Interested in qualifying as an accredited mediator?

The Chartered Institute of Arbitrators offers training to those wishing to become accredited commercial mediators and offers the option of membership of the CIArb.

CIArb is the largest dispute resolution body in the world and the Irish branch has some 700 members.

The course is run by the Institute’s approved trainers Facilit8 led by acclaimed mediator Amanda Bucklow and starts on March 5th running for 6 days (one rest day) with the assessment taking place over the weekend of March 24th.

The course is independently assessed, i.e. not by those delivering the training; a distinctly important consideration,

On our last course one of the participants was Mr Justice Paul Gilligan, judge of the High Court, (I should say successful participants as the pic confirms. Judge Gilligan receiving his certificate form International President Doug Jones, watched by Irish branch Chairman…yours truly!)

if you are interested contact the Dublin office of CIArb at or

Successful completion of the course opens the pathway to membership of CIArb.

“it’s a great course! It’ll change how you look at the world”

CIArb submission to Minister Hayes on Construction Contracts Bill

This is the text of a letter sent to Brian Hayes TD, Minister of State for Public Service Reform & the OPW about the Construction Contracts Bill 2010.

Dear Minister Hayes,

We refer to the Construction Contracts Bill 2010 (CCB), the associated Regulatory Impact Analysis (RIA) and the earlier consultation meeting with your offices on 28th June 2011. We have reviewed both documents and wish to contribute further to the discussion regarding this importance piece of legislation.

The Chartered Institute of Arbitrators is a global professional body, with a membership drawn from the broadest range of primary professions, including law, engineering, architecture, surveying, and other branches of the construction industry. We operate according to a governing charter, which, for the purposes of this discussion, includes two principle objectives paraphrased as follows:

q  The promotion of Private Dispute Resolution, in all its varying forms, including mediation, adjudication and arbitration; and

q  The training and encouragement of suitable individuals to become qualified and proficient dispute resolution practitioners.

We also currently provide training in adjudication, in other jurisdictions with similar legislation, and would intend to provide similar tailored courses in this jurisdiction, in the event that the legislation comes into force.

As a consequence of the above we are naturally supportive of adjudication as a Private Dispute Resolution process, and believe that it can be successful in achieving the purpose of the bill, which is described as “…. to help address the issue of non-payment to construction sector contractors, subcontractors and sub-subcontractors  who have completed work on construction projects…”.

We have reviewed both the CCB and the RIA with great interest and we make the following comments, which we hope will assist the final detailing of the legislation.

 Status of Adjudication within the Irish Legal System.

The adjudication process is not intended to produce a final decision, in the manner of an arbitration, for example. Consequently its intended status within the overall dispute resolution framework should be clearly stated in the explanatory memorandum. As an example we consider it unlikely that it is intended that Consumers in small cases would be obliged to engage in an adjudication process, and be denied access to the Small Claims Court. Similarly it may be worthwhile to consider whether very large disputes should be obliged to use the adjudication process, in preference to other options, such as the case management skills of the Commercial Court or the alternative process of arbitration, which while slower than adjudication has the benefit of finality.

A clear statement as to where adjudication is intended to sit within the available legal processes would, in our opinion, greatly facilitate the drafting of the legislation and place the threshold values identified in Section 2 of the Bill in a clearer context.

We are also strongly of the view that any threshold values should be expressed within the terms of the value of the dispute, rather than the value of the contract, in a manner similar to the courts hierarchy.

  1. Adjudicator’s Decision to be Non-Binding

The CCB proposes that the adjudicator’s decision be non-binding, in the event that the decision is referred to arbitration or other legal proceedings. The RIA considers this point further and notes that “as the legislation is currently drafted it favours the payer”.

We are of the view that if the adjudicator’s decision is not binding and payment of an award is not compulsory, then this will significantly undermine the primary purpose of the bill. A mechanism for the swift resolution of payment disputes, must result in payment following the adjudicator’s decision, if it is to be effective.

  1. Public Private Partnership Contracts

Section 2.3 of the CCB proposes to exclude PPP contracts from the legislation. We are not clear why such contracts would be excluded as a group and believe that this should be reconsidered.

  1. Status of Contracts with Public Bodies

The RIA, when analysing the non-binding nature of the adjudicator’s decision under the CCB, suggests that one alternative might be “to have a two pillared approach with differing arrangements for public and private contracts”. The RIA also notes that in this event the conciliation process in the Public Works Contracts, which is described as being similar to adjudication, would apply instead.

The RIA provides some background to this philosophy, noting that there is a need to strike a balance between the resolution of payment disputes and the safeguarding of public monies.

We have a number of significant concerns regarding this potential strategy.

Firstly this suggests a fundamental lack of belief in the adjudication process, and that there is a significant probability that the payer will be wrongly obliged to pay funds, which a later process will overturn.

We believe that this concern is misplaced. An adjudicator will only award money, where the payer has obtained the benefit of the payees productivity, and has not honoured a contractual obligation. It is probable that a later arbitration or legal process will overturn some adjudication decisions. However it should not be expected that this would be the norm, or even a regular occurrence.

We believe that if the adjudication process is to be introduced into Irish law, then it should be trusted to deliver the correct decision.

Secondly the public works conciliation process, referred to in the RIA, where payment of a conciliator’s award is dependent upon the production of a bond, does not apply to all Public Bodies construction contracts. As an example consultancy contracts, smaller works contracts and PPP contracts do not currently have this conciliation procedure. Such contracts could thus be inadvertently excluded from any adjudication or conciliation process. If an alternative process is to be proposed, then it should be incorporated into the legislation, otherwise there will inevitably be contracts formed with public bodies, which having differing or no provision for an adjudication process.

Thirdly we are strongly of the view that there should be consistency throughout a chain of contracts. Consequently if a different procedure is to apply to “Public Works Contracts”, then that procedure should also apply to all associated sub-contracts. Failure to legislate for such a consistent approach could quite easily have unintended and unforeseen consequences, which would undermine the effectiveness of the legislation. As an example one possibility, as the legislation is currently drafted, might be to shift the current cash flow burden from sub-contractors to main contractors. Such a scenario could potentially favour larger  and better resourced contractors, when competing for public works contracts, at the expense of small and medium enterprises (SME’s), which would be contrary to current Irish and EU policy.

