Tag: H.R.

The staff Xmas party…too much cheer could cost you dear

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I know, I know, the party poopers are at it again. But just dusting down some seasonal advice might save you a lot of trouble, and cost!

(This is an updated version of a post from last year, and I thought it may be helpful to run it again.)

The fact is the Christmas party (or other social events, or work events away from the normal workplace) gives rise to obligations and may be covered by employment rights law. In any event they are covered by general legal provisions, on sexual assault for example.

Bullying legislation refers to behaviour ‘at the place of work or in the course of employment’ and while a single act will not constitute bullying the same does not apply to harassment, and that normally means sexual harassment.

This is defined (in broad terms) as inappropriate or unwanted verbal or physical behaviour and could result in a complaint by a victim of such behaviour under the company  ‘Dignity at Work ‘ policy (if you don’t have one…you should!)

And after the ‘rake of pints,’ shots and general bravado the insight necessary to distinguish between acceptable and unaceptable behaviour may diminish, with consequences for colleagues who have a clear legal entitlement to be free of certain types of  unacceptable behaviour. And this could cover a wide range of behaviours!

And this could include the line between sexual harassment and sexual assault (which is a crime). It’s not as wide as may be thought in the macho mind.

And while these comments have focussd on sexual harassment there are other aspects to dignity at work which may also be offended. We now have minorities in Ireland whose right to equal treatment is enshrined in law.

I referred last year to an article in the Sunday Business Post by solicitor Linda Hynes of Leman Solicitors  to a fight at an office party in Malahide which resulted in an unfair dismissal and cost the employer €150,000! 

And the employer may be liable for such behaviour if  s/he has not taken reasonable steps to prevent or address it.  Linda Hynes’ excellent checklist on Work Place social events can be accessed here 

The Small Firms Association has noted that:

‘Employers must be aware that the party venue is basically an extension of the office and that they remain responsible for the well-being, protection and behaviour of employees during such events.  Employers should make note in a work function invitation that appropriate behaviour is required at the party.’

If you need more information contact pat.brady@workplacesolutions.ie and see Equality page on this site

Sunday Business Show, Today FM Oct 14th. Pat Brady on the Sunday Papers and other things

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Delighted to have been a guest on the Sunday Business Show on October 14th with Presenter Conaill O’Morain reviewing the papers with Eilis Quinlan.

You can hear the show here. My contribution begins about 1o minutes in. (After the initial promo you can slide the cursor up to that point)

Thanks to Conaill, Producer Myra Hayes and all the team at the Sunday Business Show

European Labour Law Network, The Hague Oct 11/12

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Delighted, and honoured to have been invited to the 5th Annual Legal Seminar of the European Labour Law Network (ELLN) The theme of this year’s seminar is: “Labour Law in a Greying Labour Market – Challenges of Active Ageing”. The seminar will take place on Thursday 11 October and Friday 12 October at the Bel Air Hotel in The Hague / The Netherlands. I’m hoping to have lots of interesting material from this event for future blogs!

PROGRAMME 

Labour Law in a Greying Labour Market – Challenges of Active Ageing –

Thursday 11 October 2012 – Moderator: Prof. G.J.J. Heerma van Voss

14.30 – 15.00 Opening & Welcome

Prof. Guus HEERMA VAN VOSS – Co‐organiser ELLN, Leiden University, the Netherlands

Mr. Armindo SILVA – European Commission, Director of DG‐EMPL.B Employment and Social Legislation, Social Dialogue, Brussels, Belgium

15.15 – 15.30 General introduction

Mr. Steven TOBIN – Head Education Programme and Country Review, International Institute of Labour Studies of the ILO, Geneva, Switzerland

Mr. Ralf JACOB ‐ European Commission, Head of Unit EMPL.D.3. Active Ageing, Pensions, Healthcare and Social Services, Brussels, Belgium

15.30 – 16.00 16.00 – 16.30

The position of older workers in labour law

Keynote speech by Prof. Ann NUMHAUSER‐HENNING – member Scientific Committee ELLN, Lund University, Sweden

Reflection by Dr. Erika KOVÁCS, Researcher, Director Institute of European and Comparative Labour Law, University of Pécs, Hungary

16.45 – 18.00

Working group discussions on “The position of older workers in labour law”

Friday 12 October 2012 – Moderator: Prof. B. Waas

09.30 – 10.00 Age discrimination, retirement conditions and specific labour arrangements

Keynote speech by Prof. Maria DO ROSÁRIO PALMA RAMALHO, Faculty of Law, University of Lisbon, Portugal

