How ‘Fair’ does ‘Fair procedure’ have to be?

Minister for Jobs, Enterprise & Innovation, Richard Bruton is embarking on some much-needed reform of the employment rights bodies. A consultation period concluding on September 16th has been announced. (Details and more information can be accessed via the News Section of the Homepage on this site).

Outside the issue of structures (about which I intend to write more in due course) there is an aspect of this that may otherwise escape attention in a debate focused on reform of the institutions.

But it is as badly in need of attention as part of the package of reforms.

That is SI 146/2000; the statutory instrument which is the benchmark document for the operation of fair procedure at workplace level, or more accurately the interpretation of the procedures it promotes requires a fresh look.

Interestingly, I had this piece more or less concluded when I came across an article on the site of the American Bar Association entitled ‘How fair does justice have to be’? It concerns the duty on the prosecution to share information with the defence in criminal trials (known as ‘Brady material’, as a matter of interest, but no relation!). It is only relevant to this article insofar as I am asking the same question and relieved that it does not turn me into some sort of a fascist for daring to ask it!

At the outset I am concerned on the basis of my own experience and what I hear from colleagues about the apparent loss of dispute resolution skills in many workplace situations. The Pavlovian reach for the Procedures manual can be bad for workplace relations and more important for the speedy and fair resolution of disputes.

Even where the employment relationship has ended amicable and early resolution of disputes is desirable for all parties.

The CIPD reckons that HR managers with mediation skills are 80% more likely to resolve disputes than those without. I suspect that for ‘mediation’ one might substitute ‘negotiating’ skills.

While the broad principles of the SI and the Code of Practice are fine, and indeed very important my concern is its applicability in small business settings. The principles in the document appear to have been drafted by people who weren’t thinking about small or medium sized, owner managed businesses.

This is despite the fact that about 60% of all businesses employ 50 people or less. No data are collected for micro-businesses. But clearly many thousands of these employees are employed in retail, and other businesses with under 20 employees or smaller.

For example s 13 reads; ‘Procedures should set out clearly the different levels in the enterprise or organisation at which the various stages of the procedures will be applied’

This is a good idea for ‘enterprises or organisations’ that have ‘different levels’. And the overall tone and expectations of this document are those of large enterprises and government departments; business organisations with a hierarchy. Most small businesses only have one level!

It envisages a level of administration impractical in a small business. I once had a case where the employer collected the claimant in his car every morning at 6.30. Following an incident he gave him a good telling off one morning as they were on their way to work.

Should he; the operator of a small butcher shop have sat down when he got in to work at 6.45 am and made a record of that? Under the current dispensation it might be the difference between an expensive award against him or not.

The claimant may not even dispute that it happened but a good, especially legal representative will make an issue out of the lack of documentation as a matter of principle, rather than from the point of view of a real, substantive breach of the employees rights, or as a matter of evidence as to whether the warning was issued.

To expect the owner of a small business to match a well resourced HR department in a large company or state organisation in the administration of workplace discipline is simply unrealistic; even unfair, as we’re on the subject.

I do not argue for one second that there should be any diminution in the substantive rights to the full rigour of fair procedure of a person accused of something which may cost them their job

However, it may be that the calcification of the system with its investigations, delays, hearings, costs can result in unfairness to all parties through the prolongation of disputes unnecessarily.

The impact on human relations in the workplace in replacing the inter-personal dynamic with an obsession with disciplinary and other procedures is surely a bad thing if it turns the workplace into a quasi legal battleground.

Another issue is the requirement for an appeal layer which is impossible to implement in most small businesses in any meaningful way.

In thousands, perhaps in most small businesses there is insufficient daylight between the necessary decision maker and any other person who might hear an appeal.

In my opinion the idea that an independent third party (paid for by the business owner) might be appointed to hear the appeal is somewhere between ludicrous and dangerous.

This essentially takes what is still at that point an internal business decision out of the hands of the owner of the business.

In any case, strictly speaking such an adjudicator, paid for by the employer may not be viewed as independent taking into account the requirement for independence in arbitrators and recent decisions of the courts on such appointments. (Healy v Whitepark Developments, 2009 Unreported). (Private arbitration by a competent arbitrator is another matter, and I repeat my criticism of the mystifying exclusion of employment disputes from the Arbitration Act 2010, a really stupid decision).