In addition the need for consistency throughout the chain of contracts further reinforces our view that any alternative process should be included within the legislation.

Finally, having considered the issue in its totality, particularly:

q     the need to have a single process covering a complete chain of contracts, from the contract with the primary client, down to the smallest oral sub-contracts;

q     the desirability for a single adjudication process within the law, in the absence of any compelling reason for treating different types of contracting parties differently; and

q     the certain impracticalities that would arise in the resolution of sub-contract disputes, in the event that adjudication awards were to be backed up by a bond.

We are of the view that the only practicable and sustainable solution is to have a common procedure, which would apply to all contracts, whether with Public Bodies or not.

  1. Definition of Irish Construction Contracts

Section 2(5)(a) states that the legislation will apply to construction contracts, even if Irish law does not otherwise apply to the contract. However it is not clear in the legislation as to how an Irish Construction Contract is to be defined, whether by the identity of the parties, the locations of the businesses, or the location of the construction works.

The legislation, as currently drafted, would oblige the courts to establish this definition, for example whether an Irish Sub-Contractor working for an Irish Main Contractor on a French construction site, would be subject to this act, or not.

We believe that this issue should be clarified within the legislation.

  1. Payment Conditional on an Act by a Third Party

Section 3(5) does not appear to be compatible with many model contract forms used in the construction industry, whereby payment is conditional on the amount being certified by an engineer, architect, project manager or similar.

  1. Entitlement to Suspend

Section 5(3)(b) of the legislation limits the entitlement of a party, who has not been paid, to suspend work for a maximum period of fourteen days, We are not clear as to why the entitlement to suspend should be limited in this way. However there may be merit in including a requirement that a party suspending the work, is obliged to refer the dispute to adjudication at the same time.

  1. Data Collection & Review

We would support the proposal, in Section 6 of the RIA, that provision should be made for the collection, analysis and publication of data. Although we would recommend that any data should be collected in an anonymised and summarised form.

  1. Inclusion of Supplies

The RIA notes that some of the consultees requested that adjudication also be extended to include contracts for the supply of materials, particularly where those materials are either bespoke supplies, or alternatively have been incorporated into the works.

We do not see any reason why such contracts could not be included within the scope of the legislation.

Finally we would like to thank you for the opportunity to contribute to the development of this welcome piece of legislation and trust that you will find our submission of interest. We would also seek to be involved in the preparation of the Code of Practice for Adjudicators proposed under Section 9, in due course.

We are available to discuss these matters in greater detail if desired,

Yours sincerely,

Pat Brady,  


CIArb Irish Branch

Dispute Resolution in Australia; CIArb President paper

This is an extract from the paper given by Professor Doug Jones, CIArb World President in Dublin on November 12th. If you would like a copy of the paper please contact me at

CIArb President Doug Jones with Mr Justice Paul Gilligan at the event

Costs of formal dispute resolution

Dispute resolution processes used for commercial disputes reflect the requirement of quick, inexpensive processes which allow parties to maintain commercial goodwill.[1] Mediation and other ADR techniques are generally accepted as a cheaper alternative, and on that basis there has been an increase in these methods to resolve disputes. Conversely, long and arduous litigations can be expensive for both parties.

Recently in Australia, there has been much talk about the unreasonable amount of money spent on some commercial disputes. Most notably, the Seven Network Limited v News Limited[2] which was described by Sackville J (the presiding judge) as a ‘mega-litigation’. Sackville J went on to state:

An invariable characteristic of mega-litigation is that it imposes a very large burden, not only on the parties, but on the court system and, through that system, the community.[3]

His honour elucidated that he himself was surprised at the excessive amounts of money spent on this case. He estimated that ‘the parties have spent in the order of $200 million on legal costs in connection with these proceedings’[4] and he questioned whether the amount of money spent was justified given the amount of damages claimed in the case. For example, Seven claimed between $194.8 and $212.3 million when its final submissions were made.[5] Sackville J concluded that ‘[t]he maximum amount at stake in this litigation has not been very much more than the total legal costs incurred to date’.[6]

His honour quite forthrightly labelled the C7 Case litigation ‘extraordinarily wasteful’ [7] and bordering on the ‘scandalous’.[8]

The C7 Case is but one example, albeit an extreme one, of how litigation can be costly in commercial disputes. Logically, the legal costs for long, drawn out disputes will accumulate. Bearing this in mind, many companies now opt for ADR clauses within their commercial contracts. ADR techniques, such as mediation, are likely to be far less ‘wasteful’ whilst achieving similar results.

1.2                National accreditation scheme

Since 2001,[9] there has been much discussion about the need for a national accreditation scheme for mediation in Australia. NADRAC has been instrumental in lobbying for a national system for accrediting mediators.

The National Mediator Accreditation System (NMAS) commenced operation on 1 January 2008. It is an industry based scheme which relies on voluntary compliance by mediator organisations that agree to accredit mediators in accordance with the requisite standards. These organisations will be referred to as Recognised Mediator Accreditation Bodies (RMABs).[10]

In its discussion paper released in 2004, Who Says You’re A Mediator?, NADRAC defined accreditation as:

[T]he process of formal and public recognition and verification that an individual, (or organisation or program) meets, and continues to meet, defined criteria. An accrediting body or person is responsible for the validation of an assessment process or processes, for verifying the ongoing compliance with the criteria set through monitoring and review, and for providing processes for the removal of accreditation where criteria are no longer met.[11]

NADRAC suggests that there is a need to move towards a national scheme because it would promote the following objectives:[12]

  • enhance the quality and ethics of mediation practice;
  • protect consumers of mediation services;
  • build consumers confidence in mediation services;, and
  • build the capacity and coherence of the mediation field.

Bearing the importance of these factors in mind, a consensus was reached in 2006 as to the basic characteristics of the National Mediator Accreditation Scheme. This scheme is intended to develop a framework and documentation to guide the implementation of the National Mediation Accreditation System. Proposals were discussed and accepted at the National Mediation Conference in May 2006.

Nation-wide accreditation standards have been developed in order to enhance the quality of national mediation services in Australia. They also aim to facilitate consumer education and build consumer confidence in ADR services, improve the credibility of ADR and help build the capacity and coherence of the ADR field.

