Tag: Dispute Resolution

Mediation Bill; CIArb submission to Oireachtas joint ctte on Justice

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                           Chartered Institute of Arbitrators   (Irish Branch)

What we are; an introduction.

  • A worldwide, organisation founded in 1915. Head Office; London. Irish Office 27, Merchant’s Quay, Dublin 8
  • Approx 12,000 members worldwide and 750 in Ireland, multi-disciplinary membership.
  • In ireland, an all island organisation with a Northern Ireland Chapter
  • Main disciplines are arbitration, adjudication and mediation, but also expert determination, conciliation and other third party neutral interventions.
  • Three separate membership grades Associate,  (full) Member, Fellowship Member. Also Chartered Arbitrator
  • Members conduct subject to a Code of Professional Conduct and regulated by a Professional Conduct Committee.
  • Operate a series of Professsional Practise Guidelines in relation to Mediation (and other ADR disciplines)
  • Our mission statement:

‘To promote and facilitate worldwide in a financially self-sustaining manner, the determination of civil and commercial disputes by arbitration, mediation and other alternative means of private dispute resolution through the support of a duly qualified, growing, active and highly regarded membership’.

  • In Ireland we work with other professional bodies (legal profession, engineers, architects, surveyors etc.) business organisations and trade unions etc. on matters of common interest and in relation to:

–      Promoting Alternative Dispute resolution (ADR) in general

–      Promoting CIArb as the national centre for dispute resolution

–      Organising training courses meetings, lectures and social events

The Mediation Bill

The CIArb (Irish Branch) gave a warm welcome to the publication of the outline of the Mediation Bill. This followed the Law Reform Commission Report in 2010 and commitments in the Programme for Government to improving dispute resolution and reducing legal costs to which we fully subscribe.

In a statement we commented;

This is an important day for Irish business. It would be easy to underestimate the significance of the statutory underpinning of mediation as a means of resolving disputes throughout the economy, in family and employment matters also.

Professional mediators, such as our mediator members, deploy a range of skills and techniques which, in the vast majority of cases, aid parties in dispute to resolve their differences in a positive way, that not only keeps them out of the courts and away from crippling legal costs, but which can sometimes avoid the negative destruction of relationships. Many judges have spoken strongly in favour of mediation, not simply as an alternative to the legal system but increasingly as a vital part of it in achieving justice for those involved.

We welcome the provision for lawyers and the courts to encourage parties into mediation, (with a possibility of financial consequences if they do not).

Pat Brady, Chairman, CIArb (Irish Branch)

We especially welcomed the requirement that mediators have high level and specialised training and operate under a code of conduct and we noted.

‘CIArb accredited mediators are trained to an international standard and operate under the Institute’s Code of Conduct and its Charter, and we provide additional training in workplace mediation for example.’

In relation to the deliberations of the Oireachtas Committee our key concerns are;

  • That Mediation should not be seen (in the words of the Law Reform Commission) as ‘second class justice’.
  • Therefore, there should be clear criteria governing use of the term ‘Accredited Mediator’. This could take the form of approving organisations which currently provide training to this level, or specifying a number of hours training requirement for ‘Accreditation’.
  • To be successful, public awareness of its availability and potential needs to improve. In Australia, for example where mediation and related dispute resolution techniques are deeply embedded it is driven by consumer demand. Accordingly, enactment of the legislation should be accompanied by a major public information campaign to promote the benefits of mediation as an effective dispute resolution technique and an alternative to litigation.

Pat Brady FCIArb

Chairman, CIArb (Irish Branch)

A commentary on the Bill for further consideration now follows.

The Mediation Bill 2012  

Additional Memorandum from

The Chartered Institute of Arbitrators (Irish Branch)

To the Oireachtas Joint Committee on Justice, Equality & Defence.

  1. Head 4(1) (b) (i) & (ii) – “Mediation services” – Section 4 (1) (b) (i) should be amended to read “(i) information concerning mediation services provided by accredited and licensed mediators“,

And

Section 4 (1) (b) (ii) should be amended to read “names of persons who are accredited and licensed mediators or organisations of such persons, qualified to provide mediation services.”

Head 4(1) (b) (ii) – “insofar as is possible” – It is always possible, even if somewhat imprecise. The words “insofar as it is possible” should be deleted. Section 68 of the Solicitors Act 1994, for example, imposes an absolute obligation on a solicitor, as soon as is practicable, to give written estimate as to costs, (even though it does not set out the implications of default).