Reflection by Prof. Mark FREEDLAND FBA, Professor Emeritus of Employment Law in the University of Oxford, United Kingdom and member of the Executive Committee of the European Anti‐discrimination Legal Network

10.00 – 11.15 Working group discussions on ”Age discrimination, retirement conditions and specific labour arrangements”

12.15 – 12.30

Young versus old or Intergenerational solidarity

Keynote speech by Prof. Jean‐Pierre LABORDE – Professor at the University of Montesquieu‐Bordeaux IV, Member of the Centre for Comparative Labour and Social Security Law, France

Reflection by representative of the European Trade Union Confederation (ETUC) –

(tbc)

Mrs. Renate HORNUNG‐DRAUS, Managing Director, Confederation of German Employers’ Associations (BDA), Berlin, Germany

12.30 – 13.30

Working group discussions on “Young versus old or Intergenerational solidarity”

14.45 – 15.00

Main findings concerning older workers of the evaluative study on part‐time and fixed work directives, carried out for the European Commission

Mrs. Tina WEBER, Principal Researcher ICF GHK

15.00 – 15.45 Questions & Answers

Moderator: Prof. Catherine BARNARD – member Scientific Committee ELLN, University of Cambridge, Trinity College, United Kingdom

15.45 – 16.00 Closing

Ms. Muriel GUIN – European Commission, Head of Unit DG‐EMPL.B.2 Labour Law, Brussels, Belgium

Prof. Bernd WAAS – Coordinator ELLN, Goethe University Frankfurt, Germany

UCD School of Law Conference ‘Current Fundamental Issues in Employment Law’

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UCD School of Law (with the support of the Employment Law Association of Ireland)  conference on

 CURRENT FUNDAMENTAL ISSUES IN EMPLOYMENT LAW

 University College Dublin, Friday, September 28th  & 29th September 2012

Conference Schedule

Two main sessions on the key issues in employment law in Ireland today

  • Workplace Relations Reform
  • Freedom of Association & Collective Bargaining

Full details  can be accessed here 

I hope to post a report on some of the contributions shortly

Workplace Mediation..towards a paradigm shift….

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Students preparing for the world of workplace dispute resolution in years gone by might have learned the really useful skills they needed in military manuals such as the ‘Art of War’ by Sun Tzu!

The process was one in which one side prepared and launched a series of ambushes, initially repelled by the other side, but sometimes leading from skirmish to pitched battle, to outright war, (metaphorically speaking) if things got really bad.

Only at the point when it became clear that the battle would succeed in exhausting and damaging both sides would they seek the intervention of a third party, sometimes through ‘conciliation’, or eventually a form of adjudication (both part of the State dispute resolution machinery).

Through a combination of the conciliator’s skill, helped by a large dose of nervous and physical exhaustion a settlement would be reached (4 am seemed to be a good time) and all retreated to bed, tired and mostly unhappy, worried about how the ‘best available offer’ would look in the cold light of the following day!

This is a caricature, of course, and somewhat of an exaggeration, but only somewhat.

Its essential characteristics retained the ingredients of war making; brinkmanship, the pursuit of triumph, unswerving belief in the rightness of the cause and a determination to beat the other side into submission with glorious indifference to any ‘collateral damage’ that might result.

Then the era of individual employment rights brought new challenges, especially in the context of demanding principles of fair procedure. These seemed to result in the process becoming more important that the outcome, and this calcification of dispute resolution procedures came at the expense of early or amicable resolution.

When one promotes one of the general advantages of mediation as being the maintenance of relationships between the parties the importance of this in workplace settings is much more important.

In the commercial context it may mean that people who have done business together in the past will continue to do so, will not insult each other as they pass on the fourteenth tee or at worst will not seek to actively damage each other.

In a workplace setting where relationships are a good deal more intimate the importance of this is more significant; two teachers in the same staff room, two retail assistants behind the same counter, two doctors in the same ER, two paramedics on the same ambulance.

These relationships are at such proximity that the notion of maintaining relationships has an added importance beyond that needed in a commercial situation.

It is in these settings that the option of mediation offers real benefits.

And so it would seem obvious that this will be embraced by disputants and their representatives with enthusiasm!

Perhaps not!

The welcome provisions in the new Mediation Bill requiring lawyers to advise clients of the advantages of mediation are only one half of the picture.

In November 2012 at a CIArb seminar in Dublin on the topic ‘ADR in Australia; lessons for Ireland’ the then President of CIArb Professor Doug Jones said that one very big lesson to emerge from the Australian experience was that ADR vehicles; mediation, arbitration etc are primarily client-driven.