With consistent standards across Australia, mediation and other ADR tools are being used increasingly and on a larger scale. Therefore, it can be reasonably inferred that the successful implementation of this project over the coming years will cause a continued increase in the use of mediation.

2.                  Conclusion

Whilst businesses, the courts, the legislature and peak professional bodies continue to extol the virtues of mediation in Australia, it appears that it will continue to grow and develop as an alternative method of dispute resolution. The benefits of mediation over litigation and other ADR tools are becoming increasingly apparent and accordingly many firms are opting to draft mediation clauses within their commercial contracts. Furthermore, the court system is utilising the benefits of mediation to alleviate the pressure from their lack of resources.

The next step in Australia is to continue to improve this National Accreditation System in order to promote consistency within mediation across the country. Pending the success of this national system, the outlook of mediation in Australia appears positive. The preference of mediation as the ‘best choice’ to resolve disputes has increased over past decades and it appears that it will continue to do so.

[1] Boulle, above n 12, 214–215.

[2] [2007] FCA 1062 (C7 case).

[3] Ibid para 2 (Sackville J).

[4] Ibid para 8 (Sackville J).

[5] Ibid para 9 (Sackville J).

[6] Ibid.

[7] Ibid para 10 (Sackville J).

[8] Ibid.

[9] See, eg, National Alternative Dispute Resolution Advisory Council, ‘A Framework for ADR Standards’ (2001) available at <> at 4 November 2011.

[10] National Alternative Dispute Resolution Advisory Council, National Mediation Accreditation System <>at 4 November 2011.

[11] National Alternative Dispute Resolution Advisory Council, ‘Who Says You’re a Mediator? Towards a National System for Accrediting Mediators’ (March 2004), 3.

[12] Ibid.

International Arbitration Conference; Opening remarks

Introductory remarks by Pat Brady, Chair of the Irish Branch at Inaugural conference of CIArb Young Members group, at the Distillery Building, Dublin, November 11th, 2011.

Your Honour Judge Kelly, Ladies and gentlemen

It’s a very great privilege and a pleasure to welcome all our visitors to Dublin for the first ever international conference of young members of the Chartered Institute of Arbitrators, and of course to welcome members of the Institute of all ages, and other participants in todays event.

This meeting is therefore a historic day for the Chartered Institute of Arbitrators.

Today also sees the inauguration ceremony for our ninth President and Head of State.

So the theme of ‘new beginnings’ might be a good one as we start out on our conference.

Of course this is a special day in the history of conflict resolution also; the eleventh day of the eleventh month commemorating the end of one of the bloodiest battles in modern history, acquiring the added poignancy this year if being 11.11.11.

But before addressing that theme this gathering of CIArb members representing as we do over 20 jurisdictions underpins some of the traditions of our Institute as a global body; a global community of practitioners of alternative dispute resolution shortly approaching its 100th birthday!

We can go further back in this City to one of the oldest arbitration bodies in the world which was formed in this city in 1705; ‘The Ouzel Galley Society’.

We are delighted to have the World President, Professor Doug Jones here as an honoured guest and participant.

Indeed Professor Jones is going to have a very busy couple of days and we look forward to drawing on his expertise and experience as we do with all our guest speakers and participants. In particular I might mention that tomorrow morning Doug will make a presentation on Mediation in Australia: What Can Ireland Learn from Australia’s Promotion of Mediation?” at the Radisson Hotel, not far from here.

The organising committee has worked hard to pull together an impressive programme and I congratulate them on the work they have done. I am confident you will see the outcome of their efforts as the day rolls on and I’m sure you will agree that it has been well rewarded

As we gather as members of the Chartered Institute of Arbitrators, there is a question I wish to pose. Indeed non-members of the Institute might be just as interested in the answer to the question.

What makes the CIArb different?

In some ways an event such as this helps answer the question as it illuminates one of the great strengths of the CIArb. We are a worldwide body with a presence in over 100 countries; an organisation of 12,000 members, 750 of those here in Ireland.

This is represented in one of the themes of today’s conference;  ‘International Best Practice: What can arbitral seats learn from one another?

Our standards are tested against the highest of benchmarks and the best standards of the international legal, business and dispute resolution community.

I had reason to consult the Institute core document known as ’The Guidance ‘ this week. Anyone who doubts the rigorous requirements we place on our members should have a look at its 92 pages of standards. This provides the necessary reassurance to those who rely on our services that a third party neutral appointed by us has achieved a standard of training and subscribes to a code of professional and ethical conduct in which parties can place their trust.

All of you attending today, but especially the members of the Young Members Group are showing by your presence your determination to pursue the highest standards of your profession as arbitrators, adjudicators or other third party neutrals.

So I hope that this conference is the first of the new beginnings and that another branch of the Institute will want to host number two in the series.

Another beginning for us in Ireland, and while not the subject of this conference I might digress briefly to mention that our government will next year introduce legislation to regulate the practise of mediation for the first time.

This is on foot of the report of the Law Reform Commission last year.

The Irish Branch welcomes this development but it will raise many issues not least of which will be how the standard will be set for the status of ‘Accredited Mediator’.

This is important.

In its report on mediation the Law Reform Commission stressed that it was important that the mediation option should not be seen as ‘second class justice’.

As many observers have noted mediation is part of the justice system not apart from it.

Clearly those who practise as mediators, just as with arbitrators should be expected to reach a standard such as that which this institute lays down and no less, if this public confidence is to be first attained and then retained.

All organisations involved in mediation need to remember that the primary object of the exercise is to serve the citizen in need of mediation services and we would all do well to reflect on how best we might contribute to that objective in the manner we promote our services.

Turning to other beginnings what else is new in the world of ADR?

It appears we are almost definitely going to see the introduction of a form of adjudication into the construction sector in Ireland, although what form exactly that will take remains to be seen.

Some of the existing proposals have been the subject of serious criticism by professionals in the construction professions and most recently by one of my predecessors of some years ago as Chairman of the Irish Branch and the current Chair of the Engineers Ireland dispute resolution Panel Ciaran Fahy.

In a paper delivered this week and not yet published Mr Fahy is strongly critical of the proposals in relation to costs, the ambitious nature of timeframes and other matters.

