On 16 November, the Law Reform Commission (LRC) launched two Reports, one on Alternative Dispute Resolution: Mediation and Conciliation, and the other proposing Consolidation and Reform of the Courts Acts. The function of the LRC is to keep the law under review and to make proposals for reform. To date about 70% of the LRC’s proposals have led to reform of legislation.
The main recommendation in the Report on Alternative Dispute Resolution: Mediation and Conciliation is that a Mediation and Conciliation Act should be enacted to provide a clear framework for mediation and conciliation. The Appendix to the Report contains a draft Mediation and Conciliation Bill.
The Bill clearly sets out the scope of mediation and conciliation, proposing to define in legislation these two alternative dispute resolution (ADR) processes which are being increasingly used. “Mediation” is defined in the Bill as “a facilitative and confidential structured process in which the parties attempt by themselves, on a voluntary basis, to reach a mutually acceptable agreement to resolve their dispute with the assistance of an independent third party, called a mediator”.
It further defines “conciliation” as “an advisory and confidential structured process in which an independent third party, called a conciliator, actively assists the parties in their attempt to reach, on a voluntary basis, a mutually acceptable agreement to resolve their dispute”.
The distinction between mediation and conciliation is that a mediator typically does not make recommendations in the event that the parties fail to resolve their dispute, whilst a conciliator is typically empowered to do so (but is not empowered to impose such a proposal).
The Bill provides that the processes of mediation and of conciliation may be used by the parties either on their own initiative, independently of court proceedings, or where a court “suggests” one of the ADR processes after court proceedings have begun.
The Bill actively promotes the use of ADR processes as an alternative to litigation by providing that a solicitor has a duty to advise a client, prior to initiating any civil or commercial proceedings, to consider mediation or conciliation, and further requiring a person, when commencing civil or commercial proceedings, to sign a certificate confirming that mediation or conciliation (or both), have been considered as processes for settling the dispute.
The Bill also provides that, in awarding costs, the Court may have regard to any unreasonable refusal of any party to consider using mediation or conciliation where such a process had, in the Court’s opinion, a reasonable prospect of success.
The LRC envisages, through the publication of the draft Bill, the development of an integrated approach to dispute resolution in ADR complements the role of the courts. Along with the recent publication of the new High Court rules on mediation and conciliation*, the Bill should serve to heighten public awareness, as well as that of legal practitioners, of the availability of ADR as an effective means of resolving disputes.
The other Report published by the LRC on Consolidation and Reform of the Courts Acts proposes that 240 Courts Acts should be replaced by a single Courts Act, to regulate the conduct of court proceedings. The provisions in the draft Courts (Consolidation and Reform) Bill, appended to the Report, further promote the use of ADR. The Bill provides that those involved in civil proceedings must comply with “case conduct principles”. It requires the parties to identify and narrow issues at as early a stage as possible, and for proceedings to be conducted in a manner that is just, expeditious and likely to minimise costs, and for the parties to be encouraged and facilitated in using ADR procedures where appropriate.