Clients tell lawyers they want mediation or other ADR vehicles, he said, not the other way around.

When the ‘Automatic Referral to Mediation’ Pilot Scheme was introduced at London Central County Court research (by Prof Hazel Genn, 1998) showed that in approximately 80% of cases one or both parties objected to it.

“Other research shows that people are not as enthusiastic about mediation as the government, the judges and the mediation community think they ought to be’

Paul Randolph, New Law Journal April 2010

A concrete example of this in the workplace is in the following case .

Some workplace policies on mediation are clear enough. Not only must the option of mediation be offered (in Dignity at Work cases, in particular) but the advantages of mediation should be fully understood by the parties so that they might make an informed decision such as in the following extract.

Both parties will be requested to consider the use of mediation and every effort will be made to secure their agreement. An appropriate person who is experienced or well versed in mediation will meet with each of the parties separately to explain the mediation process and its benefits. This person may be from management, the unions or the agreed list of health service mediators.

It is vitally important that steps like this are fully understood and implemented as the merits of mediation are, in fact often poorly understood in general outside the mediation community as the research by Professor Genn indicates. Even allowing for some change since, and more will hopefully follow the enactment into law of the Mediation Bill there is no room for complacency.

Given that the word ‘mediation’ is in relatively general currency this may obscure the strengths of what is a very powerful dispute resolution process or lead to unfounded presumptions about how its value.

Despite the foresight of the authors of policies on Dignity at Work in anticipating these difficulties by inserting a requirement that parties be met by a person experienced or ‘well versed’ in mediation can we be sure it always happens?

Trade unions, accustomed to a traditional way of doing things and the ‘conciliation’ approach of the LRC may also have much to learn about facilitative mediation. It is all too easy to view the mediation option now increasingly being provided for in workplace procedures agreements as a stepping stone on the route to the Rights Commissioner or EAT; just one station on a railway journey where the journey is more important than the destination.

Recent press reports referring to recommendations of a ‘mediator’ in the redundancy talks at one of the leading banks will jar on the ears of a trained mediator.

This may be understandable but it is not helpful in building an appreciation of the powerful tool that mediation is; or in developing a move away from confrontation, hidebound procedures and towards consensual dispute resolution. (The CIPD reckons that HR practitioners with mediation training are 80% more likely to resolve a dispute than those without).

This it can do by ‘digging in’ to the real causes of a party’s grievance, bringing unarticulated material to the surface and attempting to resolve it. Thus it can give meaning of real substance to a phrase such as ‘giving the person their day in court’.

Except that it is not court but a place where a person’s need to be listened to can be met as a first step in resolving their issues.

Research shows (Law Reform Commission report on Mediation) that often parties are forced into litigation (and its equivalent in the workplace) because no-one would listen to them or offer them any apology for their sense of grievance. In the workplace this is often because of a slavish dedication to process over resolution.

Herein lies another of the strengths of the mediation process; it can adapt in a flexible and pragmatic way to the needs of the parties and their problems. The mediator creates a ‘safe’ space, but within an overall framework that has a shape and a structure where the parties can negotiate a mutually acceptable outcome.

From a practitioner’s point of view it might be assumed that when parties indicate initial willingness to attend mediation this is half the battle. Even those who do opt for it may still harbour incomplete or inaccurate notions about it.

In these circumstances a pre-mediation step is essential, ideally not an hour before the main mediation but at sufficient remove to enable the mediator to fully explain the process and the parties to digest it.

In this respect the task of the workplace mediator is a challenging one.

In commercial mediations nothing quite concentrates the mind like the daily costs of running a High Court action! This may be a negative reason for entering mediation but it is a powerful one.

In the workplace, disputants can opt to allow their grievances to simmer, occasionally boil over, but in any event remain unresolved in an atmosphere of sullen stalemate, which impacts on colleagues, organisational outputs, and of course themselves.

HR practitioners and union officials locked in the highly process-driven structures that currently pass for dispute resolution mechanisms in the workplace may struggle to break free of them, even where they want to, which is not always. They must really mean it when they agree to enter mediation, not see it as just another stage on the journey to adjudication.

This may be the era of mediation.  But what is required is a paradigm shift in the way dispute resolution is seen and practised currently in Irish workplaces so that the art of dispute resolution can be clearly distinguished form the Art of War.

Pat Brady

Accredited Mediator

June 10th 2012

German Steel Workers’ union negotiates 4.3% increase

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The threat of an all-out strike in Germany’s metal-working industry appears to have receded following the conclusion of a deal between engineering employers and the trade union IG Metall.