Again I have had a recent painful experience where a person appointed to hear such an appeal did so without terms of reference, without holding a hearing, and without giving reasons for his findings. Neither the adjudicator, the company which suggested him, the employer or the employee (represented by a large Trade union) thought it necessary to challenge any of these deficits. A mess? Carnage!

Indeed the whole idea that ‘nemo iudex’; the principle underpinning fair procedure that no-one is a judge in his own cause can apply in any meaningful way in a small to medium sized business is somewhat fanciful (and has been recognised as being so by the High Court).

It is ludicrous to imagine that the owner of a small to medium sized business can rise to judicial levels of detachment in relation to issues in which s/he has a direct involvement and with employees s/he knows well. No amount of po-faced posturing about fair procedure will change this reality.

The Rights Commissioner service is hearing cases with a relatively short delay and offers the option of an appeal under the Industrial Relations Act which would remove the necessity for such pantomime at the level of the workplace. This might resolve the matter subject to it having the resources to cope (or by also amending the Arbitration Act to allow private arbitration in employment disputes).

Parties for example need clarity that the lack of an appeal layer in a small business may not be a breach of fair procedure.

The basic principles in the Code of Practice should not be changed (except that the option of mediation really needs to be put centre stage in view of the expected Mediation and Conciliation Bill in 2012). But at the very least the implementation of those principles in a small business setting needs to be clarified (what are ‘adequate records’ for example?) and we are unlikely to get a better opportunity than the forthcoming consultation process.

It can happen that an employer has done their very best to be fair within a general understanding of the term, and indeed has complied with a very high standard of procedural fairness but still ends up being tripped up because there is no documentation of a verbal warning!

In other words where a process has been in substantial compliance (whatever that may mean) with the requirements of fair procedure technical flaws should not render it unfair.

The problem is no-one knows with certainty (normally until it is too late) what the standard should be.  At the point you find out for sure you could be reaching for your cheque book and paying out a five-figure sum.

Is it this ‘juridification’ of workplace discipline issues that is destroying traditional dispute resolution skills practised for generations by old style personnel managers (as they were then) and workplace representatives.

It is likely that the current SI was based on discussions between the then ‘social partners’ who were scarcely very representative of small enterprises or cognisant of these issues. The high level of involvement of some solicitors and barristers in the system with limited knowledge of HR and workplace dispute resolution processes has compounded the problem.

Those who are representative of small business might now be invited to consider the preparation of a more relevant document that brings greater clarity for all parties involved as part of the Minister’s reform initiative.

There is no argument being made here that basic principles of fairness should be in any way compromised, or that peremptory action by bad employers should be rewarded.

But there should be explicit recognition that due regard should be had to the small business context, proximity of relationships etc. in assessing compliance with the SI where there has been an attempt in good faith to operate in a fair way.


I dedicate this article to the memory of  an old acquaintance.  A lonely, single, middle-aged, gentle person with a drink problem who happened, stupidly to call into his workplace while intoxicated, but did no more than that. He did nothing wrong.

He was, in accordance with the procedures suspended pending a disciplinary investigation by his award winning employer. At that point he consulted me. I advised him on June 28th to seek medical help immediately and we would deal with the disciplinary matters later.

He agreed to do so.

He was found dead, alone exactly four weeks later. He was buried on July 22nd

May he rest in peace.

The Bruton proposals for reform of the employment rights bodies

‘A system not fulfilling its purpose, compliant businesses sucked into costly hearings, workers having to wait too long for a remedy, a system you wouldn’t choose if you were starting out with a blank page’

A selection of the things Minister Richard Bruton had to say about the current employment rights dispute resolution bodies at the recent conference organised by UCD Law School and the Employment Law Association of Ireland.  (July 1-2)

And there was more!

‘Five redress or enforcement bodies, (resulting in ‘forum shopping’) 35 different forms to launch proceedings, different time limits, different routes of appeal, a system that is too complex and requires professional help to negotiate it (something he said was never intended) and a system overloaded by problems arising from the economic crisis’

In common with many aspects of the Irish public service these words on the need for reform of the employment rights bodies are far from the first to be uttered, or written about the employment rights disputes bodies.