And of course this development in an industry where arbitration has traditionally been a vital tool for dispute resolution raises issues about the future of arbitration itself in that sector. Experience in the United Kingdom would indicate that such fears are not without foundation.

Do we need some new beginnings in arbitration itself that will make it more effective, more efficient and more economical? There are many existing models to look at but recessionary times have forced quite a lot of re-thinking about models that were discarded in the past. Perhaps we need to look at some of ours.

But while we can look backwards to 1705 for arbitration in Ireland it is much more important that we remain focused on the future and with colleagues from across the gamut of ADR practitioners we strongly support the campaign by Arbitration Ireland to see Dublin develop as a seat for international arbitration.

We have many attractions to potential parties.

Ireland has just last year modernised its arbitration law and has now embraced the Uncitral model, about which you will hear more detail later as one of the themes of the conference is ‘Evolving practice under the New York Convention’.  We have other advantages also as an English speaking country with an increasingly competitive cost base, good communications and travel links and common law-experienced lawyers and neutrals.

We hope that many of you will consider Ireland as a future venue for international arbitration, although of course we will be delighted to see you for any reason!

Before concluding I want to thank all of you who made this day possible; a hard working committee of the young members group under its Chairman Goncalo Malheiro from Portugal, the team in Bloomsbury Square and especially Sue McLaughlin, all of our distinguished speakers, our sponsors, Beauchamps, the CPLA, Lewis & Barnes, The Bar Council of Ireland and BLG (and later Maples and Calder.

On the Irish Branch Committee I want to thank Dermot Durack who led for the committee and the indefatigable Arran Dowling Hussey, both of whom did a prodigious amount of work.

Ladies and Gentlemen, we are very honoured to have as our first guest Mr Justice Peter Kelly.

Judge Kelly is the judge assigned under the Irish Arbitration Act 2010 and who deals with cases arising under the act.

However he is a very powerful voice for alternative dispute resolution, both by virtue of his eminent position as a member of the judiciary, but if anything even more so by virtue of the persuasive power of his advocacy of its merits and its potential contribution to better dispute resolution.

Its my pleasure to introduce Mr Justice Peter Kelly, judge of the High Court

The EU Cross Border Mediation Directive

On September 29th, the Chartered Institute of Arbitrators, which has a presence on both sides of the border, held a conference in a Belfast hotel to look at commercial disputes from a variety of different contexts but with one common theme; resolving the dispute without the need to go to court.

The conference was opened by the Chairman of the Chartered Institute of Arbitrators (Irish Branch ) Pat Brady who introduced the keynote speaker; the Minister for Justice in Northern Ireland, David Ford MLA who re-iterated his support for alternative dispute resolution and highlighted the fact that the issue was given prominence in the recently published ‘Review of access to justice in Northern Ireland’.

As cross-border disputes were the underlying theme of the conference the issue of how the cross border mediation Directive has been transposed on both sides of the border was something that legal expert Nicola White did with great skill and dexterity. (Ms White was the legal expert to the Law Reform Commission report on mediation).

In these straitened financial times the issue of employment law is never far from the headlines especially if it involves a dispute and Ciara Fulton from Tughan Solicitors walked the audience through the intricacies of the differences north and south regarding the machinery of employment dispute resolution.

A subject that is perhaps less prominent in everyday life is that of disputes in a sporting context and Dr Jack Anderson from Queens university spoke passionately and authoritatively as he addressed the use of alternative dispute resolution in a sports context including everything from rugby to boxing.

From sport to something completely different as Ed Quigg from Quigg Golden enthralled the conference with his sharp analysis of the ADR landscape in a construction law context on both sides of the border with a view to recent and future legislative developments.

The conference was then delighted to hear from the Honourable Justice Gillen, judge of the N. Ireland High Court who has been a long time advocate of forms of alternative dispute resolution, but especially mediation. Justice Gillen spoke of how, as a judge, he could see the merits of properly trained and accredited mediators in the context of both family and commercial disputes and he talked of his hopes to see such systems become integral to the way disputes are resolved.

The conference was closed by the President of the Law Society for Northern Ireland, Mr Brian Speers who has been perhaps locally the most well known promoter and long time advocate of the use of alternative dispute resolution.

The President spoke candidly and authoritatively on what needed to be done to ensure ADR in Northern Ireland became something more akin to the rule than the exception. As serendipity would have it the President was unexpectedly joined by his Australian counterpart, Mr Alex Ward who acted as an impromptu closer of the conference with antipodian anecdotes regarding ADR “down under”.

The conference audience was left in little doubt that ADR has reached critical mass as a concept which stands outside the system and now is the time for it to come in from the cold. The Irish Branch and NI Chapter of the Chartered Institute of Arbitrators and the audience considered the conference a great success and perhaps the building block for future or indeed annual cross-border conferences.

(Thanks to Mark McAllister, Convenor, N. Ireland Chapter of  CIArb irish Branch who prepared this report)

Opening remarks by Chairman of CIArb Ireland at Belfast conference on ADR

First a word of introduction to CIArb here in Ireland and worldwide.

 We are a global community with 30 regional branches and chapters across the world, offering a global network of ADR professionals. 

 A Royal charter was initially granted in 1979;this is  reserved for professional institutions and charities working in the public interest, Significant changes to the Institute’s governing structure from new Charter and Bye-laws granted in 2005. 


  • Promoting access to non-court dispute resolution
  • Education, training & professional qualifications
  • Standards & guidelines, approval & accreditation of practitioners,
  • Academic & professional resources

Promotion of research, new professional policy and practices concerning dispute resolution as a ‘Learned Society’; working closely with academic institutions and other professional bodies across the world.

 What has brought us here today?

More important at the end of what will hopefully be an enjoyable and productive event will be where do we go from here to deepen the understanding and practise of ADR in business and commercial life in general?

CIArb Ireland has embarked on a general campaign notably with the business organisations to promote the advantages of ADR as a cheaper and more amicable way of resolving disputes in commercial and business life.

We are making progress and I want to acknowledge the support we have received for this event from IBEC and the CBI through its joint council, and we intend to develop this dialogue to bring the message that ADR is good for business to every moving part of the economy.

