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The Mediation Act 2017


Tuesday, September 19, 2017

Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often the real loser – the fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough”

The above citation is an extract from the former president of the United States, Abraham Lincoln’s Notes on Practical Law which was published in the early nineteenth century. Now, with the Meditation Act 2017 (the “Act”) being signed into law by the President on 2 October 2017, his words and the promotion of alternative dispute resolution are more pertinent than ever. The Irish courts have long been supporters of the process of mediation. The Rules of the Superior Courts permit judges to adjourn proceedings in order to facilitate mediation, so already in advance of the Act, cost sanctions are in place for those who unreasonably refuse to accept this alternative route to resolution.

The long-awaited Act (the commencement of which is expected in the short term) now brings mediation even more to the fore, encouraging settlement of civil disputes by mediation and specifying the principles applicable to the mediation process. The Act places the promotion of mediation as an attractive alternative to court proceedings on a statutory footing.

Role of Legal Representatives

Section 14 of the Act imposes a legal obligation on a “practising solicitor” to advise their clients, prior to issuing proceedings, to consider mediation as a means of dispute resolution. A solicitor must now inform the client of the advantages of resolving their dispute by alternative means to litigation and the benefits of mediation. They must also provide the client with information in respect of the mediation services available, including the contact information of recommended mediators, confidentiality obligations and the enforceability of mediation settlements.

If a client chooses not to participate in mediation and to continue with court proceedings, the originating document by which those proceedings are instituted must be accompanied by a statutory declaration sworn by the solicitor confirming that they have performed their obligations in relation to the client. If such a declaration is not filed, the Court will adjourn any proceedings issued until such time as it is provided.
The Act has introduced the following procedural changes:

 “Agreement to Mediate”

As per section 7 of the Act, before the commencement of mediation the parties and the proposed mediator must sign an “agreement to mediate”. The agreement must set out:

  • the manner in which the mediation is to be conducted;
  • the manner in which the fees and costs of the mediation will be paid;
  • the place and time at which the mediation is to be conducted;
  • the fact that the mediation is to be conducted in a confidential manner;
  • the right of each of the parties to seek legal advice;
  • subject to section 6(6) of the Act, the manner in which the mediation may be terminated.
“Judicial discretion”

Section 21 of the Act allows for further judicial discretion in awarding costs penalties with regards to the conduct of the litigants when it comes to considering mediation. The Courts may have regard to “any unreasonable refusal or failure by a party” to consider or attend mediation. Thus a party may expose itself to the risk of an award of costs against it where it is found to have unreasonably refused to consider or attend mediation. This provides clients who may not have previously had the financial resources to pursue a claim a greater opportunity to access mediation as a means of dispute resolution. This alternative route is likely to also assist them in avoiding the costly and lengthy process of litigation.

Mediation and the Statue of Limitations

Section 18 of the Act provides that from the date of signing the agreement to mediate, time will effectively stop for bringing claims under the Statute of Limitations until 30 days after either a mediation settlement is signed (by the parties and the mediator) or the mediation is terminated, whichever first occurs.

Role of the Mediator and Mediation Council of Ireland 

The role of a mediator is to assist parties to a mediation agreement to reach a mutually acceptable agreement to resolve the dispute the subject of that agreement. Section 8 of the Act sets out the steps to be taken by a mediator prior to the commencement of mediation, including the requirement that the mediator must give a copy of any code of practice to which he or she adheres to the parties so that they are informed of the standards to which their mediator has committed. The Act also provides for the possible establishment of an independent Mediation Council of Ireland, which will be required to make reports to the Minister for Justice and Equality in relation to mediation in the State.

Conclusion

It is important that legal representatives are aware of their role in the process of mediation and the responsibilities that now arise under the Act. Failing to acknowledge these obligations will result in the proceedings being adjourned until the legal representative illustrates their compliance.

The Act is to be welcomed and should result in a material reduction in both costs and resources in a wide variety of disputes. It should be noted however, that not all disputes are amenable to mediation; claims that seek to vindicate constitutional rights for example may still need to be determined by a judge.

 

For more information, please contact our construction team. 


Author

Clare Cashin

PARTNER


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