And while the conference featured a number of distinguished contributions from Irish and international speakers (about which more in a future newsletter) all who heard these remarks, or who practise in the employment rights bodies will be focused on the possibility that change may at last be imminent.

Few who know the system would take issue with the Minister’s criticisms or the need for the changes he described. And more important than its impact on practitioners is its failure to provide early and effective solutions both for complainants and respondents.

Indeed the big question after the Minister’s speech was; ‘Will it really happen this time?’

Some reasons for thinking that it will are that this initiative is also about getting better value for money.

Unusually in public service reforms this could be one of the cases where better value is not just a synonym for ‘cheaper’ but may actually result in a better service to those who use it both as ‘clients/customers’ and their representatives.

The Minister’s plan is for the creation of one, common portal of entry, with simplified forms etc, one basic system of adjudication at first instance (with one hopes a mediation level) and one of appeal.

There would be a common format for the submission of cases and, perhaps most important, active case management. (It can take eight months for a party to even be notified that an unfair dismissal claim has been lodged against them.)

Some innovations are being considered. Could there be more ‘documents only’ hearings? This sounds like an oxymoron but it is common in arbitration proceedings.

In relation to straight compliance issues such as whether an employee has a statement of their Terms of Employment could this be addressed by a NERA inspection, rather than requiring a hearing simply to establish the facts either way. (In this respect the standard suggestion made by the Rights Commissioner service that parties make contact with each other to clear up such matters is rarely taken up. Pending wider reform perhaps there should be greater encouragement to do this and sanctions for failing to do so.)

And of particular interest to this writer is the possibility that more extensive use might be made of mediation. (And while we are at it why not take the opportunity to remove the exclusion on arbitrating employment disputes in the 2010 Arbitration Act).

But the employment rights sector has now fallen very much behind the debate about mediation. Some of those at the conference (including some policymakers) seemed unaware of the Law Reform Commission report on Mediation, published last November, which does cover employment disputes.

The potential contribution to early dispute resolution of having a panel of accredited mediators available to parties is the missing piece in the jigsaw in this discussion.

Undoubtedly, many details would have to be worked out (what does accredited mean, who would pay etc) but in drafting the reforms Mr. Bruton’s Department should look at where this might fit in in the overall scheme of things. It needs to catch up on what is happening in relation to ADR in the wider context. The Chartered Institute of Arbitrators will be making a submission to the Minister along these lines.

What’s next? The Minister sees a short period of consultation and the establishment of an ‘Implementation Group’. He noted that the Croke Park agreement will facilitate any changes involving transfer of personnel.

So at last change looks likely, especially given the positive political reaction to the Minister’s remarks, including from Labour backbenchers where he has not been a popular figure of late! His discomfort has been relieved, for now at least by the recent decision of the High Court in the case brought by ‘fast food’ restaurants here. A point of interest now arising is whether existing contracts of employment are in fact protected, as was generally believed would be the case. More to follow on this, no doubt.

(To contact the Employment Law Association of Ireland its Chair is Carol Fawsitt at Hayes Solicitors; email

(There is a link to the Minister’s speech on my homepage)

The Resolution of Individual Employment Rights Disputes

(This was a very successful event held on July 1/2 at which Minister Richard Bruton made proposals for radical changes in the employment law institutions. See my Blog on the Bruton proposals. I’ll post some more on other papers at the conference in due course. )

UCD School of Law 

(with the support of the UCD Commercial Law Centre and the Employment Law Association of Ireland) 

presents a conference on


University College Dublin

Friday 1st July & Saturday 2nd July, 2011

 The Resolution of Individual Employment Rights Disputes 

The incremental evolution of employment rights legislation has created a complicated system involving a range of bodies whose jurisdiction depends on the nature of the employment right in question. There now appears to be general acceptance of the need to simplify and streamline the complaint, appeal and enforcement procedures across the various bodies but there is less agreement on how this might be achieved.

This High Level Conference will involve contributions from distinguished experts who will provide critical evaluations on the way in which individual  employment rights disputes are resolved in England, Northern Ireland, France, Italy, the Netherlands and Canada as well as contributions from a range of speakers who will provide unique insights into the operation of the existing procedures in this jurisdiction.

