Tag: Mediation

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”

Dept of Jobs etc (DJEI) announces changes on employment rights reform.

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Initially Issued Dec 29th; See update below received on Jan 6th regarding Equal Status cases The important changes promised by Richard Bruton will be implemented shortly in the delivery of the State’s Employment Rights and Industrial Relations Services (Workplace Relations Services).

Background

Mr. Richard Bruton, T.D. Minister for Jobs, Enterprise and Innovation, commenced a programme of reform of the State’s employment rights and industrial relations procedures during 2011.  His aim is to establish a world-class workplace relations service and employment rights framework by streamlining the existing structures, procedures and mechanisms and establishing a simpler structure while building upon the recognised strengths of the existing systems.

The overall objective of the reform is to encourage early resolution of disputes, the vindication of complainants/employees rights and minimisation of the costs involved for all parties – respondents/employers, complainants/employees and Government – in terms of money, time and workplace productivity. The workplace relations bodies included in the reform programme are the National Employment Rights Authority (NERA), the Employment Appeals Tribunal (EAT), the Labour Relations Commission (including the Rights Commissioner Service), the Equality Tribunal and the Labour Court.

This is a very ambitious reform programme and the Minister set some very challenging targets, the first of which will be achieved by the introduction next week of a new Website, a Single Complaint Form and a Single Point of Contact.

Interim Website

An interim Website (www.workplacerelations.ie) will, from 4th January, 2012, provide information on employment, equality and industrial relations legislation and associated public services. The websites of the five existing workplace relations bodies will remain in place pending the establishment of the fully fledged Workplace Relations website towards the end of 2012.

Single Complaint Form

A Single Complaint Form for all first instance individual complaints and referrals to the Rights Commissioner Service, the EAT, NERA, the Equality Tribunal and the Labour Court will be available from January 4th, 2012. This new form  will  replace 30 existing complaint forms that currently accommodate over 80 specific complaint types. The Form will be available through both the interim website and the five existing websites.  Complainants can complete the Form on their system, print and sign it for postal submission and save a copy for their own records.

Single Point of Contact

A Single Point of Contact will commence operations from January 4th. This new service, to be called the  Workplace Relations Customer Services of the  Department of Jobs, Enterprise & Innovation, will have the responsibility for a) information provision in relation to employment, equality and industrial relations rights and obligations, b) the receipt and registration of all first instance complaints currently referred to the five workplace relations bodies, and c) dealing with enquiries concerning the status of complaints and associated procedures and processes. Workplace Relations Customer Services can be contacted at Lo Call 1890 80 80 90 or through the eForm on www.workplacerelations.ie

Further Reforms

A range of further structural and procedural reforms are planned for 2012.  These will include the establishment of a Workplace Relations Early Resolution Service, the objective of which will be to seek resolution of complaints as an alternative to a formal adjudication hearing or an inspection. Work is currently underway on the design and implementation of a Pilot Early Resolution Service to commence in the first quarter of 2012.

Equal Status cases

As a result of a query from Workplace Solutions the following reply was received from the Department on Jan 6th.

It is intended that all the existing services  of the Equality Tribunal, including equal status complaints (non-employment rights) will be accessible through the Workplace Relations Website, Customer Services contact point and the Single Application Form.

The reform programme will see a new two-tier structure with one body of first instance and one appellate body established to deal with all employment related matters. While this new structure will deal with all employment equality matters  no decision has been reached in relation whether the new structure will deal with equal status complaints or whether they could be more appropriately dealt with by another body.  

This matter is under active consideration and a policy decision is expected in the near future.

Contacts

Further information on the reforms and on the new services to be introduced from January, 2012 is available at www.workplacerelations.ie by calling 1890 80 80 90 or by replying to this email.

Or if we can help or advise contact; pat.brady@workplacesolutions.ie


Dispute Resolution in Australia; CIArb President paper

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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 pat.brady@workplacesolutions.ie

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 <http://www.nadrac.gov.au/> at 4 November 2011.

[10] National Alternative Dispute Resolution Advisory Council, National Mediation Accreditation System <http://www.nadrac.gov.au/>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

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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

Mediation in Australia; What can Ireland learn?

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This week the Chartered Institute of Arbitrators is hosting an international conference on Thursday and Friday 10/11th November. (There are now 99 delegates from 21 countries registered for this event!)
(More on that on www.arbitration.ie)
The World President of CIArb Professor Doug Jones who is a distinguished Australian lawyer will be in town for the event and he has agreed to address a seminar on Saturday 12th on;
 “Mediation in Australia: What Can Ireland Learn from Australia’s Promotion of Mediation?”
Australia has pioneered many important developments in ADR; hybrid mediation/arbitration processes, mediation in criminal cases, the recent Quantas case highlighted its Industrial disputes resolution processes.
The event will be chaired by Mr Justice Paul Gilligan, judge of the High Court.
As you know we will have legislation next year to regulate mediation, including in employment disputes.
The event takes place at 11.30 am on Saturday November 12th, the Radisson Hotel, Golden Lane and costs €35 including lunch.
Book at 01 707 9739. Discount for multiple bookings.

The EU Cross Border Mediation Directive

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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)