Head 4(1) (b) (ii) – “where practicable” – It is always practicable, even if somewhat imprecise. The words “where practicable” invite failure to comply and should be deleted. (Perhaps the words “as soon as is practicable” could be used).

  • Head 4 (2) (i) (a) – a party’s declaration re consideration of mediation to be provided.  In family law legislation, for example, a solicitor’s certificate that they have advised the parties as to counselling / mediation is provided for.  This declaration of a party is better and is to be welcomed. However, this should go further than just stating it has been considered and should state why mediation has not been adopted or have failed of as a dispute resolution mechanism. Otherwise it may simply become formulaic. Furthermore, this declaration can then be taken into account and can be considered by the court when considering the question of costs under section 19.
  • Head 5 – Barrister’s duty to advise on mediation – Again, there should be a requirement for the client to acknowledge the advice, in writing, and again state why the option of mediation was not pursued. The “double whammy” of a declaration under section 4 and an acknowledgement of counsel’s advices under section 5, will ensure that the client is fully informed as to the mediation options, and has made a fully informed choice not to proceed, cognisant of all the implications (including implications as to costs) of failing to avail of the mediation option.
  •  Head 6 (2) b – the mediator’s Code of Practice – this provides that parties and mediator sign an agreed statement and makes it an obligation on the Mediator to state the code of practice, (if any), to which he/she adheres. It should be mandatory for Mediators to declare the Code of conduct they practice under – therefore remove the words ‘if any’.  The Minister should have the power to publish a (default) code of practice, and recognise called of practice published by recognised bodies (such as the Chartered Institute).
  • Head 6 (4) – the Mediator to state reasons for withdrawal – The parties may withdraw without explanation, but a mediator may not. There is a potential for breach of confidentiality in imposing an obligation on the mediator to state the reasons for their withdrawal. The mediator should be free to withdraw without having to state a reason. Indeed, the LRC report recommended as much. It should be an option, not an obligation.  The explanatory notes refer to the nature of the “policy perspective” which allegedly requires this disclosure, but the nature of the “policy perspective” is not stated. As previously mentioned, it could involve compromising if not prejudicing the confidentiality of the parties, that the mediator states reasons. One would have thought that it was undesirable from a policy perspective, that confidentiality would be breached.
  • Head 6 (6) – participation of non-parties – allows for one or more non-party participants to be present and assist a party during the mediation process. This should be “where the parties and the mediator agree … one or more non-party participants may be present and may assist” etc…. The LRC report page 41 states: “on the issue of non-party participants the Commission recommends that parties may agree that a non-party participant be allowed to participate in the mediation.”    This provision in the draft Bill omits the agreement option. It is the job of the mediated minutes the mediation process and the presence of a non-party may inhibit that management, and may inhibit agreement. Accordingly, the admission of a non-party to the mediation should be where the parties and the mediator agree.
  •      Head 7 (2) (a) – the mediator must ensure the parties have the capacity, at all stages of the mediation. – How is this to be achieved? It would be better that, having established at the outset that the parties had capacity, there would be a presumption that such capacity continues, unless and until the mediator is made aware that they may no longer have such capacity.
  •   Head 7 (2) (e) – mediator must ensure the parties understand any mediated agreement – in circumstances where the parties are legally represented/advised, the mediator can rely upon the parties representative/advisor to so advise them and to ensure that the party understands the implications of the mediated agreement. Where the parties are not legally advised at the time of mediation, the question then arises as to how the mediator is to “ensure” the parties understand any mediated agreement? It is to be suggested that in the absence of a party being legally advised that the time of entry into a mediation agreement, the mediator should be entitled to make a statement as to their understanding of the nature, purpose and effect of the mediated agreement, which statement is to be regarded as a statement for the purposes of section 19.
  • Head 7 (3) and (4) – Mediator’s suggestions for settlement – Rather than a mediator suggesting terms after mediation has failed, (when there is a danger that the parties would become intransigent) it should be made clear that the mediator is free, with the agreement of the parties, to suggest terms for settlement at any point during the mediation.
  • Head 8(1) requires Mediator to give details of experience. – Mediators should be accredited and licensed. It may be that there is a trained & accredited mediator, who lacks experience, or an experienced accredited mediator who had no training (apart from accreditation training).  The LRC Report recommended this provision with a view to ascertaining knowledge and experience of ‘screening’ in family law cases. It is recommended that the head would be amended to require disclosure of mediators “training and/or experience”. 
  • No attempt whatsoever is made at regulating the profession, the training of mediators, and the administration of the profession or any other method of quality control of the mediator’s profession. It is particularly surprising that there is no reference to minimum training requirements or standards (especially in the case of family disputes, when the same draft legislation contains a broadly drafted provision facilitating and encouraging the participation of children in mediation).
  • The approach taken by the draftsmen in this regard is broadly in line with that of the Law Reform Commission, though surprisingly does not follow its recommendation in relation to specialist training. There should be a statutory provision providing for the licensing, regulation and supervision of the mediation profession, such as statutory scheme providing for the licensing regulation and supervision of trained and qualified and accredited mediators, accredited by recognised bodies. Otherwise, “cowboys” can simply label themselves as “mediators” and potentially cause havoc, at the parties’ expense, thereby injuring the reputation of mediation and professionally trained and accredited mediators.  An example would be former “money managers” who would now seek to market themselves as “debt mediators”.
  • Head 8 (2)(b)&(c)  – provision of details regarding continuing professional development – as part of statutory provisions providing for the licensing, regulation and supervision, CPD should be mandatory – remove “if any” and likewise remove ”if any” in 8(2) (b) and 8(2) (c).
  • Head 9 (1) (a) – Minister publishing a Code of Practice – There could be a general / default Code of Practice promulgated, but allowance made for specific approved Codes, such as the Code of Practice from the Chartered Institute of Arbitrators.
  • Head 9 (8) – TO BE INSERTED: – “(8) A mediator shall, prior to the commencement of the mediation process, provide to the parties, in writing, details of the (published or approved) code of practice to which he or she adheres, which code of practice shall be deemed to form part of the terms on which the mediator is engaged by the parties.” – This would make the published or approved code part of the contract of engagement.
  • Head 12 (1) (b) (ii) – attendance at information sessions – Obligatory attendance at an information session on mediation (and its advantages), (as distinct from obligatory participation in dispute resolution through the mechanism of mediation), will not detract from the overall voluntary nature of mediation. Such a provision would ensure the parties are fully informed in their choices as to whether to proceed with the option of mediation, or not.  At the moment, a major difficulty in promoting mediation is the fear of lawyers that it will adversely affect their litigation practice income, (i.e. reduce the amount of costs they could hope to receive in relation to acting on behalf of the client (as compared to fees that might accrue during litigation)) and there is a tendency to “water down” any mention of mediation.  There should be provision for the Minister to specify by statutory instrument, approved bodies, such as CIArb who would provide such information sessions.
  • 17.  Head 12 (5) – the Court’s consideration of costs – ADD TO THE SECTION: – “In the absence of evidence to the contrary, it shall be presumed that mediation has a reasonable prospect of success”. This would make clear that it is the obligation of a party to litigation who chose not to avail of mediation, to explain why it would have no “reasonable prospect of success.”
  • Head 13 (1) – Mediator’s report to Court – this requires a mediator to prepare a report for court. The neutral nature of this report should be emphasised, as recommended in the LRC report.  