Conference Schedule 

Friday, 1st July 2011

 Venue:          John Hume Institute for Global Irish Studies, University College,  Belfield, Dublin 4

5.30pm          Registration

6.00pm          Welcome

            Professor John Jackson, Dean of the School of Law, University                                    College Dublin

6.10pm          Formal Opening of Conference

Richard Bruton T.D                       

6.45pm          Dinner

7.45pm          Conference Opening Address

HH Judge Jeremy McMullen QC

8.15pm          Coffee

Saturday, 2nd July 2011 

Venue:          Quinn School of Business, University College, Belfield, Dublin 4

8.45am          Registration

9.15am          Welcome

            Carol Fawsitt, Hayes Solicitors, Chair of the Employment Law                          Association of Ireland

                 9.20am          Session 1: The Reform Agenda

                        Chair:             Pat Brady

Speakers:     Brian Barry,  Tom Evans, Anthony Kerr

11.00am       Coffee

11.20am       Session 2: A Comparative Perspective

                        Chair:             Bill Roche

Speakers:     Bernard Adell, Maurizio Del Conte, Yvonne Erkens, Francis Kessler

1.00pm          Lunch

2.00pm          Session 3: Round Table Discussion 

                        Chair:             Colin Scott

Speakers:     Kevin Duffy, John Horgan, Janet Hughes, Eugene McGlone, Kieran Mulvey, Alan Price, Peter Ward

4.00pm          Close of Conference & Distribution of CPD Certificates

Speaker Profiles 

Bernard Adell is Professor Emeritus at Queen’s University, Ontario and editor-in-chief of the Canadian Labour and Employment Law Journal.

Brian Barry is a graduate of Trinity College Dublin, where he is currently pursuing a PhD in the area of Irish employment dispute resolution reform, and an executive committee member of the Employment Law Association of Ireland.

Pat Brady is an Employment Law and HR Consultant, Arbitrator and accredited Mediator and Chair of the Chartered Institute of Arbitrators.

Richard Bruton, T.D.,  is the Minister for Enterprise, Trade and Innovation.

Maurizio Del Conte is Professor of Labour Law at Bocconi University, Milan and an editorial board member of Diritto delle Relazioni Industriali.

Kevin Duffy  is Chairman of the Labour Court.

Yvonne Erkens is an Associate Professor of Labour Law at Leiden University and a part-time Labour Court judge in Maastricht.

Tom Evans is Assistant Director at the Northern Ireland Department for Employment and Learning where he is responsible for employment rights, policy and legislation.

John Horgan is a former Chairman of the Labour Court who is now an independent Human Resources consultant.

Janet Hughes is a former Rights Commissioner.

Anthony Kerr is a Statutory Lecturer in the School of Law, University College Dublin and Vice Chair of the Employment Law Association of Ireland.

Francis Kessler is an Assistant Professor in the Sorbonne Law School at the University of Paris I and Senior Counsel at Gide Loyrette Noviel AARPI.

Eugene McGlone is an official with UNITE – The Union.

Jeremy McMullen QC is a senior circuit judge, one of two permanent judges of the Employment Appeal Tribunal sitting in London and Edinburgh, who, before being called to the Bar, worked for the GMB trade union as an elected regional officer.

Kieran Mulvey is Chief Executive of the Labour Relations Commission.

Alan Price is a Director of Peninsula Business Services (Ireland) Ltd and a lay member of the Employment Tribunals in Britain.

Bill Roche is Professor of Industrial Relations & Human Resources in the School of Business, University College Dublin.

Colin Scott is Professor of EU Regulation and Governance in the School of Law, University College Dublin, where he is Associate Dean.

Peter Ward is a Senior Counsel and an executive committee member of the Employment Law Association of Ireland.

Booking Details 

Programme Fee: €350/ €250 for ELAI Members.

Saturday sessions only: €285/€200 for ELAI Members.

Programme Fee includes attendance at conference, a comprehensive conference folder (containing papers relating to the conference sessions), coffee/tea on arrival at and during conference, lunch and dinner.

Certification for CPD purposes will be available on Saturday if required.

