InBus_Win09_56-96:InBusiness 1-61 11/12/2009 10:50 Page 77
Arbitration | SPECIAL REPORT
Clear
THE AIR
++++++++++++
With many Irish companies
facing into uncertain futures
in 2010, the incidence of
commercial disputes is
expected to rise. Anne
Whelton looks at two of the
most popular forms of
Alternative Dispute
Resolution (ADR) –
arbitration and mediation –
as alternatives to the costly
and time-consuming
litigation process.
++++++++++++
WHEN CONFLICT ARISES and escalates into a
“LEGISLATIVE CHANGES AT NATIONAL AND EU
dispute, resolution can be achieved by litigation
or Alternative Dispute Resolution (ADR). In the
LEVEL UNDERPIN THE EMERGENCE OF MEDIATION
current economic and financial climate, cost has
become the major deciding factor in choosing a
AS AN ESSENTIAL TOOL IN THE FAST AND
method of dispute resolution. While in some
EFFICIENT RESOLUTION OF CIVIL AND COMMERCIAL
cases litigation may be necessary, the vast
majority of cases can be handled successfully
DISPUTES.”– Deirdre Khuwais
with ADR.
There are several recognised ADR Ireland over the past number of years. In fact, binding process where the dispute is resolved
procedures. Negotiation is the most common, many courts now require that participating by the decision of a nominated third party, the
and involves the parties themselves attempting parties resort to ADR of some type before arbitrator or arbitrators, who is usually chosen
to resolve the dispute. If negotiation is permitting the case to be tried in court. Similarly, for his/her expertise in the area of the dispute.
unsuccessful, the other forms that are most the report of the Special Group on Public In Ireland arbitration is governed by the
commonly used are: mediation; conciliation; Service Numbers and Expenditure Programmes Arbitration Acts 1954-1998, which provide a
arbitration; neutral evaluation; expert (the ‘McCarthy Report’), which was published in structural legal framework for both domestic
determination; and adjudication. It is vital to July 2009, recommends that state bodies should and international arbitrations.
ensure that the process chosen is the most resolve legal disputes by mediation or arbitration Arbitration has for centuries been the
appropriate for the type of dispute, the needs of to “eliminate the unnecessary legal cost burden procedure of choice of parties involved in
the parties and the timing at which arising from litigation”. shipping and commodity disputes. One of the
intervention occurs. earliest arbitrations held by the merchants of
The use of ADR amongst institutions, DUTY BOUND Dublin involved a dispute about ownership of
government bodies, legal systems and Arbitration is probably the best-known form of the cargo of the Ouzel Galley which returned
businesses has become much more extensive in private dispute resolution. It is a formal and to Ireland, following a dramatic voyage, at the
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