We are currently engaged in the early stages of a campaign with Chambers Ireland in partnership with the Law Society to bring these messages to businesses at a local level.

This is the age of ADR. What has first of all brought us here is to promote and assist a discussion on ADR. In that sense the most immediate trigger was the imminent and now implemented transposition of the EU Directive on Mediation into law in both jurisdictions on the island.

Many more businesses now trade on an all island basis; part of the peace dividend. One of the lubricants of successful business relationships is effective dispute resolution machinery. This is especially the case where problems need to be resolved but business relationships need to go on.

Overarching that specific measure is the general development of ADR as a dispute resolution mechanism, and mediation in particular.

I sometimes wish we had a new word to describe this process. Mediation is a word in fairly common usage and this may lead to an element of complacency about the imminent changes.

It is very important that this is not seen as some ‘flash in the pan’ new fad and that it is genuinely embraced in our commercial transactions, in the workplace and at the level of interpersonal disputes.

Solomon’s ultimatum in the famous bible story to the families in dispute is an early example of skills mediators are taught to practice known as ‘reality checking’!

The editor, until recently of our Journal ‘The International Journal of Arbitration, Mediation and Dispute Resolution;  Professor Derek Roebuck is an expert on the history of ADR and the author of such books as Early English Arbitration, Ancient Greek Arbitration and… ‘The Charitable Arbitrator; How to mediate & Arbitrate in Louis XIV’s France’.

This gives a flavour of the pedigree of alternative dispute resolution.

In his book ‘Roman Arbitration’ Professor Roebuck describes the Compromessum; an early form of arbitration agreement but whose connection to the modern word compromise brings us along the route to the modern core of mediation without any great need for Latin scholarship.

One of the strongest advocates of ADR and mediation has been the judiciary, both on the bench and off it.

It was notable when the report of the Law Reform Commission was published last October on  Mediation and Conciliation  that it was launched by the Chief Justice Mr John Murray thereby conferring on it very powerful judicial approbation indeed.

This report has found further approbation in the Review on Access to Justice in N. Ireland where in the section on ADR it says (p60)

At the outset we wish to refer.. to the Irish Law Reform Commission report, “Alternative Dispute Resolution: Mediation and Conciliation”, published in November 2010 and which we regard as an authoritative work on ADR with many proposals and ideas that are potentially applicable to this jurisdiction23.

I am sure Mr Justice Gillen will add to these encouraging sentiments.

On the bench we now have a line of authority in the English courts which has reversed the traditional rules on costs. A number of decisions including Halsey v Milton Keynes trust have said that a party which refuses to mediate may, even if they succeed at litigation get an adverse finding on costs.

The views of Lord Justice Dyson, author of that judgement may be read in the current issue of the Institute Journal Arbitration; there he summarises the three propositions in Halsey as

  • Mediation is important and should be used in many cases but it is not a universal panacea.
  • Parties should not be compelled to mediate if they are truly unwilling, BUT
  • Adverse costs orders are an appropriate means of encouraging parties to use mediation

There has been a recent case reported this month (September 6 2011)in which the English High Court commented on mediation in Samuel Smith Old Brewery (Tadcaster) v Philip Lee (trading as “Cropton Brewery”) [2011] EWHC 1879 (CH)

In the introductory paragraph of the judgment, Arnold J said that the dispute was one which ought to have been capable of settlement out of court a long time ago. Instead, it had grown into a case the costs of which were out of all proportion to what was at stake. “One explanation for this is Yorkshire pride; but I fear that the English legal system bears a measure of responsibility as well.”

In a postscript to the judgment, the judge said that he considered that the case should have been referred to mediation at an early stage. “The legal process appears to have caused the parties to become entrenched in their positions rather than seeking common ground. I suspect that the costs will themselves quickly have become an obstacle to settlement…. in future disputes of this nature the possibility of mediation should be explored as soon as is practicable.

The Irish Govt has made commitments to enact the bill which accompanied the LRC report in and it has now been announced that a bill will be published in 2012.

All of this has been done in the context of reducing professional costs to business but with the additional advantage that alternative dispute resolution, and mediation in particular hold many advantages over traditional methods of dispute resolution such as litigation.

I might add in passing that the draft bill will cover employment related disputes; a mysterious omission from the 2010 Arbitration Act.

The N. Ireland report on access to justice lists the advantages of such alternatives in addition to costs as retaining party control, its voluntary nature, flexibility, an agreed outcome and it is less stressful than a court appearance. So there are financial, social and psychological advantages to mediation

Frankly, there may be some way to go in getting the message across to business that there is a better way to avoid and resolve disputes, and a cheaper one to boot although the recent publication by the Ombudsman here on alternatives to Court will help.  One of our speakers today had a hand in that initiative, Dr Jack Anderson.

So the ADR community will have an important role in promoting the message that there is a better way to avoid and resolve disputes, and this conference is very much part of that process.

A word on the training and accreditation of mediators.

The LRC report noted the view that users of mediation had a ‘right to expect a competent service’ and not one tainted with the ‘second class’ justice criticism and went on to warn of the dangers of the ‘enthusiastic amateur’ as mediator.

CIArb Ireland has over 700 trained and accredited third party neutrals; arbitrators, mediators, adjudicators and others whose services can be made available through the independent nomination process we operate.

However we support its conclusion that a system (it proposes a non statutory one under the auspices of the Dept of Justice) should be developed under which the accreditation of service providers, and of individual practitioners could be structured (while making special comments about family practitioners).

We are very proud of the standard of training offered by the Chartered Institute, and while other providers offer a similar standard not all do.

Submission (II) on Employment Rights reform


Please see previous blog

Maintaining good employment relations and resolving workplace conflict

(These are our answers to a set of questions posed by the DEJI as part of the consultation process) 

1.1 How do you think employers and employees can best be supported in resolving disputes at workplace level?

Training; too many HR professionals engage in dispute management by procedures manual. There needs to be a greater awareness of dispute resolution techniques

1.2 Can the provision of timely, up-to-date factual information help to facilitate early resolution of grievances/ claims and stem the flow of formal cases being submitted?

No, not on its own. In fact it may have the opposite effect. Addressing the litigious mindset  and the grievance industry requires a significant change in the approach to workplace dispute management.