To book your place please complete the booking form attached and email to

For more information call Sinead Hennessy at 716 8763.


Representation at the EAT; grounds for concern?

I have been taking a look at the statistics in the Annual Reports of the Employment Appeals Tribunal for representation and appearances at the tribunal.  I examined the figures for the years 2005 and 2008 and in October last year the 2009 Annual report was published.

It adds interesting information. It mostly indicates a huge increase in the number of cases being referred to the EAT; from 5457 in 2008 to 9458 in 2009 although only about a half of this number were heard during the year.

I have strong feelings (as an arbitrator and mediator) about the way things have gone with the EAT and there is widespread dissatisfaction with delays now of about a year and a half. (Admittedly the position at the Equality Tribunal is a lot worse. The Minister for Equality Jimmy Deenihan recently announced that it took three years to get a hearing.

These are the figures for categories of representation in all cases coming before the EAT. There were a total of 2180 cases heard altogether. There was representation of employees in 1447 cases and of employers in 882 cases.  See Appendix A below for details.

What follows are general observations and not those of a statistician. I’d welcome comments.

But a number of things strike one from these figures.

The EAT produces statistics for representation at all hearings and separately for claims under the Unfair Dismissals Act (UDA). Claims under that act account for 93% of all hearings (2009 report)

What the figures above show is that comparing 2005 and 2009; in cases where parties are represented;

  •  62% were represented by lawyers; a decline since 2005 from 69%.
  • Those represented by unions has increased marginally from 12 to 14%
  • Those represented by ‘Others’ has seen a significant enough surge from 16 to 20% (mainly accounted for by a leap in the number of employee cases in this category from 111 to 301). I take another look at that below.

In cases involving Unfair Dismissals Act the position regarding representation is as set out in Appendix B below

There is a significant increase in the number of appearances by lawyers; rising from 64% of ‘all cases’ to  about 75% in cases under the UDA and remaining constant over the period. This may not be a surprise. The involvement of lawyers in the process was well advanced by 2005!

I also took a look at representation of employees only and the following is the picture (just looking at 2005 and 2009.

All Cases Union % Lawyer % Others %
2005 989 23 66 11
2009 1447 22 57 21
UDA only
2005 764 16 77 7
2009 794 13 75 13

Some interesting changes here. The numbers of ‘Others’ has climbed sharply while the involvement of lawyers in cases under legislation other than the UDA has fallen somewhat.  This may reflect lower levels of settlement in non UDA cases.

In the case of employees only, the numbers of those represented by ‘others’ has almost trebled from 111 to 301 and in UDA cases doubled from 52 to 104; (the category of employers represented by ‘others’ has fallen from 123 to 103; 19%.)

This means that there are as many claimants (I am assuming all claimants are employees) represented by ‘others’ as by trade unions. Outside of UD Act cases it is not onerous to present a case under certain of the other statutes. The only concern is that they get so far (see final paragraph)

Who are these ‘Others’? Clearly they include those such as your humble correspondent! But presumably also Citizens Advice Bureaux (especially in cases involving nationals from EU or other states), the occasional family member etc. Although I am at a loss to know who others are in the case of employers, apart again from independent HR consultants, or perhaps accountants.

Are these figures worrying for trade unions? Looking at the benign scenario first it is probably the case that where trade unions represent workers there is a very high probability of cases being settled long before they get to this stage.

Interestingly this appears to show that in respect of the 2180 claims heard by the Tribunal in 2009, and on the assumption that an employee was in attendance in most, if not all of these they were only represented in (roughly) 1500 cases.

That said I have heard from some union sources of a reluctance on the part of union officials to take cases as far as the EAT because of the rigidity of the procedures, the requirements for examination of witnesses etc.

Union officials probably prefer theLabour Courtstyle of presentation of their submission without having to comply with the burden of even somewhat relaxed application of the rules of evidence, cross examination etc which may be reflected in the figures, but I can’t say for sure. But these facts suggest that only about one in six employees whose case runs before the EAT is represented by a trade union official.

The bottom line is that the era of employment rights has drastically altered the balance of forces and entitlements that exist as a matter of legal right do not require trade union membership for their vindication.

