Foreword

• Date: 01 January 2013

Foreword

The Honourable Mr Justice Michael Peart

Judge of The High Court of Ireland

Judge in Residence at the Hibernian Law Journal 2012–2013

Once again it is a pleasure to introduce a new volume of the Hibernian Law

Journal, which is by now f‌irmly established as a signif‌icant addition to any

worthwhile legal library. The quality of the authors, their research and

scholarship, the dedication of the editorial committee and the choice of subject-

matter has ensured that the reader is once again provided with articles on

subjects of contemporary interest and relevance. One look at the table of

contents conf‌irms this.

Dr Ronan Feehily has provided much needed commentary on the status

and enforceability of Mediated Settlement Agreements. Mediation is gaining

traction here as an alternative dispute resolution procedure. This is not surprising

given the substantial costs involved in pursuing a dispute resolution through

the courts, not to mention the potential for delay. In addition of course,

parties who choose to go to mediation are choosing to take ownership of the

solution rather than leave that task to a judge who will impose on the parties

a solution not of their making. Taking ownership of the solution is an important

feature of mediation since it helps to ensure that the mediated agreement will

endure. Nevertheless, there will be cases where such agreements break down

or are not fulf‌illed for one reason or another. In such cases, if the process is

not to have been a futile waste of time and effort, adding only another layer

of cost, it ought to be possible to enforce the mediated agreement against the

party in default. Dr Feehily has usefully looked at the experience of enforcement

of such agreements in other jurisdictions such as the U.K, U.S.A, Australia

and South Africa. He has suggested how mediated agreements should be

constructed so as to minimise the possibility that the agreement may be found

to be unenforceable.

As I write, the question whether judges here are availing suff‌iciently of

their jurisdiction to impose a community service order rather than impose a

sentence of imprisonment has been raised by the Minister for Justice. In his

article, Darragh Connell asks whether such community service orders are

serving the community and he examines the experience in the United Kingdom.

He argues that a structured, well-resourced community service programme

has an important role to play in diverting young offenders from recidivist

offending, but must nevertheless be afforded only to suitable offenders where

its rehabilitative objective can be achieved, and so that the public’s conf‌idence

in such orders is maintained and enhanced.

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