InBus_Win09_56-96:InBusiness 1-61 11/12/2009 10:51 Page 78
SPECIAL REPORT | Arbitration
HAPPY MEDIUM live in February 2010 that will provide
While arbitration offers a binding and lasting members and the business community with
agreement, many businesses and access to information on ADR.
organisations embroiled in commercial Deirdre Khuwais, an Accredited Mediator
disputes are now opting for mediation. with Friarylaw says that mediation has
Mediation is a private and structured form of become the ADR procedure of choice for
negotiation whereby an independent third many Irish businesses and organisations.
party, generally chosen by the parties, assists “Mediation is now emerging in Ireland as
them in resolving their dispute. Mediation is perhaps the most effective form of dispute
used in a broad spectrum of disputes such as resolution. Sophisticated clients are
commercial, family law, property disputes, increasingly aware of the benefits of
workplace/interpersonal, community disputes mediation and its advantages over litigation,
and restorative justice. It is initially non- arbitration and other forms of dispute
binding but if a settlement is reached the resolution.” According to Khuwais, this has a
mediator can draw up an agreement that can lot to do with its growth internationally. “As a
then become a legally binding contract. While result of the very positive international
Larry Fenelon of the Chartered Institute
the opposing parties are often legally mediation experience, including in both the
of Arbitrators.
represented at mediation proceedings, they UK (by reason of the time and cost savings
“ARBITRATION IS
still retain control over the process and the of ADR provisions introduced in the new
outcome. The mediator does not decide or Civil Procedure Rules) and the US (where
QUICKER, LESS COSTLY judge the case. The mediator’s role is to cases going to trial in New York are currently
AND IS FINAL AND
facilitate the parties in reaching their own at a 40 year low such is the impact of ADR),
agreement. At all times during the mediation Irish civil and commercial society is
BINDING SO IT CANNOT
process, the parties themselves are in control embracing new and innovative forms of
BE APPEALED.”
of the terms of any final agreement. dispute resolution,” she says. “Legislative
Mediation offers confidentiality, speed, cost changes at national and EU level underpin
– Larry Fenelon
savings, and the opportunity to retain the emergence of mediation as an essential
relationships. Larry Fenelon recommends that tool in the fast and efficient resolution of civil
beginning of the eighteenth century. the business community looks towards and commercial disputes in this jurisdiction.”
Now, arbitration is mostly used in mediation as the most viable form of ADR. Friarylaw and their partner, ADR Group,
construction disputes, rent reviews, property Not only is it quicker (mediation proceedings has been involved in mediation training in
contracts, insurance, holiday disputes and can be over in a day) and cheaper, it also Ireland for both the legal profession and
motor disputes. Larry Fenelon of the ensures that business relations remain in tact. non-lawyers for some time now, with ADR
Chartered Institute of Arbitrators says “I think the business community should really Group the first to establish themselves in the
arbitration has many advantages over be looking towards mediation,” Fenelon says. UK as trainers in this field. Khuwais is quick
litigation or other forms of adjudication and “It doesn’t impose a decision the way litigation to point out that the training is business
dispute resolution in appropriate cases. or even arbitration does so both parties can focused, with Friarylaw assisting delegates to
“Litigation often involves considerable legal agree on a solution together. Plus, on average, address commercial disputes in a
costs and delays and overall, it is a very its 80 per cent quicker than other methods.” comprehensive manner which ties into a
inflexible way of resolving a dispute. In Fenelon says it has also become easier for coherent corporate policy and is designed to
contrast, arbitration is quicker, less costly and parties to access information and therefore affect material cost savings and improve their
is final and binding so it cannot be appealed,” can make an informed decision. At present bottom line; a factor which is, and will
says Fenelon. Arbitration proceedings also the Chartered Institute of Arbitrators is continue to be, of critical importance to
allow for a degree of privacy that parties developing a new website that is due to go resolution success in 2010.
cannot avail of during litigation proceedings
due to the courts being open to court
reporters and the public.
The Chartered Institute of Arbitrators is an
international organisation engaged in training
and educating its members in the law and
skills necessary to adjudicate effectively in
ADR proceedings. The Irish branch which was
established in 1981 now has over 800
members, ranging in profession from solicitors
and barristers, to accountants, architects,
doctors and engineers.
78 InBusiness Winter 09
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