Alternative,Dispute,Resolution law Alternative Dispute Resolution and the Irish Commercial Cour

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Normal 0 MicrosoftInternetExplorer4 st1:*{behavior:url(#ieooui) } /* Style Definitions */ table.MsoNormalTable{mso-style-name:"Table Normal";mso-tstyle-rowband-size:0;mso-tstyle-colband-size:0;mso-style-noshow:yes;mso-style-parent:"";mso-padding-alt:0in 5.4pt 0in 5.4pt;mso-para-margin:0in;mso-para-margin-bottom:.0001pt;mso-pagination:widow-orphan;font-size:10.0pt;font-family:"Times New Roman";mso-fareast-font-family:"Times New Roman";}An article in the current issue of the Arbitration and ADR review, AlternativeDispute Resolution and the Commercial Court, written by the judge incharge of the list, Mr. Justice Peter Kelly, gives an interesting insight intothe history, role and effectiveness of mediation in the Commercial Court. When the court was first established oversix years ago, the rules provided that the proceedings could be adjourned for28 days to allow the parties engage in the process of mediation, conciliationor arbitration. It appears that mediation has been the most utilised andpopular ADR process to date.We learn from Mr. Justice Peter Kelly that the wording for the rules waschosen carefully, after considerable consultation and principally with judgesand practitioners in the Commercial Courtin Belfast, Londonand Edinburgh. The Commercial Court in Londonhas been in existence for well over 100 years. The judges and practitioners inthese jurisdictions were all agreed on the importance of the voluntary natureof the alternate dispute resolution process, that you cannot force litigants togo to mediation and if you do, it may not achieve the desired result.Six years on, every practitioner in the Commercial Court now knows how the rules operate and in alllikelihood on the application to have the matter entered into the list or atthe next directions hearing, the court will be informed that the parties have agreedto engage in mediation. The court will then want to know the name of themediator and the date of the mediation.The Question of When to Refer to Mediation?Judge Kelly writes that there is no hard and fast rule here but hisexperience over the last six years in the Commercial Court seems to indicate that the parties stand abetter chance of a successful mediation if the referral takes place subsequentto the delivery of pleadings and before discovery of documents. In disputesinvolving family members, that might be a typical Section 205 application underthe companies acts, Judge Kelly has found that the earlier the parties are sentto mediation the better.On The Standard of MediatorsMr. Justice Kelly notes that the standard is very good, but highlights twoparticular problems. One, “in some cases persons are being chosenas mediators who had no formal training in the art. They do not have anappreciation of what mediation is about. Very often they do more harm than goodand just add an additional layer of costs because the mediation will not besuccessful. These cases are becoming fewer because practitioners appreciatethat if the mediation is to be successful, a trained and preferably anexperienced mediator is much more likely to achieve success than one who isnot.”The other problem that arises is that some mediators have become verypopular, their services are in demand and they may not be able to facilitatethe parties. However, on certain occasions when this arose, the Commercial Court was in a position to offer a trial of theaction faster than the mediator could arrange the mediation.Recent Cases Involving Mediation in the Commercial CourtIn 2009, there was a substantial increase in the number of cases seekingentry into the commercial list, 373 and the average time between entry into thelist and the conclusion of the action is 21 weeks. According to Commercial Court statistics, 25% of cases are concluded inless than four weeks with 50% of cases finishing in less than 15 weeks and 75%of cases are brought to an end in less than 32 weeks. 