1.3 When and how should interventions be available from the State?

As at 1.1 the ideal place to resolve disputes is where they arise. However the provision of information especially on mediation of other ADR options  will contribute to the reduction of delays

1.4 How do you think access by employers and employees to a just, fair and efficient adjudication process can be ensured?

By first making the system itself intelligible and then making it accessible (simpler forms.)

Integrated structure 

2.1 Do you agree that the integrated two-tier model should be adopted as guiding principle?


2.2 Do you agree that “differentiation” of processing channels should be minimised to optimise the benefits of the proposed reform and to avoid re-introduction of institutional and procedural rigidities?

Yes, and this does not require separate channels as at present. Cases could be assigned to divisions  of a ‘new’ Labour Court (my preferred term) on the basis of known expertise. (One could have a redundancy/unfair dismissal division, general appeals, industrial relations etc. rather as we have a Commercial court, a dedicated Arbitration judge etc. See introductory comments. One division should specialise in small business disputes)

2.3 Should all claims in respect of employment related complaints/claims (including employment related equality matters) be submitted and dealt with by one body of first instance?


2.4 Should employment rights cases only go to the body of second instance on appeal (i.e. should the right of either side to object to the body of first instance hearing a case be removed)?

Yes. Also appeal to the circuit court should be on a point of law only.

2.5 If minimal differentiation within a two-tier structure is to be pursued, what would the optimum streams / chambers be within both the first instance and the appeals entity? For example, is there a need to retain some organisational distance / separation between the distinctive roles of

o The inspectorate function (i.e. NERA’s role in inspection, enforcement and where appropriate prosecution);

o the conciliation and mediation processes dealing with collective disputes;

o the advisory / mediation / investigative procedures dealing with individual industrial relations and employment rights claims;

o any subsequent formal adjudication on such individual cases.

How might a satisfactory segregation of these distinctive functions be best achieved?

By effective case management at first instance, then overall management within an integrated structure.

2.6 What would be the advantages and disadvantages of having statutory redundancy appeals handled on an administrative basis, perhaps through the established social welfare appeals structure, given that statutory redundancy payments are now administered by the Department of Social Protection?

No comment

Appointment, tenure, etc, arrangements in new streamlined employment rights bodies 

2.7 Should the arrangements for the appointment and tenure of those working in/ appointed to the new streamlined employment rights bodies be changed, and if so, what should be the guiding principles?

Adjudicators; All positions at the level of current Rights Commissioners/EAT members and Labour Court members should be subject to open competition in line with public service norms and a panel of private arbitrators should be established.

Mediators.  The existing mediation and conciliation services should be supplemented with a panel of private accredited mediators

Information and Advice 

2.8 Should there be one website covering all employment rights and industrial relations matters?


2.9 Do you agree that a more coherent and co-ordinated approach to the provision of advice and information on industrial relations and employment rights issues should form part of the services of the new first instance body?

Most definitely

2.10 What is the best method of providing information and advice?

Website, social media (IBEC has an Employment Law ‘app’!) and by telephone. The Citizens Information networks have very accessible employment law advice

2.11 Should non-directive advice be provided to employees and employers on what options may be available to them on the basis of the facts provided and where to go for help if required?

As currently with NERA

Single Point of Entry /Submitting Individual Industrial Relations and Employment

Rights Claims

2.12 How can a single point of entry for all individual industrial relations and employment rights complaints/claims best be achieved?

Merge the LRC, the Rights Commissioner service and the EAT. Retain NERA as a separate body with close links to the new body with a clear role as a clearing house in minor or non contentious matters.  Once there is an integrated structure this will send a message that the system has been streamlined which should be accompanied with simpler forms.

2.13 Should there be a single application form for all individual first instance industrial relations and employment rights complaints/claims?

Yes.  However,  many claimants and respondents (including solicitors) do not take the forms seriously. I have experience of turning up to a Rights Commissioner hearing with only the scantiest information about the claim. No claim should be processed until a form is correctly completed

2.14 What measures could be taken to improve information gathering from complainants / applicants at application stage?

Simple. If the form is not completed to a reasonable standard that communicates the necessary information  to the other side then it should not be processed. It is a basic requirement of fair procedure that a respondent, say is in a position to defend a claim by knowing what gives rise to it. The stock invitation to parties from the Rights Commissioner service to attempt to resolve matters should be strengthened and enforced, perhaps as a condition of being granted a hearing, (although the mediation requirement would take care of this )

2.15 Should there be a consistent time limit for initiating all complaints/claims/appeals and if so what should it be?

Yes. Six months as at present. Reference to mediation should however ‘stop the clock’ for a duration of reasonable length, say one month.

2.16 Do you agree that more consistent arrangements are required for the representation of claimants so as to enable individuals to nominate a person to represent them at a hearing e.g. trades union official, solicitor, other representatives, etc?


2.17 Where the power to present/refer a complaint is currently limited to the claimant, should it be extended to include the claimant’s trade union and, where appropriate, the claimant’s parent/guardian?

Yes, including in relation to appeals.


2.18 Should there be a consistent method of enforcing awards of employment rights bodies and if so what should that be?

Circuit Court.

Facilitating early interventions and alternative dispute resolution methods 

3.1 What interventions should be available prior to a formal hearing or inspection to resolve grievances or non-compliance e.g. telephone contact, informal hearings, more formal mediation, conciliation or arbitration?

Mediation should be made a requirement as a default position and only in extreme circumstances should a party be excused from doing so. (see the principles laid down in Halsey v Milton Keynes NHS trust)

3.2 What is the best method of identifying suitable cases for early intervention?


3.3 At what stage should the intervention take place, for example should it be available when the person first seeks information, prior to them lodging a complaint/claim or after a complaint/claim is lodged?

Both. There needs to be a stronger culture of this at workplace level and NERA should audit Discipline & Grievance procedures to ensure they contain a mediation option and that parties understand its use.

3.4 Is there scope for harnessing the expertise and capacity of personnel within the existing bodies to decide on straightforward issues where purely factual matters are in dispute?


3.5 Is there scope for forging positive connections between the public dispute resolution system and external experts in preventive alternative dispute resolution methods at workplace level?