Chartered Institute of Arbitrators (Irish Branch)

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

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

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

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

The Case Resolution Officer will:

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

The Case Resolution officer will not:

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

Key Features of the service

The service is confidential.

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

The service is independent.

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

The service is free.

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

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

It never happens to….people like you!

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

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

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

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

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

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

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

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

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

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

These things always happen to someone else.

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

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

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

But if your friends ARE the worrying type….

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

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

                           pat.brady@workplacesolutions.ie

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

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

NERA publishes Annual Report for 2011

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The National Employment Rights Authority has today (March 20th) published its annual report for 2011.

We will publish a commentary shortly but in the meantime you can read the report here

Some headlines:

NERA report says only 1% of inspections result in prosecutions

2011 saw 5,591 NERA inspections involving 100,000+ employees. (2010; 7,164 cases). Unpaid wages recovered was €1,905k (2010 €1,250k).

Minister reports ‘good story’ on employment rights reform

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On a day when there was some silliness in the air about Ministerial ‘report cards’ Richard Bruton returned to UCD, the location of his announcement last July at the UCD Law School/Employment Law Association of Ireland event on his plans to shake up the employment rights bodies to give an update on what he had been doing in the meantime.

The Minister for Jobs, Enterprise and Innovation would be getting ‘A’s for effort and achievement on his ‘report card’!