90% of commercial Courtcases are concluded in less than 50 weeks.The Commercial Courtstatistics contrast sharply with the courts in India,where it will be 2330 by the time Indian courts, working at their current pace,clear the extreme backlog of cases that exists today. This interestingobservation was made by Indian Justice V.V. Rao in an address on E-Governanceto the judges there. Mr. Justice Rao painted a very bleak picture going forwardand said the system must change if they are to reduce the backlog within thenext 320 years. The judges in Indiahave been encouraging litigants to look towards alternative dispute resolutionbut progress has been slow.Mr. Justice Rao said that the average caseload for each judge is in oraround 2,145 cases and given the amount of cases settled through mediation in Bangaloreand Delhi alone, this would relieveeight judges of all the cases in their hands right now. This is just the startin the relief that mediation can allow for the justice system. The next step isto take mediation to the district levels in each state, which will hopefullyfurther reduce the backlog of 320 years.The first case in the Irish Commercial Courtinvolving mediation was in 2005, it concerned a commercial property disputewhich had been long-running and bitter. It was brought to an end within threeweeks of being referred to mediation.The case of The Dubliners (Baycourt) Limited and Ors v. EMI RecordsIreland Limited was entered into the Commercial Court list on Monday, 13th November 2006. It was adjourned on thatoccasion to allow mediation to take place, the mediation was successfullycompleted on Thursday 16th  November, 2006. This case probably holds the record in that withinthree days of the case being entered in the Commercial Court, the mediation having been successfullycompleted and the agreement reached between the parties.Also mentioned in the article is a case involving Carlow CountyCouncil and Nesselside Builders Ltd which on thesuggestion of Mr. Justice Kelly was referred to mediation. It involves adispute over a small piece of land but that was holding up the completion of amajor road development. The mediation was successful and accordingly avoidedlengthy and expensive litigation.It is now widely expected that similar rules to the Commercial Courtwill  be introduced in the High Court in November 2010, The Rules of theSuperior Courts (Mediation and Conciliation) 2010, introducing a new rule 56A.On the 2nd March 2010the Chief Justice John Murray, speaking at the DublinSolicitors’ Bar Association launch of its family mediators group, said thatmediation “is in a sense an antidote to a too casual recourse tolitigation not only as a first but as the only option.”Since January 1, 2010, wehave the Circuit Court Rules (Case Progression (General), 2009. Caseprogression is a relatively new mechanism used by the courts. These rulesfacilitate the progression of the case to ensure that proceedings are preparedfor hearing in a manner which is just, expeditious, economical and that courtresources are employed optimally. Section 7 of these new rules enables theJudge or County Registrar,or one of the parties on application, to adjourn proceedings and invite theparties to use mediation.The Multi-Units Development Bill, 2009 – This proposed newApartment Management Company Bill will change the way disputes are handled forover 500,000 members of apartment management companies, investors and tenants.On the application by a party at any stage in the proceedings, the Court mayrefer the parties to mediation. Recent changes to the Bill at Reportstage  in the Dail, will provide that the Court of its own motion canissue a direction to the parties to engage in mediation.Further developments expected in December 2010 or perhaps early 2011, willbe the Law Reform Commission Report on ADR  and a new Mediation ADR/ Bill.There will be pressure on the government to have this legislation enactedbefore 21st  May 2011to comply with the European Directive on Mediation. The EU Directive wasadopted by the European Parliament in 2008 and seeks to encourage the use ofmediation in civil and commercial matters regarding all member states ofEuropean Union.Brian WalkerBLOctober 2010 Normal 0 MicrosoftInternetExplorer4 /* Style Definitions */ table.MsoNormalTable{mso-style-name:"Table Normal";mso-tstyle-rowband-size:0;mso-tstyle-colband-size:0;mso-style-noshow:yes;mso-style-parent:"";mso-padding-alt:0in 5.4pt 0in 5.4pt;mso-para-margin:0in;mso-para-margin-bottom:.0001pt;mso-pagination:widow-orphan;font-size:10.0pt;font-family:"Times New Roman";mso-fareast-font-family:"Times New Roman";}Article URL:http://www.cpdseminars.ie/articles/alternative-dispute-resolution-and-the-commercial-court/ Normal 0 MicrosoftInternetExplorer4 /* Style Definitions */ table.MsoNormalTable{mso-style-name:"Table Normal";mso-tstyle-rowband-size:0;mso-tstyle-colband-size:0;mso-style-noshow:yes;mso-style-parent:"";mso-padding-alt:0in 5.4pt 0in 5.4pt;mso-para-margin:0in;mso-para-margin-bottom:.0001pt;mso-pagination:widow-orphan;font-size:10.0pt;font-family:"Times New Roman";mso-fareast-font-family:"Times New Roman";}Author blog and website:http://www.cpdseminars.ie