; where the mediation or conciliation communication is used to attempt to commit a crime, or to commit a crime, or to conceal a crime; or where disclosure is necessary to prove or disprove a claim or complaint of professional misconduct or negligence filed against a mediator or conciliator.
The Commission recommends that evidence introduced into it used in a mediation or conciliation that is otherwise admissible or subject to discovery in civil proceedings outside of a mediation or conciliation shall not be or become inadmissible because it was introduced into or used in a mediation or conciliation.
(Report section designations omitted.) The commission’s proposed law contains all of the exceptions.
The report notes that the nation’s courts already have installed ADR processes to deal with civil matters. It cites the 2004 establishment of the High Court’s Commercial Court “list” for large commercial disputes, which “uses active judicial case management to improve the efficiency of the litigation process itself and also encourages the use of mediation and conciliation.”
The commission also believes that companies can do better in terms of ADR use. It says corporate programs are well accepted and effective. But it also cites a 2009 study by the Irish Commercial Mediation Association showing a high awareness of mediation processes, with lax deployment. The commission reports, “[I]t can be concluded that while there exists a broad awareness about commercial mediation in Ireland, this has not been reflected in the practical uptake of commercial mediation prior to the commencement of commercial proceedings.”
In the report’s commercial ADR section, the commission also analyzes and backs use of mediation and other processes for shareholder disputes, intellectual property and construction.
[The report notes that the commission considers the CPR Institute’s Corporate and Law Firm Policy Statements on Alternatives to Litigation–better know as the CPR Pledges–along with a similar Singapore pledge, as “models which could be incorporated by appropriate commercial bodies in Ireland to encourage their members to consider the use of ADR processes, such as mediation and conciliation, to resolve appropriate commercial disputes.”]
–Russ Bleemer, Editor, Alternatives