This has delivered a 4.3% pay rise for workers in the state of Baden-Würtemberg in the south west of the country. While only a regional deal at this stage, in the way of these things it is expected to travel throughout the metal-working and electronics sector in Germany.

Baden-Württemberg is home to several large manufacturers including the carmaker Daimler.

According to the IG Metal website despite a degree of initial confusion employers in Saxony have also signed the agreement and it appears they will be followed by their counterparts in North Rhine-Westphalia and Lower Saxony.

The agreement will last for 13 months and was concluded following 17 hours of negotiations near Stuttgart, which dragged into the early hours of Saturday. It ends weeks of partial walkouts and industrial action.

The employers had previously offered  2.6%  in response to union claims for a 6.5% increase. Not hard to see how they settled on 4.3%!

It removes the threat of the sector’s first full-blown industrial action in a decade.

Not the first increase in Germany!

The deal follows a pay rise of 6.3% for the two million workers in Germany’s public services earlier this year.

Workers in Ireland and elsewhere in Europe will be casting an envious eye at these developments as they cope with redundancy and wage cuts but clearly they reflect realities in the German economy which are not present elsewhere.

It confirms a simple business truth that workers will share in economic growth if they contribute to it.

Comments by Finance Minister Wolfgang Schäuble to the weekly newsmagazine Focus that German workers ‘deserved’ pay increases provide an interesting perspective on the growth v austerity (Hollande v Merkel) debate going on in the Eurozone at the moment.

“It’s normal that wages rise faster here than in other EU countries,” Schäuble said. “We have years of reforms behind us, and by increasing pay, Germany will help reduce economic imbalances in Europe.”

Further elaboration needed on this perhaps, but a very interesting comment.

Source (dpa, Reuters); edited; Workplace Solutions.

See also www.igmetall.de/ Alas, Google translation is practically unintelligible

May 26th 2012

Annual report of Chairman of CIArb Ireland.

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Chartered Institute of Arbitrators (Irish Branch)

Chairman’s Annual Report 2011 2012 (Edited)

(My term of office as Chairman came to an end on May 16th 2012. Thanks to all for a great honour and a most fulfilling experience)

Introduction

The year under review, like a great deal else in Ireland in recent times has been dominated by issues arising from or the fallout of the recession.

It affected participation in branch events, take up on training and other events and on membership itself. And yet paradoxically as business strives for improved ways of avoiding and resolving disputes the services we offer may come in to their own.

My purpose in this report is twofold.

The first is to give members of the Institute in Ireland a picture of what their committee has been doing for the last year.

The second is to offer my own brief assessment of where the Irish branch is going after  my three years of very close involvement with the institute.

The Committee

The committee of the branch held eleven ordinary meetings and one special meeting. Attendance at meetings is excellent with an average attendance of 10 meetings.

Events & Training

The following is a brief list of the main events undertaken by the committee in the course of the year since the AGM 2011m Transnational Mediation, Belfast, September, International Young Arbitrators event, Distillery Building, Dublin November,International Commercial Arbitration Course, Malahide, 9th May 2011
, Introduction to Mediation  Engineers Ireland  May, Accredited Mediation Training, Stillorgan, June 2011, Debt mediation seminar IPA Dublin June, Evening at Hugh Lane Gallery (with CPLA) July, Award Writing (with the Law Society) Blackhall Place September, ADR in Australia; lessons for Ireland,  Doug Jones Radisson Hotel Dublin November, Introduction to Arbitration (Ethiopia) February, Workplace Mediation Training (x 2) Lynn House Dublin, 2010 Arbitration Act Mason Hayes & Curran Dublin March (Young Members Group), Marketing your Mediation Practice April Lynn House April.

Annual Golf competition, Greystones, June, Annual Dinner, Westbury Hotel November

In pipeline

Accredited Mediator course June 7th  (confirmed)

Kenneth McQuillan lecture (advanced, due May)

YMG Event Arthur Cox April 30th

YMG event Coolock July 2nd

It is worth highlighting the two major conferences; on transnational mediation with the NI Chapter in Belfast and an International Young Arbitrators event at which delegates from 20 countries attended. The attendance at the Belfast event was disappointing but the event was excellent with a high quality panel of speakers including Mr Justice John Gillen, judge of the N.Ireland High court.

It is hoped that the Chapter will hold a regular event in the future and one is currently under planning.

I wish to record a special word of thanks to members of the branch who are not on the committee who assisted with these events.

