Alternative Dispute Resolution – What Are The Options?

Arbitration

 Arbitration frequently arises as a consequence of clauses in commercial contracts. Ireland operates a common law system, similar to the US and UK, and is often favoured to govern business contracts. If an arbitration clause is contained in a contract, as an alternative to litigation when a dispute occurs, the contracting parties are required to follow it. It is a dispute resolution process that can have many advantages over litigation, for example, any hearing will be held in private and arbitration is much quicker and cost efficient than court proceedings.

Arbitration is governed by the [i]Arbitration Act 2010 which came into operation on 8 June 2010. An arbitrator is appointed by the parties or nominated by an independent third-party nominating body. In terms of the format of an arbitration, the arbitrator will usually determine the procedure which the parties will follow and the arbitrator’s decision is legally binding and cannot be appealed in the absence of fraud or manifest error.

[ii]Arbitral proceedings are deemed to commence on the date on which the parties to an arbitration agreement so provide as being the commencement date, or, where no provision has been made by the parties as to the commencement of proceedings, the date on which a written communication containing a request for the dispute to be referred to arbitration is received by the respondent.

Ireland has incorporated the [iii]UNCITRAL Model Law, which means that parties to a dispute are safe in the knowledge that awards granted in Ireland will be directly enforceable and have recognition in other states that have adopted the Model Law. To enforce an award, an application may be made to the High Court by way of Originating Notice of Motion grounded on affidavit exhibiting the original arbitration agreement and the award. Enforcement will only be refused on limited grounds such as whether it would be deemed contrary to public policy.

Mediation

Mediation is a flexible process and is entirely voluntary. Generally, decisions made in mediation are not legally binding but can be made so if both parties agree to it. It is conducted confidentially in which a mediator assists parties involved in a dispute to work towards a negotiated settlement.

Mediation is actively encouraged by judges and a party who unreasonably refuses to mediate can be penalised in terms of legal costs in the event of the case proceeding to a court hearing. Since the establishment of the [iv]Commercial Court, Order 63A, Rule 6(1) (xiii) of the Rules of the Superior Courts provides that a Commercial Court Judge may direct that a case be adjourned to allow for the matter to be referred to mediation.

The [v]Mediation Act came into effect on 1 January 2018. Under the Mediation Act, solicitors are required to advise their clients to consider mediation as a form of alternative dispute resolution and make a statutory declaration that they have done so.

If the parties agree to mediate, time stops running for the purpose of the limitation period in which to bring proceedings on the date when the parties sign the agreement to mediate. Time will recommence 30 days after any termination of the mediation.

In a typical mediation, the mediator will ask the parties to submit a short summary of their respective positions, in advance of the mediation hearing. On the day of the hearing, the mediator will spend time talking to the parties. If the parties agree on a settlement, then the mediator will, in conjunction with the parties, draw up a settlement agreement which the parties will then sign.

Conciliation

Like mediation, conciliation is a voluntary and confidential based process. The attractiveness of conciliation is that it is flexible, allowing parties to define the time, structure, and content of the conciliation proceedings. The process is conducted on a “without prejudice” basis, meaning that any documentation or information furnished by one party to the other during the conciliation cannot be used in any subsequent litigation. It is frequently utilised in employment and construction disputes.

The role of a conciliator is to help parties achieve a settlement of a dispute. If parties are unable to reach an agreement, the conciliator will issue a recommendation. This recommendation contains the conciliator’s opinion as to how the dispute could be best resolved.

Sometimes conciliation is a prerequisite to arbitration, owing to a clause in a contract requiring parties to engage in conciliation before referring their dispute to arbitration or another form of dispute resolution. Conciliation has been very successful in settling disputes in the construction industry.

[i] https://www.irishstatutebook.ie/eli/2010/act/1/enacted/en/html

[ii] Arbitration Act 2010, Section 7 (irishstatutebook.ie)

[iii] https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09955_e_ebook.pdf

[iv] https://www.courts.ie/rules/commercial-proceedings

[v] https://www.irishstatutebook.ie/eli/2017/act/27/enacted/en/html 

General Scheme of the Defamation (Amendment) Bill 2023 – Amorys Solicitors

Since the introduction of the Defamation Act of 2009, there have been repeated calls for its reform and criticism that the Act fails to strike an appropriate balance between the right of someone to protect their name and character on the one hand, and the level of compensation that is paid to plaintiffs where a defamatory statement has been proven to have occurred on the other hand. A statutory review of the law on civil liability for defamation was conducted and resulted in the publication of a [i]“Report of the Review of the Defamation Act 2009”  by Minister for Justice, Helen McEntee, on 1 March 2022.

