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Circuit Court Referred Arbitration, Conciliation Or Mediation In 2011.

By Arran Dowling-Hussey1

Court Referred ADR

This article will not discuss in any meaningful way the procedure of arbitration, conciliation or

mediation or indeed any other dispute resolution method.2 Rather it looks at certain practical

aspects of the practice of court referred arbitration, conciliation or mediation. The degree to

which judges have referred cases and/or pre trial motion to a third party neutral, in the

Commercial Court since 2004 is well known and as a result it is submitted that this practice is a

well understood feature of that particular court list and does not need to be considered herein.3 It

is however suggested that it would be of help if more focus was given by legal practitioners to

the implications of S.I No 539 of 2009 in terms of the case management of litigation with a far

lesser value than that which normally applies in the Commercial Court namely Circuit Court

cases.4

Court Referred ADR At A Circuit Court Level.

Circuit Court cases are a significant feature of the working day of many barristers and solicitors;

indeed it is suggested that members of the public who are involved in a civil court case are on

balance more likely to appear as a party, witness or attend in support of a friend or family

member at this level rather than in the Superior Courts. Like any court list there is often a longer

1 Arran Dowling-Hussey is a Barrister & Arbitrator based in the Law Library, Dublin & also at Clarendon Chambers, London. He is the co-author of Arbitration Law (Thomson Round Hall, Dublin 2008) and has written or co-authored 20 journal articles which in the main deal with ADR. In the 2010/2011 academic year he lectured in Dispute Resolution at Dublin City University. He is a member of a number of domestic and international arbitral panels and also serves on a number of ADR based committees or working groups both in Dublin and London. 2 This note discusses the actual practice and procedure of mediation, conciliation and arbitration in a very limited manner for a fuller discussion of these issues see inter alia: ‘The effect of the proposed directive on certain aspects of mediation in civil and commercial matters on Mediation in the United Kingdom and the Republic of Ireland .’ Dowling-Hussey, A [2006] 6 Euro C.L at xi to xv, ‘Conciliation: coming out of the shadows.’, Dowling-Hussey, A Commercial Law Practitioner, (2009) 46(3) CLP 48 and ‘The Irish Law of Arbitration an overview.’ Dowling-Hussey, A and Dunne, D. Irish Law Times [2007], Volume 25, Issues 10-13. 3 See inter alia Larry Fenelon’s chapter in Dowling, S. Commercial Court (Thomson Round Hall, Dublin 2008) 4 For a limited discussion of the Circuit Court’s jurisdiction, which is never the less more fulsome than is possible in this note see http://www.courts.ie/courts.ie/library3.nsf/pagecurrent/a5fb67b6ceaee18780256d87005050ce [accessed 1, February 2011]

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delay in getting a case on for hearing before a Circuit Court judge than is expected and it can

then arise on the day of the scheduled court hearing that for a number of reasons the litigation is

not then disposed of or disposed of in its entirety. Thereafter it is open to the dissatisfied party to

bring an appeal to the High Court causing further delay and expense. Delays of the type just

mentioned can cause more stress, expense and lost time than the parties to the dispute first

expected. Time lost like this is time which has a value wherein the parties would normally prefer

to be addressing some other matter: and this other matter which is foregone may have a financial

cost. S.I No 539 of 2009 has the potential to alter this landscape.

S.I No 539 of 2009.

Under S.I No 539, The Circuit Court Rules (Case Progression (General)) of 2009, a Circuit Court

judge can introduce a short cut to the foregoing process in that in general, subject to the terms of

the statutory instrument, they can refer a case to an arbitrator, conciliator or mediator. This can

be done of their ‘own motion5’ or on foot of an application to the Circuit Court by one or more of

the parties. Notwithstanding the reference to 2009 in the statutory instrument’s title the measure

has only been in effect since the 1st January, 2010 and therefore has been in operation for a little

over a year. The statutory instrument operates by amending the Circuit Court Rules.

Order 19(A), Rule 1(2) sets out those types of cases that fall under the terms of the Order and

therefore delineates those proceedings which can, or can not, be the subject of a case progression

direction by a Judge or a County Registrar. It follows that if a case can not be subject to a case

progression direction, logically the Judge, or County Registrar, can not then direct that the

parties mediate, conciliate or arbitrate their dispute under Order 19(A). It is perhaps easier and

more succinct to outline those cases which fall outside the scope of Order 19(A) rather than to

list each and every type of case that is in fact subject to the terms of Order 19(A). Most but not

all cases can fall under the umbrella of Order 19(A), but proceedings to which Order 59, Rule 4

and Order 5B apply are specifically excluded.