Especially to Arran Dowling-Hussey for his contribution to the Young Member’s conference in November and the YMG events. To John O’Brien for the golf and to all members of sub committees

Legislation Issues

The Main issues on which the Branch was engaged were the Construction Contracts Bill and latterly the scheme for Mediation Bill. Submissions were made on both matters; to the Minister in the first case and to the Oireachtas committee on Justice, who we will be meeting on May 9th

The Construction sub committee has been giving consideration to how we should best respond to the enactment of the Adjudication Bill and a detailed submission was sent to the Minister in January.

Again the input of committee members and others into both these documents should be acknowledged.

Both submissions are available on the website

Communications

Regular press statements were issued during the year; in relation to various events and also on the Construction Contracts and Mediation legislation.

Our new website, while it receives quite a lot of traffic is not delivering on its potential for a reason that is common to much of the deficits on our work; lack of manpower resources to update and market it. Nonetheless, it remains a vital tool.

Despite living in the digital age we continue to get requests from members for something in hard copy and did produce one issue of our newsletter during the year; the first since 2010 and a second is imminent.

Appointments

The number of appointments made fell somewhat on the previous year but that was unusually high compared to previous years.

I return below to the issue of building the Institute as the point of ‘first call’ for ADR users in Ireland which is the real issue.

The Dublin Dispute Resolution Centre

Beginning in the term of office of my predecessor Terence O’Keeffe an idea was under discussion to create a Dublin Dispute resolution centre which would provide a focal point for arbitrations, mediation etc in Ireland and also offer a launch pad for the campaign to develop Dublin as a seat for international arbitrations.

I am very happy to report that following an input of very considerable time and effort by many people this project is reaching fruition.

It involves a significant refurbishment of the Arbitration centre in the Distillery building and the creation of a new joint venture between CIArb and the Bar Council to manage and develop the project which is soon to be finalised.

There will be an investment by both parties in the venture and it will be directed and run by a new company with the two bodies as joint shareholders.

Our discussions have involved a rigorous review of the proposed business plan for the project and the application of the considerable planning and architectural talent at our disposal on, and via the committee on the refurbishment.

We have taken, or are still in the process of taking independent business and legal advice on all relevant aspect of the projects and it has the strong support of the committee.

This is more than a commercial venture. It brings the Institute into a strategic alliance with the Bar and allows us to promote and position CIArb as the prime independent centre for dispute resolution.

CIArb is being challenged on its flanks on one side by CEDR and in the mediation space by MII. We need to respond to this in the way any business would.

This falls within the strategy we have been evolving to extend our reach into the business community and the professions, and for example to become the preferred supplier of training and CPD in alternative dispute resolution.

The option of relocating the branch office to the Distillery building is also under discussion.

Looking to the future

Fellow members,

I have spent my career working for membership organisations. I understand well the mix of factors that determine why a person will join, remain a member and in some cases leave.

It is rarely a simple financial calculation, although this depends. But at some point the question as to whether, in the very broadest sense it is ‘value for money’ arises.

I offer the following thoughts on the direction ahead I see for the branch.

They fall under three headings.

We need to develop our capacity for the highest level training we can on this island, what we refer to as our faculty. Some progress was made during the year but more is needed.

Next, how we build the brand and the services of CIArb. Can this be done on the basis of our existing governance model.

Or do we examine greater professionalisation of our management and the marketing of  our suite of services to Irish business and the professions

Our strengths lie in a diverse membership of people hugely interested in ADR and who possess enormous expertise in the subject. They have a huge commitment to the brand that is CIArb.

The opportunity presented now as ADR goes ‘mainstream’ is to push CIArb to the forefront of the organisations in the field and it is there for the taking. Indeed, I would say that our ambition in this regard is limited only by a lack of resources which even the most dedicated committee of volunteers will have trouble bridging.

I see no reason why the appointments being made by future Chairmen should not be in the hundreds. Business organisations in the main, but solicitors and others are the key here. Communicating the message that ADR is good for business and that CIArb is a logical partner in delivering those outcomes requires no new science to bring it to fruition.

As we move into partnership in the Dispute Resolution project; a professional business, we need to consider professionalising other aspects of our work including marketing; developing a commercial focus, making a real impact with Irish business and delivering on the value for money I spoke about earlier and which members expect and are entitled to expect.

These then are the questions. Some of the answers are fairly obvious although agreeing and implementing them will require careful thought and may pose some fairly fundamental questions about how the branch is resourced in Ireland within the overall CIArb family.

As Chairman I tried within the limits of an honorary, if onerous role to lead the Institute in the direction of building new partnerships, promoting the message that ADR is good for business and that CIArb is good for ADR.

