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Arbitration is the determination of the dispute by one or more independent third parties (the arbitrators) rather than by a court. Arbitrators are appointed by the parties to the dispute in accordance with the terms of an arbitration agreement or in default by a court
Arbitration in Ireland is governed by the Arbitration Acts of 1954, 1980 and 2010.
The advantages of arbitration in Ireland as a method of conflict resolution or dispute resolution
Firstly arbitration proceedings are held in private and are neither known to nor reported by outsiders.
Secondly with the cooperation of the parties and the adoption of the most suitable procedure for dispute, the arbitral process can be expeditious and less expensive than court proceedings as a method of dispute resolution.
Thirdly because the arbitrator is usually chosen as an expert in the field concerned, there is not the same need for numerous expert witnesses.
Fourthly the arbitrator’s award is final and binding on the disputants. Unlike a court judgement which can be changed on appeal, there are few grounds on which party can appeal to the courts to have an arbitrator’s award set aside. These grounds generally relate to technical errors by the arbitrator and not to the starters or resources of the parties.
The arbitration process in Ireland
Where a dispute has arisen the first step is to appoint an arbitrator this can be done before consulting a solicitor who services may turn out to be a necessary. Normally one arbitrator is appointed as multiple arbitrators are rarely needed except in complex international disputes.
An arbitrator can be appointed in one of the following ways:
- Where the dispute arises under a contract which contains an arbitration clause, the provisions of that clause should be followed. Unless the parties agree otherwise, this is obligatory and proceedings may usually be initiated by any party.
- The parties may agree between themselves on the selection of an arbitrator but in practice this rarely occurs.
- The parties may request the nomination of an arbitrator, for appointment by the parties, by applying to the Chartered Institute of Arbitrators at 8 Merrion Square Dublin 2. This method has the advantage of ensuring the appointment of a trained arbitrator being selected from the many available panels of members of different disciplines.
- Where there is no arbitration agreement, a party may apply directly to the courts that a dispute be referred to arbitration. If the application is successful, the court will appoint the arbitrator.
Once an arbitrator has been appointed to hear the dispute, the arbitrator will usually arranged a preliminary meeting between himself and the representatives of the disputing parties to set out the procedure to be followed for the hearing, the fees chargeable by the arbitrator, and the timeframe for the hearing of the dispute. The parties are free to either represent themselves or to have a technical expert or a solicitor or barrister represent them.
All correspondence between the arbitrator and the disputing parties is copied to all other parties at the same time. The time required for the procedure is will vary between different disputes but it should usually be possible to complete them all within 2 to 3 months. The arbitrator may direct that a full formal hearing be arranged. The arbitrator will usually issue a direction on the exchange of points of claim between the parties and the exchange of supporting documentation.
The arbitrator on payment of his fees will issue his award in writing as soon as possible after the conclusion of the hearing. The award will normally be a short statement setting out the payment of damages and costs etc. Such award may be enforced through the courts if necessary.
Berwick Solicitors are specialists in conflict resolution.
Mediation involves a third-party intervening, bringing proposals and counterproposals to the parties and encouraging them to settle the matter.
Great emphasis has been placed in mediation as a route of dispute resolution by the courts. For example in the area of family law the parties wishing to negotiate terms of a separation agreement may do so without the assistance of a mediator or a solicitor representing spouse independently. Under Sections 5 and 6 of the Judicial Separation & Family Law Reform Act 1989, the solicitors acting for either party to a separation agreement or to judicial separation proceedings are obliged, prior to instituting such proceedings, to discuss with their clients the possibility of reconciliation and or mediation to help affect a separation on agreed basis.
The solicitors further obliged under this legislation to supply the names and addresses of persons qualified to provide a mediation service. Mediation is considered by the courts to be suitable for delicate matters such as family law and that an attempt should be made to avoid the adversarial approach is used in court and in arbitration. Mediation is very suitable in these situations as allows the parties to put forward their aside of the dispute in a non-confrontational manner.
Mediation in Ireland
Mediation in Ireland is a well-recognised and successful form of alternative dispute resolution or conflict resolution which utilises the skills of a trained professional mediator to facilitate parties to a dispute to negotiate a resolution.
Mediation in Ireland is non-binding upon parties until such time as a successful conclusion has been achieved and both parties agree to their legal representatives formally writing up an agreement.
The benefits of mediation over traditional litigation include reduced cost, quicker process, confidentiality and the parties are in complete control of the process. Mediation services are very readily available in family law cases.
Great emphasis has been placed in mediation as a route of alternative dispute resolution by the courts and in Family Law it is mandatory that a solicitor advises their client of mediation as an alternative to litigation.
Mediation lends itself particularly well to commercial disputes as it allows a confidential dispute resolution to be arrived at and still preserves the business relationship.