On the employer side IBEC offers legal representation through in-house solicitors and employers and trade associations would in general be better resourced to fund legal representation.

Finally, the report says that the average waiting time for a hearing in 2009 was 31 weeks inDublinand 32 elsewhere. A query I made recently established that this situation has deteriorated significantly and it is now 78 weeks inDublinand 81 weeks in Wicklow, for example.

The EAT is unusual both in terms of dispute resolution in employment matters and in the wider world in that it does not have a mediation or conciliation ‘step’. It badly and urgently needs one. It is far too cumbersome, time consuming and in many cases expensive to resolve what are for the most part relatively simple disputes. And it is now settled law that even statute based claims may be settled subject to a number of simple conditions without the necessity for an EAT hearing.

The other LRC; the Law Reform Commission in its report launched in November 2010 on mediation ducked this issue. While it provided a comprehensive and informative overview of the  current situation for reasons best known to itself it made no hard proposals.

The area of employment disputes was once our most developed system of what we today call Alternative Dispute Resolution….Not any more! The EAT is thirty four years old this year and showing its age. It needs a Berocca boost!

Appendix A Representation; All cases

T.U/ Trade rep Legal Other
2009 2008 2005 2009 2008 2005 2009 2008 2005
Employees 318 282 223 828 831 655 301 219 111
Employer 92 77 53 616 626 585 174 220 180
410 359 276 1444 1457 1240 475 439 291

 Appendix B Representation UD cases

T.U/Trade assoc



2009 2008 2005 2009 2008 2005 2009 2008 2005
Employees 100 106 126 593 636 586 101 71 52
Employer 70 63 44 455 479 489 104 140 123

Concern about Quinn Bill on construction arbitration (adjudication)

The Construction Contracts Bill  (Click for bill)  was initiated in the Seanad by Feargal Quinn.  A recent report in the SBP suggests that this is likely to be adopted by the government and enacted before the election. It is apparently with the A-G at the moment.

It essentially proposes a system of fast track arbitration, styled as ‘adjudication’ into disputes over contract payments between various parties in the construction chain (‘employer’- main contractor-sub-contractor etc).

While the objective of speeding up disputed payments is a laudable one especially in the current climate facing the construction industry there are significant concerns about the bill within sections of the construction related professions (engineers, architects, surveyors etc) and within the arbitration ‘community’.

In principle it sounds fine; but it draws on a UK model which has been the subject of much criticism, and there are alternative models (New South Wales) which are regarded as superior. Something between the two might be an option.

Notably, the precise limits of the ‘chain’ is an issue.  (Does it include a solicitor drafting a contract at the end of the chain as well as a main and a sub contractor?)

Also there are issues about how a dominant party can abuse the process to strong-arm weaker parties within the tight time frame for the adjudication. This danger is anathema to fair procedure concepts associated with arbitration.

There is no urgency about this Bill. Such a measure is, in principle a good idea but the detail needs to be refined. Little of this was done in the Seanad which in this case at least has reinforced critics as to its role.

Much better to let the civil service do what it does well and extend the period of consultatiom on the measure with a view to bringing an improved version to the Dail later in the year.

A group representing engineers, architects, surveyors etc is very critical of the measure and has made its views known in a paper submitted to the Government. I can make it available (with the approval of the authors) on request.

As a general arbitrator some of the issues involved here are, frankly beyond my experience (and I suspect beyond Senator Quinn’s) but we should not ignore the views of those with practical experience of the operational strengths and weaknesses of existing provision.

But the paper describes how a dual process of adjudication would solve many of the perceived problems with adjudication in the building and construction industry. The proposed dual process is a combination of the existing process of adjudication in NSW, Victoria and Queensland, which is described as the certification process, and the process of adjudication in the UK, NZ and elsewhere: the traditional process.

Under the dual process, the procedure for adjudicating progress claims would be slightly different to the procedure for adjudicating ‘ex–contractual claims’for debt or damages.

This is something which should not be rushed. Better to wait and do it well than just add to a list of swan song enactments. There are dangers in creating legal rights in a situation where there is such uncertainty as to their implications.

Dispute Resolution; an opportunity to influence the next government?

Let’s get a discussion started on what measures the dispute resolution community, if I might call it that would like to see in the next Programme for Government.