5http://www.courts.ie/rules.nsf/6cc6644045a5c09a80256db700399505/3fa0d9ef770a1ada802576a2005734d6? OpenDocument References to subsequent Rules will not hereafter be footnoted, unless the reference is to text from the Rules, and all such rules can be found by using the Court Services website: http://www.courts.ie/rules.nsf/CircuitRules?OpenView

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Certain types of Circuit Court family law proceedings are excluded because of the terms of

Order 59, Rule 4 and actions for possession and well charging reliefs as described in Order 5B

are also excluded. This approach is to be expected and is sensible. It is well established that

Alternative Dispute Resolution’s (ADR) writ does not run in each and every nook and cranny of

the law. In the case of arbitration discussion focuses on what is or isn’t arbitrable and this idea is

perhaps one which many lawyers are somewhat familiar with whereas specialist texts can offer

advise on what may or may not be subject to a mediation or conciliation process.6

S.I No 539 of 2009: One Year On Is It Being Used In The Circuit Court?

Referral of a Circuit Court case by a judge to an arbitrator, conciliator or mediator is still a

relatively new measure and it is not thought that there are any available statistics available on the

degree to which it has or has not been used.7 A Circuit Court practitioner8 commented on S.I No

539 of 2009:

“It is in my opinion still something that most solicitors and barristers don’t think about let alone

judges. In certain circumstances it can be a useful option. But it needs to be used more often

before it is used as much as it might be. Anecdotally it’s not being done with any great degree of

regularity and it is still seen by some practitioners as something that if they know its there they

don’t necessarily want to use it. ADR is very fashionable at the moment but many colleagues

aren’t interested in it and/or they have specific or latent prejudices about it and prefer to do

their business in a court room. ”

An Arbitrator appointed in a reference which started off as an application for an interlocutory

injunction before the Circuit Court noted:

“I was aware this could happen but was surprised to be called and asked to act as an arbitrator in

these circumstances. I obviously feel constrained in talking about the matter but suffice to say

6 For a wider discussion of the concept of arbitrablilty see Dowling-Hussey, A. and Dunne, D. ‘Arbitration Law’ (Thomson Round Hall, Dublin 2008) generally and specifically paragraphs 1-62 to 1-68. For a discussion of mediation including what can or can’t be mediated see inter alia ‘Mediation Principles, Process and Practice’ Boule, L. (Chatswood, 2005). As for conciliation see inter alia ‘International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions’ Binder, P (Sweet & Maxwell, 2005) 7 The author invites comments and/or corrections and can be contacted in this regard at adhussey@lawlibrary.ie 8 Because of the appearance that remarks on this issue by solicitors, barristers or arbitrators could be seen as generating controversy those who were spoken to did not want to give their remarks on the record.

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counsel for the parties asked a Circuit Court judge, who was sitting outside Dublin, to appoint

me under the terms of S.I No 539 of 2009. The judge did not act of their own motion and I don’t

know how many Circuit Court judges would do that. Basically the two barristers here felt that

they could dispose of the matter much quicker than if they had to wait for the matter to come up

again at the next Circuit Court sessions in that particular town. It follows that the instructing

solicitors and the clients were comfortable with the application which was made to the Circuit

Court. There was a certain urgency to the underlying dispute and this meant it ended up before

me and but for that urgency I may never have heard about it.”

Conculsions.

A legal representative’s duty is to advise their client/s as to the best way to resolve the client’s

particular dispute. In some circumstances it will be appropriate to ask a Circuit Court judge to

refer a dispute to an arbitrator, conciliator or mediator. In other circumstances it will be better to

remain before the judge even if this approach necessitates one or more subsequent court

appearances perhaps some months later. The approach to be taken is something that should as

stated be considered on a case by case basis. For all the clients who prefer the confidential nature

of an ADR process (after the initial appearance in the Circuit Court) there will always be parties

who advise their legal representatives that they wish to litigate the difference before a Circuit

Court judge, from beginning to end, however long and expensive this may be. It may be that a

sense of injustice has caused an action to be brought or defended and a legal victory alone will

not be enough. There can be because of the nature of the case and the dynamics between the

parties a compelling need to look for that victory in public. It may be that a plaintiff or defendant

with deep pockets believes that they have a financial advantage over the other side and that they

feel litigation will allow them to make use of this advantage by trying to delay the case and then

appealing it. Any suggestion that an expedited ADR process, which would not normally allow

for an appeal or review, will be used would in these latter circumstances not find favour. But in

any event the reasons for a party preferring, or not preferring to use the Circuit Court are myriad.

It ill behoves legal representatives not to consider using S.I No 539 of 2009 because as the

Arbitrator interviewed earlier in this note explained Circuit Court referred ADR can be the best

approach but that said if it is inappropriate to ignore this Statutory Instrument it would be equally

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inappropriate if the use of an arbitrator, conciliator or mediator, in a case that had started off in

the Circuit Court, was promoted at all ends.