Speaking at the IRN annual conference in UCD (www.irn.ie, no serious practitioner should be without a subscription!) the Minister told the attendance that he had ‘a good story to tell’ about the journey since that announcement.

He first outlined the principles underlying the project.

‘High standards in the workplace and good employment rights give us competitive advantage’ he said. ‘While the voluntary system is good up to a point the absence of a means to vindicate rights would undermine confidence in the system’.

He repeated the widely shared criticism of the current system as having too many routes of entry, of engaging parties in the adversarial process too early and of being too legalistic and costly.

His key priorities were early intervention, speedy adjudication when it reaches the adversarial stage and credible enforcement.

The Minister’s ‘good story’ included confirmation that the 30 complaints forms had now been reduced to one and the five portals of entry to the system also down to one.

There is a single website www.workplacerelations.ie

Employers are now notified in 48 hours that a claim has been lodged (this could have been 8 months according to the Minister and also in this writer’s experience. Long after the ‘safety’ of the six month deadline had passed one could learn that a claim had been lodged).

And this Minister ain’t finished yet!

The next phase will include the option of inputing a claim on line, and a pilot project of the new system ‘within weeks’.

The shape of the new system in three stages will be early resolution (mediation); inspection by the newly titled ‘Compliance Officers’ of NERA (better than ‘Inspectors’, the Minister feels) who will seek voluntary compliance and may impose ‘on the spot’ fines rather than drag an employer through the formal processes.

Stage three will be adjudication initially by a single person adjudicator with the option of a de novo appeal hearing at a three person tribunal in a newly vamped Labour court, it would seem.

And it doesn’t stop with the structures.

The Minister promised a decision from the first instance hearing within 28 days, and a database of ‘case law’ which parties can consult for reference.

Interestingly, as I understood him these adjudicators will be sought from suitably qualified people selected by open competition.

The Minister has promised that legislation to underpin all this will be on the statute books in the autumn with a consultative document to be published by the end of this month (March).

The Minister ended with a strong endorsement of the public service team which had taken this project so far.

He said he had often referred to the public service as containing ‘committed and talented people trapped in a system which had failed them’. He paid a tribute to those led by Ger Deering who had driven the reform process.

An interesting discussion followed with contributions from Kevin Duffy, Chairman of the Labour Court, Kieran Mulvey Chief Executive of the LRC, Ger Deering, Director of the Reform process, Brendan McGinty of IBEC and Tom O’Driscoll BL who heads up the Legal unit at SIPTU. All agreed that these were ‘landmark’ developments and in Kevin Duffy’s words ‘looked like they will happen’ a reference, one assumes to previous discussions about reform failing to get beyond the starting gate

I have one question (and it has been discussed in a recent blog). Within the commercial sphere the courts have powers (and in the UK have used them) to ‘punish’ parties who unreasonably refuse to attend at mediation or mess about when they are there.

What incentives will there be to use the early resolution service, or, based on the Halsey case principles (and others) and the likely application of Order 56A of the Rules of the Superior Courts  what adverse consequences might flow for not doing so?

Kieran Mulvey went a step further (backwards, in a way) to say that there was a need to bring solutions back to the workplace, and said that the continued juridification of the process is not helpful, a point echoed by Brendan McGinty who noted that behind the issue of employment rights is the issue of workplace relations.

Here at Workplace Solutions we are really in favour of, well workplace solutions!

Press Statement from CIArb Irish Branch on Mediation Bill

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Press Statement

 The Irish Branch of the world’s largest dispute resolution body, the Chartered Institute of Arbitrators has given a warm welcome to the publication this week of the outline of the Mediation Bill. The Irish branch of CIArb has about 750 members qualified in all areas of dispute resolution, (including mediation, arbitration, conciliation and adjudication).

This follows the Law Reform Commission Report in 2010 and commitments in the Programme for Government to improving dispute resolution and reducing legal costs.

Pat Brady, Chairman of the Irish Branch of CIArb commented;

This is an important day for Irish business. It would be easy to underestimate the significance of the statutory underpinning of mediation as a means of resolving disputes throughout the economy, in family and employment matters also.

Professional mediators, such as our mediator members, deploy a range of skills and techniques which, in the vast majority of cases, aid parties in dispute to resolve their differences in a positive way, that not only keeps them out of the courts and away from crippling legal costs, but which can sometimes avoid the negative destruction of relationships. Many judges have spoken strongly in favour of mediation, not simply as an alternative to the legal system but increasingly as a vital part of it in achieving justice for those involved.