Regarding our membership of the global brand that is CIArb this is a huge advantage  to us. However, there are aspects of how the relationship with London works that need to be reviewed.

The decision to increase membership subscriptions in the middle of a recession and the manner it was done showed some detachment from reality, to be frank.  We have a new Director-General now Mr Anthony Abrahams to whom I send our best wishes and urge him to join us in ironing out some of these issues.

While our paper membership remains at just under 750, those members are proving very slow to renew this year. Increasing their subscription was hardly a help.

CIArb in Ireland is a well of such potential to current and future members that some of the things I have referred to are vital for the future prosperity of the branch and its members, and more importantly of alternative dispute resolution in Ireland.

In conclusion, I wish to thank all who made my term in office enjoyable; my immediate predecessors in the Chair, and on whose committees I served and learned, the current committee members and sub committee members.

Also to Kate our administrator a big thank you.

It has been a privilege to serve as your Chairman that I will always treasure.

Pat Brady

Chairman

CIArb presentation on Mediation Bill to Oireachtas joint ctte on Justice

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Remarks by CIArb Chairman, Pat Brady

Mr Chairman, Deputies and Senators,

Thank you for inviting us here today.

As you will have seen the CIArb is a worldwide body and the largest of its kind solely dedicated to alternative dispute resolution, (ADR) including here in Ireland.

While we have outlined our comments on the Bill, which in general we welcome and will be happy to answer any questions I thought it might be helpful to the committee to make some general comments on alternative dispute resolution which might provide context and also indicate the opportunity represented by the Mediation Bill.

ADR including mediation has a long tradition, some would say back to Solomon,  the Romans had an arbitration system known as the compromessum, Chaucer refers to a mediator in the Canterbury Tales (appropriately named Prudence) and the first arbitration board in history, some say, was set up in Dublin in 1705, the Ouzel Galley Society.

And surveying the current landscape there is increasing acceptance of the potential of ADR as a means of providing effective, quick and cheap solutions to problems arising in business, in the workplace, and elsewhere.

Just looking briefly at some recent, and some imminent developments.

In 2010 we had a new Arbitration Act. This strengthened the power of the arbitrator, and therefore the arbitration and limited the extent of court intervention and supervision.

The Construction Contracts Bill which had its second reading in the House on May 3rd aims to provide rapid, binding, if interim solutions to disputes arising in the construction sector.

We have transposed on both parts of the island, here in the Republic in 2011 the EU Directive on transnational mediation.

Somewhat outside this process the government is radically overhauling the disputes resolution machinery in relation to employment rights and disputes.

One of our members, Bill Holohan, produced a comprehensive document in relation to ADR in Ireland entitled “ADR in Ireland, 2010 and Beyond”, for the benefit of the Diploma Programme of the Law Society, and we will leave a copy of that with you, which will give you a complete overview.

In the context of EU developments it is also worth noting that by January 2015 two further measures are proposed to give consumers access to alternative dispute resolution ‘vehicles’ as the papers refer to it, in relation to complaints one of these specifically related to on-line purchases. Of course, this in addition to existing statutory protections.

And indeed this is the point. There is a recognition in all these initiatives that traditional legal remedies are insufficiently effective, either because they are too cumbersome or too costly. (The EU estimates that unresolved customer complaints cost 0.4% of EU GDP).

While the Oireachtas Committee must understandably address the detail in the Bill and we will turn to that briefly in a moment, we have concerns that the great potential represented by this movement may fail to realise its potential for the want of public awareness of its availability and potential.

Part of the mission of CIArb is to promote ADR and in meetings with a wide cross section of business, trade union and other players the overwhelming reaction to the thought that effective ADR clauses might be an insurance policy against litigation is incredulity, even among legal practitioners, who ought to know better. This is obviously in the context of sectors where it has not been tradition to use ADR, which is most of them.

In November 2012 we held an event with the World President of CIArb Professor Doug Jones on the topic “ADR in Australia; lessons for Ireland.” The biggest lesson to emerge from this was that in Australia ADR, mediation, arbitration is primarily client driven. Clients tell lawyers they want mediation or other ADR vehicles, not the other way around. We believe that that is the way things should be, and we should move towards educating the public who will inform the lawyers.

The welcome provisions in this bill requiring lawyers to inform clients of the ADR option and mediation in particular are only one half of the picture. Business organisations, consumer groups, citizens advice services, the trade union movement need to be brought up to a point where they clearly and fully understand the potential of this Bill to make their lives easier when disputes arise.

When the Automatic Referral to Mediation Pilot Scheme was introduced at London Central County Court research (by Prof Hazel Genn, 1998*) showed that in approximately 80% of cases one or both parties objected to it.