The Government are currently working towards reforming defamation law with the publication of the [ii]General Scheme of the Defamation (Amendment) Bill.

This article will set out below some of the key proposed changes.

Abolition of juries

Lobbyists have long complained that jury awards in defamation cases have been far too high and that juries should be abolished. It is now proposed under the Bill that juries would no longer hear such cases and that any payment of damages would be wholly a matter for consideration by the judiciary.

Obligations to consider alternatives to court proceedings

Solicitors will be obliged to advise clients on alternative avenues of redress prior to to litigation, for example mediation, the role of the Press Council and of Coimisiún na Meán’s right of reply scheme. Coimisiún na Meán was established in 2022 and is Ireland’s new commission for regulating broadcasters and online media, replacing the Broadcasting Authority of Ireland.

Serious harm test

The Bill proposes that a body corporate may bring a defamation action where they claim a defamatory statement has been made. In the case of a body corporate, a statement will not be deemed defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of the body corporate in the eyes of reasonable members of society.

Social media and other online platform providers

Where defamatory material is posted anonymously on a hosting platform or on social media, the intermediary concerned will possess identifying material about the anonymous poster who is its account holder, but will not provide such information in the absence of a court order.

Under the proposed Bill, if enacted, the High Court or Circuit Court will, be granted the power to make Norwich Pharmacal Orders. These orders are a type of remedial order delivered by the Court which compels a respondent to disclose information of both wrongdoings and wrongdoers. The purpose of such an order is to help identify a defendant so that legal action may be brought against them. These orders may direct online service providers to disclose the identity of an anonymous poster of allegedly defamatory material. The Bill envisages that the making of a Norwich Pharmacal Order available in the Circuit Court should reduce the costs involved for all parties and ensure that such orders are more accessible in practice.

Corrective action

If a person is defamed, it is proposed that the correction must be published with equal prominence to the defamatory publication.

Choice of jurisdiction

Ireland has long been deemed a destination for “defamation tourism” and this Bill will change this.

It is proposed that a court will not have jurisdiction to hear and determine an action against a person who is not domiciled in the State, in another Member State, or in a state which is for the time being a contracting party to the Lugano Convention, unless the court is satisfied that Ireland is the appropriate place for the action to be brought.

Innocent publication

The Bill seeks to strengthen the protection afforded to broadcasters by amending section 27 of the 2009 Act, and will seek to ensure that a broadcaster will not be made liable for statements made during a live broadcast by a person over whom the broadcaster has no effective control, this is provided that the broadcaster takes reasonable precautions in advance of the broadcast, and reasonable care during the broadcast, to prevent the making of a defamatory statement, and, where such a statement has been made, to minimise the impact of any such statement.

Dismissal/Discontinuance of cases

Stagnant defamation claims result in some defendants having to bear ongoing costs and uncertainty over proceedings for several years after legal proceedings have commenced.

This Bill proposes that where no action has been taken by the plaintiff within 2 years of the initiation of defamation proceedings, the proceedings shall be dismissed/discontinued on notice to the plaintiff for want of prosecution. If a court decides that a case should not be dismissed/discontinued in the interests of justice, the court shall specify a time limit within which the plaintiff shall take the necessary action to enable the case to proceed.

SLAPPS

It is intended that a new part, entitled “Measures against the abusive litigation to restrict public participation”  will be inserted into the Defamation Act 2009 to deal with Strategic Lawsuit Against Public Participation (SLAPPs). The Bill refers to these as the strategic and abusive use of vexatious litigation, by a powerful entity or individual, to weaken and deter public interest discussion.

Where proceedings are brought by a plaintiff, in relation to public participation by a defendant, the defendant may apply to the court on the full hearing of the proceedings for a declaration that the proceedings constitute a strategic lawsuit against public participation and seek dismissal of the proceedings, among other remedies.

The Bill will now undergo pre-legislative scrutiny at the Joint Oireachtas Committee on Justice. It is hoped that a full Bill will be put before the Oireachtas by the end of this year.

The changes proposed in this Bill will have profound implications on the practice of defamation law in this jurisdiction if enacted.

[i] Report of the Review of the Defamation Act 2009
[ii] General Scheme of the Defamation (Amendment) Bill