We welcome the provision for lawyers and the courts to encourage parties into mediation, (with a possibility of financial consequences if they do not).

The following are highlights in the proposed Bill:

  • Solicitors and barristers must tell clients about the possibility of using mediation as an alternative to commencing court proceedings;
  • Confidentiality is required in all communications between parties to mediation;
  • Participation in and conclusion of mediation will be voluntary;
  • A statutory basis for the courts to invite parties to consider mediation and to adjourn court proceedings for the duration of the process.
  • A requirement that mediators advise parties of their qualifications.

Mr Brady especially welcomed the requirement that mediators have high level and specialised training and operate under a code of conduct.

‘CIArb accredited mediators are trained to an international standard and operate under the Institute’s Code of Conduct and its Charter, and we provide additional training in workplace mediation for example. We will be making a submission to the Oireachtas committee on Justice & Equality in due course on operational aspects of the Bill’

he concluded.

Ends

Further Info: Pat Brady 086 258 7940 pat.brady@workplacesolutions.ie

CIArb 01 707 9739, ciarb@arbitration.ie

Anne-Marie Blaney 087 60 2262.  annemarieblaney@gmail.com

Alan Shatter announces ‘general scheme’ of a Mediation Bill

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The Minister for Justice, Equality and Defence Mr. Alan Shatter, T.D. has said “The Mediation Bill will give effect to the undertaking in the Programme of the Government for National Recovery (2011 – 2016) to encourage and facilitate the use of mediation to resolve civil, commercial and family disputes.”

The Minister added “The general objective of the Bill is to promote mediation as a viable, effective and efficient alternative to court proceedings thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress involved in court proceedings. I am anxious to ensure that individuals and companies engaged in a dispute regard resolution of their dispute through mediation as preferable to court litigation.”

The General Scheme builds on the recommendations of the Law Reform Commission in their ‘Report on Alternative Dispute Resolution – Mediation and Conciliation’ which you can read here

The following are highlights in the proposed Bill:

· the imposition of a statutory requirement on solicitors and barristers to tell clients about the possibility of using mediation as an alternative means of resolving disputes prior to commencing court proceedings;

· a requirement that all communications between parties as they try to resolve a dispute using mediation shall be confidential;

· it will remain for the parties themselves to decide whether to engage in mediation and, indeed, to decide on the terms of any agreement arising from the mediation;

· the provision of a statutory basis for the courts to invite parties to consider the mediation option and to adjourn court proceedings for the duration of the process.

-a requirement that mediators advise parties of their qualifications.

The draft Bill is to go to the Joint Oireachtas Committee for Justice, Defence and Equality which has to forward its views prior to finalisation of the Bill and the Minister is asking the Committee to revert to him no later than the 1 June next.

The Bill extends to employment disputes but not if they have already been referred to the Labour Relations Commission

Should fees be introduced for EAT hearings etc. The UK is planning to do so

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Given that our own employment rights structures are undergoing serious review and surgery it is interesting to see that the UK government is planning to introduce fees for lodging and pursuing cases at the employment tribunals. (Note that the EAT in the UK is presided over by a High Court judge, it is not the same as the Irish EAT; the UK equivalent of which is the Employment Tribunal.

Many Irish employers (especially small companies) complain about the system here being stacked in favour of the employee, specifically the facility with which employees can make claims.

They would doubtless welcome a deterrent to mischievous or flippant claims, and according to recent research carried out by HR Magazine (UK) they believe that will happen as a result of introducing fees. (Read the report here).

That said employers would not be the only beneficiaries of rooting out such claims.  Genuine claimants waiting a long time for an EAT outcome would also benefit. There are of course arguments against such fees.  Claimants, for example recently dismissed or redundant employees should not be impeded in making their claim (although the delay in getting it heard is a more serious issue than any fee that might be charged).

It ought to be relatively easy to devise a system for exemptions.

In my submission to the Employment Rights review I made a strong case for the extension of mediation at all levels of the system.  Looking at the question of fees from a different and more positive point of view in order for mediation to develop as an alternative to adjudication in employment disputes a big problem is that there is no real financial incentive to settle.

The opposite is the case in commercial disputes where disputants face the costs of litigation and the additional threat of an adverse finding on costs even where they succeed in the courts if they have unreasonably refused mediation. (Sup Cts Order 56A in Ireland, Halsey v Milton Keynes Trust in UK,)

So costs are seen in the wider justice system as a means of incentivising parties to mediate.  What about a fee system which could be waived in the event that parties entered into mediation in good faith?

