THE USE of mediation and conciliation should become an integral part of the civil legal system, according to the Law Reform Commission.
In a lengthy consultation paper, which will be launched by Mr Justice Peter Kelly this evening, the LRC outlines the theoretical basis and practice of various forms of alternative dispute resolution (ADR) and the experience of it in other jurisdictions where it has been strongly encouraged in recent years.
It points out the lack of clear definition of what is meant by alternative dispute resolution in Ireland, though it is widely used in industrial relations, certain consumer disputes and sometimes in medical and family disputes.
The alternative of mediation was highlighted recently when the land dispute between the Kenny and Charlton families in Dalkey was eventually settled through mediation, following a suggestion during court proceedings by the trial judge, Ms Justice Harding Clark.
The LRC stresses that the two main forms of alternative dispute resolution, mediation and conciliation, must be voluntary, though it examines ways in which parties can be encouraged to engage in it. These range from mandatory information sessions on alternative dispute resolution, especially in the context of a family law dispute, to costs penalties imposed on those who refuse to consider it. It invites submissions on the use of costs penalties here, but urges against them in family law disputes.
It also points out that there is no mandatory training for mediators, and that the area is not regulated, and strongly recommends both training and regulation, with a non-statutory system of accreditation.
It reiterates recommendations it made 12 years ago in relation to family law that information on alternatives to litigation be provided to all those involved in family law disputes, and that this be linked to the courts. It invites submissions on whether children should participate in mediation proceedings affecting them.
It recommends the establishment of a court-accessed mediation scheme in the District Court on a pilot basis.
Mediated or conciliated agreements should be enforceable by the courts, and the courts should also be able to review them.
The commission examined the use of mediation in medical disputes, and points out that often an apology and explanation is what the injured party requires. It recommends legislation to permit medical practitioners to offer these without them being regarded as admissions of liability in a medical negligence case.
The commission has invited submissions, based on its recommendations and on the issues it raises, to be made before the end of October.