Yes. Here are some proposals.

The Arbitration Act 2010 should be amended to remove the exclusion of employment related disputes.

A panel of suitably qualified private mediators should be established to provide early intervention or following referral to the new body.

3.6 Should parties be required to set their case out in writing?

No, but encouraged to do so as they may be at a disadvantage if they do not.

3.7 Should all complaints/claims be examined for potential interventions and should time limits apply to the offers of conciliation or mediation support?

Yes. But conciliation or mediation should not be an offer, but a requirement with adverse consequences for those who unreasonably refuse to cooperate

3.8 Are there particular kinds of issues, for instance, where mediation is likely to be especially helpful or, alternatively, where it is not likely to be helpful?

Mediation is helpful in almost all cases. An exception may be matters related to bullying or sexual harassment, for example.

3.9 Would there be merit in having a “preliminary hearing” process and if so how should it operate?

No, or very rarely. If mediation becomes a norm this is an unnecessary extra layer.

3.10 Should certain cases be dealt with on the basis of written submissions only?

In arbitration this is referred to as ‘Documents only’ arbitration and is common practise. Another option is Online Dispute Resolution (ODR) practised for example with great success by Ebay.  This might work for simple non compliance disputes.

3.11 Should attempts at resolution have any bearing on any subsequent hearing or should the process be confidential and not admissible in any hearing?

Yes, in the case of wilful refusal to participate in mediation or obstruction at it. Otherwise absolutely not. The idea of mediation is grounded in confidentiality and being without prejudice.

Conduct of Proceedings 

3.12 Should there be a uniform set of procedures regulating the conduct of hearings in all cases heard at first instance?

Not necessarily. Some standardisation might help. Rights Commissioners have different styles in relation to presentation of submissions etc but this is not necessarily harmful to the process (although apparently particularly disliked by lawyers).

3.13 Should first instance jurisdictions be empowered to dismiss what are adjudged to be frivolous, vexatious or misconceived claims without holding a formal hearing?

Probably not! But a costs penalty might assist in such cases.

3.14 Should hearings of employment rights disputes /appeals be heard in public or in private?

In public with a power to hold sensitive hearings ‘in camera’.

3.15 Should there be a uniform period for submitting appeals?

Six weeks

Submission by Workplace Solutions to Employment Rights Review

(This is the first of a two-part submission; the second being responses to a set of questions posed by the DEJI as part of its consultation document. I have not yet posted that second part. It was submitted to the DEJI on September 15th 2011 )


In the current discussion about reform of employment rights bodies the overriding issue for parties in dispute is how soon they can get to the point of settlement.

Their priority is to get early, amicable if possible and cheap resolution of the issues between them.

Others take a different view. One experienced employment law Senior Counsel has said that the starting point is that the ‘adjudication of legal rights’ is involved.

I do not share this view, whatever its academic credentials. If starting from this point of view leads us to where we are today we need to have a different starting point.

Of course the ‘legal rights’ base is important but in reality many (but not all) of the legal rights involved can be easily vindicated without having to endure the delays and other disadvantages of the current system.

Even in relation to more serious disputes (related to termination of employment mainly, also TUPE) the current legacy of treating them as legal rights does not serve the interests of justice if justice takes two and a half years to resolve a redundancy claim. This is not doing much to vindicate the legal rights of a young breadwinner.

So the correct starting point is what is necessary to achieve speedy and fair resolution of workplace disputes, consistent with recognising that legal rights are involved.

We have evolved techniques, and in the context of proposed legislation on mediation and conciliation in 2012 continue to develop solutions to the resolution of commercial and other disputes which have to a surprising extent passed by the world of employment rights disputes.

I support the creation of a single point of entry for all disputes, with appropriate reform of the forms etc. I agree that many claims (PWA, OWT, etc) could be dealt with either by the NERA inspectorate, without the necessity for a hearing or preferably by documents only arbitration or even Online Dispute resolution (ODR) techniques.

In all cases, (whether employment rights or industrial relations) the option of mediation (or conciliation as currently exists on the IR side) should be required. There should be an appropriate adverse consequence for unreasonably declining to avail of mediation, or unreasonably obstructing it (although in the absence of costs being awarded it is not immediately obvious what this should be).

However, it is now clear public policy both in political and judicial circles that early and amicable resolution of disputes is an imperative and we should not be over sensitive about acting to enforce this objective. It is also part of driving down business costs as we strive for greater competitiveness in the economy.

For example, the argument that a requirement to mediate somehow infringes the Article 6 rights in the EHCR has been strongly disputed, most recently by eminent UK legal authority in the person of Lord Justice Dyson, judge of the Supreme Court (and author of the judgement in Halsey v Milton Keynes NHS Trust, a leading case in the mediation v litigation debate).

There has been some discussion on the necessity for a hearing (at the current EAT level) to be conducted by lawyers because of the principle that legal rights are involved.

There may be some ‘lay’ adjudicators within the system who have an insufficient grasp of either the relevant law, or the law relating to fair procedure just as there nay be practising lawyers for whom the average Irish workplace is a distant country.

Knowledge of both should be a requirement for an adjudicator.  But there are non-practising lawyers, (or just non lawyers) who may be able to meet this requirement just as there are practising lawyers who cannot (the current Chairman of the Labour Court being a good example of the former as well as many current and former Rights Commissioners).

Arbitrators, for example may be involved in adjudicating sometimes complex disputes under the Arbitration Act 2010 and its predecessors involving millions of euros and while some are lawyers many are not and are no less competent as arbitrators as a result.

No-one would suggest that only a practising lawyer could conduct an arbitration. In this context, a similarly, appropriately qualified person who was not a solicitor or barrister would have little difficulty in spotting an unfair dismissal.

In addition there is no reason why an adjudicator who is not a practising lawyer (equivalent to the Chair of a current EAT division) should not have the option of legal advice if it was considered necessary.

In my view the system would then look like this.

Point of reference; assessment for one of three options

  1. Check by NERA for compliance, or settlement
  1. Option of mediation; panel of mediators to be created from suitably qualified applicants and existing Conciliation (LRC) and Mediation (Equality tribunal) services.
  1. Where mediation fails first instance adjudication by a single Adjudicator  (drawn from current Rights Commissioners supplemented by panel of Arbitrators)

Appeal to ‘new’ Labour Court (combined EAT and current Labour Court).

