Mediation & Conciliation

MediationThe Bar Council and the Law Society have long recognised the benefits that the use of mediation and conciliation can bring to the system of justice and to the public interest. The CBA accordingly recognises that these benefits apply particularly in the context of construction disputes. The resolution of construction disputes by agreement through the mediation and conciliation processes can have advantages over determination by the Courts or by Arbitration.

A number of standard form construction contracts require the parties to engage in conciliation before referring a dispute to arbitration. The standard contracts and subcontracts of the RIAI, IEI, CIF and SCS provide for the resolution of disputes by conciliation and arbitration. The Irish Government Public Works Contracts (PWC) largely follow suit albeit specific care and attention is advised in relation to the dispute resolution clauses of the PWC which contain some unique features.  The vast majority of construction contract disputes are settled at this stage of the process. The High Court has recently found the appointment of an Arbitrator invalid insofar as the appointment related to disputes which had not previously gone to conciliation (Achill Sheltered Housing Clg v. Dooniver Plant Hire Limited [2018] IEHC 6

The CBA, as the specialist association of Counsel and Solicitors involved in the resolution of construction disputes, supports the approach that, where it is appropriate, parties to a construction dispute should be encouraged to explore whether their dispute can be resolved by agreement, whether directly or with the help of a third party mediator or conciliator, rather than proceeding to a formal decision by an Arbitrator or a Court.

The CBA encourages the use of mediation and conciliation in many construction disputes because, on balance, these ADR processes tend to be cheaper and timelier. The Law Reform Commission in its 2010 Report; Alternative Dispute Resolution: Mediation and Conciliation stated that research on the efficiency of ADR processes indicates that mediation and conciliation processes often provide a speedy resolution to a specific dispute. On the whole the Commission accepted that careful and appropriate use of ADR processes is likely to reduce the overall financial costs of resolving disputes. Additionally, the fact that a matter dealt with by way of mediation or conciliation is likely to be dealt with much quicker than a dispute dealt with by the Courts or by Arbitration is generally quite attractive to the parties to the dispute. In addition, the other generally recognised values associated with the ADR processes including party autonomy and respect for confidentiality should be noted.

The Law Reform Commission recommended “that when provision for conciliation is made in legislative form, it should be defined 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 CBA considers that mediation has a role to play in the resolution of construction disputes. The building of the Boston Highway, known as the “Big Dig,” is often quoted in the United States as an example where commercial disputes between contractors and sub-contractors were mediated, on the spot, while the project was ongoing. There are several reasons why mediation is an increasingly popular process for resolution of construction disputes. According to John Tarlow of the American College of Construction Lawyers:

“Mediation is a response to the financial cost and emotional stress to contractors, owners, developers, design professionals, and others who resort to arbitration or litigation to resolve their construction disputes. All too often, arbitration is not a low-cost alternative to litigation… Mediation allows the business executive to minimize legal costs, control the decision-making process, avoid most of the emotional stress, maintain business relationships, and provides the most rapid process for full and final resolution of disputes.”

For over a decade, the Bar Council has been promoting the use of mediation as a process to its members. Its efforts have included measures to increase the awareness of the mediation process, the encouragement of members to undergo training and obtain recognised accreditation. These efforts have been very successful and for the past number of years the Bar Council has made available, through its website, a list of barristers who are accredited mediators. Members of the Bar also participate in mediations as advocates and courses have been held by the Bar with a particular focus on training for barristers seeking to represent clients during a mediation process.

The CBA, therefore, is an association of specialist barristers and solicitors that offer expert, experienced and trained mediators and advocates to parties to construction disputes. In that respect the CBA places significant emphasis on the key principles involved in mediation and conciliation, including its voluntary nature, the need for confidentiality, its efficiency and the quality of the process.

The aim of the Mediation Act 2017 is to encourage parties to settle their disputes at mediation, as an alternative to litigation through court proceedings.  The Act does not apply to arbitrations, within the meaning of the Arbitration Act 2010, but experience has proven that mediations can often assist in an arbitral context, particularly where the pleadings have closed, expert reports have been exchanged, and the parties have reached a position where they can form a view as to the likely range of outcomes which might occur were the arbitration to run its full course.  Mediation in such circumstances can often assist the parties to resolve their disputes without thereafter incurring the full cost and delay of a possibly lengthy arbitration hearing, if not, indeed, multiple hearings.