Here is the text of what is in the Four Year National Recovery Plan (Page 33). This is in the somewhat limited context of bringing professional costs down. A broader focus on dispute resolution an all walks of Irish life might be a more positive approach

Action Points

Provide for a more structured approach to mediation in the legal system and promote further the use of Alternative Dispute Resolution taking into account recommendations of the Law Reform Commission in its Final Report 2010 on the subject.

A package of measures to reduce legal costs will be implemented, including

  •  increased use of tendering by the State;
  • prioritising publication and enactment of the Legal Costs Bill; and
  • additional proposals for legislation to reduce legal costs, drawing on the recommendations of the Legal Costs Working Group and the Competition Authority.
  •  Provide for increased use of arbitration and mediation.

As always, turning these fine words into reality will be a task in itself, but a first step will be to ensure that the parties which might make up the new government are also committed to them.

Also, it is a chance to look at dispute resolution in the employment law area. Kieran Mulvey says the LRC is inundated. It takes a year to get to the EAT.

I have some thoughts on these problems which I will return to shortly. Yours are more than welsome.

CIArb Annual Dinner. Chairman’s address

‘Alternative Dispute Resolution has reached new heights in Ireland in the last year with the enactment of the Arbitration Act 2010 and with the recent publication of the Law Reform Commission proposals on ADR.’ Arbitration Institute Chairman  

Terence O’Keeffe Chairman of the Irish branch of the worldwide dispute resolution body the Chartered Institute of Arbitrators told the Irish branch annual dinner last night (Friday 19th)  that the 2010 Arbitration Act ‘paved the way for Ireland to promote itself as a venue for International Arbitration.

The Act provides that the High Court is the only court which can deal with any matters arising under the legislation and there is no appeal from it to any other court. 

The Act provides for a Judge of the High Court to deal with all arbitral matters that come before and the Appointed judge is His Honour Mr. Justice Peter Kelly. 

Judge Kelly has already handed down a judgement very recently on a matter relating to arbitration and has ruled that a body cannot nominate an arbitrator in which one of its one members is a party (in that case the CIF). 

As a result of that ruling it is more important than ever to select a body such as the Chartered Institute of Arbitrators as the body named in arbitration clauses as default appointing body. CIArb has members from all professions amongst our ranks who are well qualified to arbitrate a wide range of disputes and as we are an independent  body the arbitration clause should satisfy the European directive. 

A further boost to Alternative Dispute Resolution in Ireland was received when the Law Reform Commission published it’s Report on ADR earlier this week. At the launch the Chief Justice stated that the use of ADR as an alternative to litigation must be actively promoted by the State. 

Amongst the reports recommendations are: 

Legislation should be enacted which defines clearly what is meant by Conciliation and Mediation.

There should be a statutory code of practice for Con and Med to include training requirements

Mediation or conciliation can be initiated either (a) independently of court proceedings or (b) where suggested by the court after Court proceedings have commenced.

 We now have court rules which provide for Mediation in both the High and Circuit Courts so all of the above encourages the use of ADR as a mechanism by which to resolve our disputes in as non contentious, expeditious and inexpensive manner as possible. 

The role of the CIArb Irish branch is provide the education and training of those wishing to act as dispute resolvers and to appoint them to act where required across the entire range of disputes as arbitrators, mediators or other specialist third party neutrals. 

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Ten million reasons for alternative dispute resolution

Who can say where the truth really lies? 

But the complaint was subjected to the full rigour of due process.  

There was an investigation, admittedly which found that allegations of wrongdoing were unfounded. Carried out by a solicitor. And yet a combination of circumstances resulted in the respondent (I nearly said victim) ending up on the receiving end of a €10 million payout…………for now. How did they end up where they did. 

What lessons do we learn from this? 

Taking the benign view of this you wonder how the hell it ever got so far. I’m an advocate of full investigations when complainants feel aggrieved. It’s what our culture of fair procedure demands and it is often the precursor to happy and successful outcomes. 

Bit I’m a much greater advocate of the merits of the intervention of a competent mediator to sort these things out some way south of an award of €10 million. The report of the Law reform Commission on ADR gives good examples of amicable settlements reached through a mediation process.

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