“Other research shows that people are not as enthusiastic about mediation as the government, the judges and the mediation community think they ought to be’ Paul Randolph, New Law Journal April 2010

I now invite my colleague Bill Holohan to comment further

I am a practising solicitor and I have been for almost 30 years and a Fellow of the Chartered Institute of Arbitrators. However, I appear before you today, so to speak, as a repentant solicitor and arbitrator.

Having spent many years engaging in litigation, and having studied Sun Tzu’s “The Art of War” with a view to becoming effective in legal battles, and having also learned one of the lessons of Machiavelli that one should never leave a wounded prince on the battlefield, I came to the conclusion about five years ago that there had to be a better way.

Padraig Pearse said that education was the murder machine. He was wrong. Litigation and the legal system is the murder machine. I’ve seen people bitterly divided as a result, not just of the issues that drive them to litigation in the first instance, but because of the litigation process itself and I have seen this in the areas of family disputes, commercial disputes, partnerships, franchisors, neighbours, the voluntary sector, etc.

Having had a Pauline conversion, I became an Accredited Mediator five years ago, and a strong advocate of mediation in particular, as the preferred ADR method. I was one of the founders of the www.commercialmediators.ie Group and since being elected to the Committee of the Chartered Institute have worked on mediation issues in particular.

If I can headline one aspect of the Bill, in particular, it would be this.

We need to ensure that clients are fully informed, not only about the ADR option and mediation in particular, but more particularly, how effective it can be, and the benefits of it in terms of savings on legal costs, time, energy, and emotion that could be better directed elsewhere.

Consequently, it would not be enough simply to have a provision in the bill requiring that a solicitor certify that they had “discussed with” or “informed” the client about the ADR option, as is the situation in family law, legislation, for example.

The client should be required to swear an affidavit, confirming that not only have they considered the ADR option, but they have discounted/disregarded it for specified reasons, and that should ultimately be taken into account, in the event of the matter proceeding to litigation. You cannot force the horses to drink, but there should be ample opportunity for the horses to linger by the lakeside and appreciate the opportunity.

(Anne-Marie Blayney then addressed some of the specific points on the Bill in our submission as outlined in previous blog)

*“The Central London County Court – Pilot Mediation Scheme Evaluation Report”, Lord Chancellor’s Department Research Series No. 5/98

LRC announces new ‘Early Resolution’ (mediation) pilot scheme

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(This is the statement from the LRC, slightly edited)

The Labour Relations Commission is offering a new pilot Early Resolution Service to employers and employees to assist them in resolving issues in dispute without the need for a formal adjudication or inspection.   This is a voluntary, conciliation/mediation type service which will be provided by Case Resolution Officers.

Currently all claims/referrals to the Rights Commissioner Service, to the EAT, or to NERA, are centrally logged in a Central Portal Unit. It is the intention during the pilot phase of ERS to offer an early intervention in a representative selection of these claims/referrals. When the pilot scheme gets underway cases will be forwarded to the ERS and cases considered suitable for early intervention will be allocated to a Case Resolution Officer. Where the parties decline to use the service or where the attempt at settlement is unsuccessful within an agreed period of time, the claim/referral will be forwarded to the relevant service to arrange a formal hearing or inspection.

The Case Resolution Officer will:

  • Contact the claimant  in the first instance, explain the process leading, hopefully, to agreement by both sides to become involved.
  • Help establish the facts at issue and discuss the options open.
  • Help each party to understand how the other side views the case and explore with them how it might be resolved without a formal hearing/inspection.
  • Explore the issues involved and try to help settle differences in a way that is acceptable to all parties concerned but will not impose solutions.
  • Discuss any proposals that either side has for a settlement.

The Case Resolution officer will not:

  • Represent either the employer or the employee, take sides or help either side prepare their case.
  • Give legal advice.
  • Give an explicit opinion on the merits of a claim or advise on tactics, or how to win at a formal hearing.
  • Make a judgement on the case, or the likely outcome of a formal hearing/inspection.
  • Advise on whether or not to accept any proposals for settlement.
  • Pressurise people to settle or abandon a case.

Key Features of the service

The service is confidential.

  • Information will not be passed to other parties without your agreement.
  • What you say during discussions with the Case Resolution Officer cannot be used or referenced as evidence at a hearing.

The service is independent.

  • It is entirely separate from the Rights Commissioner Service, the EAT and NERA and if a settlement is not reached, a claim/referral can still be pursued.
  • The service does not delay the EAT, Rights Commissioner or Inspection processes.

The service is free.