Cases to be assigned to divisions on the basis on known expertise. (One could have a redundancy/unfair dismissal division, general appeals, industrial relations etc.)

In particular one division should be assigned to deal with cases arising in small businesses.

On eligibility for appointment the requirement should be a high level of expertise in employment law, fair procedure and familiarity with workplace discipline and dispute resolution. It should not be a precondition that a person be a practising solicitor or barrister.

There should be appeal to Circuit court on a point of law only.

I do not favour separation of employment rights and industrial relations disputes. In fact, few disputes are entirely one or the other and this is a deeply conservative view of the needs of users of the system.  Appointees should be multi-disciplinary and competent to hear either and should rotate from one division to the other in the interests of their on-going professional development.

The Code of Practice/SI 146/2000

ACAS completed a review of its Code of Practise in June this year. Among its conclusions was that;

‘The Code was seen as able to lever a decrease in the number of disciplinary and grievance cases within an organisation by stimulating earlier resolution, before issues reached a formal grievance or disciplinary procedure.’

Of course this should be the overriding objective of such a code and in this writer’s view there is a need for a similar review of the Code of Practice/SI 146/2000 to evaluate whether it meets this objective.

In particular, this document needs to be reviewed to take account of the position of small enterprises in three key respects.

First, it is necessary to establish whether the document has any value as a dispute avoidance and resolution tool, or whether it is just a disciplinary guide, or even encourages the pursuit of grievances which might otherwise be settled.

Second, it is grossly unfair to expect the same level of record keeping and administration in a small business as is possible in a large enterprise with a dedicated HR department. Admittedly, the lack of records deprives a party of the certainty they need in their evidence but this should remain a matter for decision by the adjudicator, not an ‘offence’ in itself.

Third, the requirement to have an appeal layer in a small business is creating havoc.  In general, only the business owner can make the decision to dismiss and there is no-one to appeal to. Inviting an outside third party to adjudicate on whether the business wants to dismiss a person is preposterous and legally dubious.

Whether a dismissal is legal is another matter and that is one for the formal employment rights body to settle or decide.

However, the idea that the absence of an appeal renders a disciplinary process unfair per se must be corrected where no reasonable  option to hold one exists.

While the Code of Practice refers to mediation it is rare that this finds its way into ‘Contracts of Employment’ or the statutory statement of Terms of Employment. It is even less frequently availed of.

As a matter of priority NERA should use its persuasive presence in Irish workplaces to encourage the inclusion and use of mediation clauses in dispute resolution frameworks.

Finally, (and while I declare an obvious interest here) there is a growing body of employment law and HR consultants many with good dispute resolution skills, experience and sensitivity to issues arising in workplace disputes.  The definition of who may accompany an employee at internal disciplinary proceedings should be extended to include them.

However, the current restriction on legal representation should remain for the reasons it was initially introduced, except where this is required by the criterion of ‘severe career consequences’, or some other exceptional circumstance which seems to be the position at common law.

CIArb Ireland Conference on Mediation & ADR in Cross border context


Irish Branch

presents a conference


Programme includes:

Key Note Address – David Ford MLA, Minister for Justice

The ‘Mediation Directive’ : EU cross border mediation – Nicola White BL

NI/RoI Employment Dispute Resolution : a comparison – Ciara Fulton, Tughans

ADR in Sport, north & south ‐ Dr Jack Anderson, Law Faculty, QUB

ADR in Construction : the adjudication process – Edward Quigg, Quigg Golden

A Judicial Perspective – The Honourable Mr Justice Gillen

What next for ADR? The president’s view – Brian Speers, The Law Society

Bookings: Cost: £75 or €75 per delegate For booking arrangements and confirmations please contact Mr Jarlath Kearney, Events Coordinator at:

Tel: +44 (0)2890 321022 & +353 (0)1 676 6744 Fax: +44 (0)2890 321023 Cheques payable to ‘CIArb NI Chapter’ Alternatively, book online at

Date: 1030 – 1700, Thursday 29 September 2011 Venue: The Hilton Belfast, Lanyon Place Keynote speaker: David Ford MLA, Minister of Justice

Quigg Golden Limited 1 ‐ 3 Brunswick Street Belfast BT2 7GE or via

‘Disputes know no borders’ CIArb cross border mediation event

The Chartered Institute of Arbitrators has watched with keen interest as the landscape of dispute resolution has changed on both sides of the border in Ireland. In many instances the context may be different, for example, construction, commercial or family disputes, but the constant and consistent theme of alternative dispute resolution remains as steadfast as ever.

In the last year alone the media has been awash with articles with headlines such as “See you out of court” or “mediation, mediation, mediation”, and it clear that the alternative dispute resolution message is finally getting through to even the most cynical minds.

So what has changed? The answer comes from a variety of sources ranging from enlightened advice, financial common sense, well drafted contracts, through to new legislative initiatives. The Chartered Institute of Arbitrators has watched as lip service has been paid to theory of alternative dispute resolution, but not the practice because it relied on disputing parties to try to resolve differences on a voluntary basis. Now however the rules are changing and slowly but surely a “legal requirement” or a court invitation to attempt to resolve disputes by way of alternative dispute resolution techniques such as mediation is fast becoming the rule rather than the exception.

In Northern Ireland this year the Cross Border Mediation (Regulations) Northern Ireland 2011 were passed into law in April. These Regulations implement Directive 2008/52/ECof the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters, which applies to cross border disputes.

Local companies and businesses engaged in cross-border trade should be familiar with the new Regulations as they may impact upon them in the event of a commercial dispute and thus a sound working knowledge of alternative dispute resolution techniques in a cross-border context becomes an invaluable asset.

The Chartered Institute of Arbitrators is holding a one day conference on alternative dispute resolution in relation to cross border disputes from a variety of perspectives – commercial, employment, sport and so on, on 29th September in the Hilton Hotel Belfast. The conference will feature speakers including the Minister for Justice, industry specialists and members of the judiciary.

More information is available here.

If you would like to attend please contact Jarlath Kearney CIArb Event Coordinator on 028 90 321 022 or