This might also tend to discourage the presence of lawyers at early stages of employment rights disputes where, frankly, they are often no addition. One could go further. Both the Rights Commissioners and the EAT (or whatever we end up with) could be empowered with ‘Order 56A’ type powers to adjust downward awards to claimants who refuse to mediate at an early stage. I have been involved in a recent EAT case where the award to a successful claimant was reduced by 20% because he did not use the internal appeals procedure. Extending the logic of this to failure to engage with mediation is hardly a giant step.

Radical perhaps, but radical is needed!

Since posting this initially a number of colleagues have commented on Linkedin on the financial benefits to employers of using mediation in terms of time saved etc. This is a good point but underscores the point that the benefits of mediation are still not fully appreciated and embraced by many employers.

However most claims are triggered by employees and more carrot and a little stick is what is being floated here!

So now we take a look at the UK proposals.

The UK Consultation document is here

Fee Levels – Employment Tribunal The first step will always be to categorise the claim as between minor or ‘straightforward’ cases (Payment of Wages etc), Unfair Dismissal as the second category and then more serious disputes (TUPE) etc are thurd.  In relation to Option 2 (below), there will be a fourth fee level for any claim exceeding £30,000 in value.

Option 1 Under this option, the Claimant would have to pay both a fee for issuing the claim and a fee for a hearing. If the incorrect fee is paid when issuing a claim, the Employment Tribunal will reject the claim.

The claim could then be struck out if the Claimant fails to pay the correct, or any, fee for the matter to proceed to a hearing. The fees payable by the Claimant will depend on how the claim is categorised and they range from UK£150 to £250 to lodge a claim and £250 to £1250 for a hearing (£1000 for an Unfair Dismissals case)

Under Option 2, the Claimant would only have to pay a fee for issuing the claim.  However, the size of the fee would depend on the Claimant’s assessment of the value of the claim, with the intention that this will provide employers with greater certainty about the potential liability they could face.

Option 2 The consultation paper suggests that a subsequent award given by the Tribunal in the event that the Claimant is successful could not exceed the assessment value, even where the Tribunal decides that it should do so.  A Claimant will therefore have to take great care to pitch the value of his claim correctly: too high and he will have to pay a higher fee; too low and his award will be limited.  The consultation paper gives an indication of the fees likely to be payable in respect of claims of different value, as follows:

Refunds In general fees outlined above would be non-refundable.  However, the Tribunal might be given a discretion to order the unsuccessful party to reimburse the fees paid by the successful party.

Fees for Applications In addition to proposals to introduce fees for lodging claims, the Government has also indicated that it is considering the introduction of fees for making specific applications: This fee would be submitted at the time the application is made.  If the requisite fee is not paid, and the party is not eligible for the Remission Scheme, (see below), the application will not be processed.

EAT Fees The proposal is that Appellants to the EAT will have to pay an Issue Fee of £400 and a Hearing Fee of £1200. (Again bear in mind this is not the equivalent to an Irish EAT but is at the level of the High Court)

Courts & Tribunals Remission Scheme The Remission Scheme currently operates in the civil courts to provide individuals with a full or partial exemption from paying Court fees subject to certain eligibility criteria.  It is proposed that this scheme will be extended to proceedings in the Employment Tribunal and EAT.  Remission will be granted without proof in emergency situations.  Of most interest to employers is the fact that those in receipt of income support / job seeker’s allowance – highly likely where an individual has lost his job – will receive full exemption from the new fees.

Multiple Claims The proposals also envisage that different fees will apply where there are multiple Claimants.

So what do you think? Clearly the main thrust of these proposals is to reduce the cost burden on employers. Nothing wrong with that in principle (as employees gain from more profitable businesses too) if the application of employment rights is not affected and disputes arising are resolved expeditiously. Employees should not be bullied out of pursuing their rights on financial grounds and yet there is a level of abuse of the system which fees might help reduce.

But its a negative way of approaching dispute resolution. The increasing claims culture is not exclusively an outcome of litigious employees, but a failure of dispute resolution processes and skills.

Interested in qualifying as an accredited mediator?

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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 ciarb@arbitration.ie or pat.brady@workplacesolutions.ie.

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

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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,  

Chairman.

CIArb Irish Branch