  • Saves time and money.  Preparing or responding to a formal hearing can take a great deal of time, and could have associated representational costs.
  • Minimises stress.  Almost everyone finds the process of pursuing or defending a case difficult, and appearing at a formal hearing can be a stressful experience.
  • Quick Solution.  Cases can be dealt with in a few telephone calls or in exceptional cases via tripartite meetings with agreed settlements implemented very soon afterwards.
  • Win-Win Outcome.  In a formal hearing situation one party usually loses and even the ‘winner’ will not always get what he or she wants from the process. The singular advantage of the ERS is that it can achieve a “win-win” situation if the parties wish to reach a settlement.
  • Control.  Settlements are reached by agreement on terms that suit the parties.  Innovative and creative solutions are possible which will allow the parties to reach a settlement that meets their particular needs.
  • Avoids Formality.  Although any of  EAT or Rights Commissioner hearing processes are somewhat less ‘formal ’ and legalistic than most court processes they contain standard procedures with which most people are unfamiliar and uncomfortable.
FAQ’s
  • What happens if I settle the claim through the ERS?
  • If you settle the claim through the ERS, the terms of the agreement will be recorded on an agreed form to be signed by both sides as proof of the agreement.
  • What happens if something is agreed but one party reneges on agreement terms?
  • Where parties do reach a settlement via the ERS process, they will be deemed to be ethically bound by participation in the process. However, where agreements are not honoured within a specific timeframe, the case/referral may be re-introduced to the relevant adjudicative hearing or inspection processes without delay.
  • How long does the early resolution process take?
  • It is envisaged that where the parties agree to become involved the attempt at early resolution will be completed over a maximum period of 6 weeks. The process is likely to involve a number of relatively short telephone or e-mail interventions with both sides.
  • Will participating in the Early Resolution Process affect the formal adjudicative /inspection processes if the outcome is unsuccessful?
  • No.  If the early resolution intervention is not successful cases can be slotted back in to the relevant adjudicative or inspection process without any undue time delays.
  • What if I have a representative?
  • If you appoint a representative to act for you the Case Resolution Officer will engage through that representative.  It is important to ensure that your representative is fully aware of your requirements.

If you have a dispute and you need advice or representation contact pat.brady@workplacesolutions.ie to discuss your needs.

It never happens to….people like you!

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As a member of my local Chamber of Commerce (South Dublin) I attend a B2B group that meets every two weeks as a business network; something I very much enjoy and, as a sole operator get a good deal of business and psychological support from it.

Each one of us does an ‘elevator pitch’ at every meeting; a 60 second presentation on what we do, our business ambitions etc.

We kind of all know what each of us does now, and every week someone, indeed more than one injects a bit of a surprise element.

Even I’m getting a bit tired of listening to my own presentation, so I figured my colleagues too would be grateful for a bit of a change.

One of our esteemed members Breffni May, a financial advisor has coined a catch phrase that has acquired the cachet of some of the great ones (because you’re worth it!). When asked about who he would like to meet for referrals; he turns to us all and says he wants to meet..… ‘people, just like you!

So, on the day I tried a different tack, taking Breffni’s catchprase, putting it beside the tongue in my cheek and going something like this.

‘I know its pointless talking to this group about the hazard that they might be exposed to in an employment rights case, because I know it could never happen to ‘people like you’.

 The Dublin hotelier who last week got hit for €315,000 plus legal costs for sacking a pregnant employee….sure that could never happen to you or anyone you know!

Or the UK based leisure complex named after a former tennis player that paid out just under €300,000 for unfairly dismissing a manager…how could you or anyone you know get caught in a mess like that.

Because we know, it will never happen to ‘people, just like you’!

These things always happen to someone else.

And of course people like you, or people you know couldn’t possibly be among the 15,000 or so cases heard by the Rights Commissioner Service or the 4,000 other cases heard by the EAT where admittedly you are more likely to get hit with a decision (should you lose) in the range €5,000 to €50,000.

So, that’s all ok then! No need to worry because that would never happen to people like you. Like the Lottery says, it could be you, but you know it never will!

 So just tell your friends there’s a madman raving in the Chamber meetings about things that could never happen to them, or people like them and tell them not to worry.

But if your friends ARE the worrying type….

         And even though we know it will NEVER happen to them…

                   Here’s a useful contact……….just in case! 

                           pat.brady@workplacesolutions.ie

Employment law and HR advice. Because it never happens until it happens, do it now!

And for really sound financial advice for ‘PEOPLE…JUST LIKE YOU’ and your future contact my good friend Breffni May; breffnimay@eircom.net