The Mediation Bill has been approved at final stage by the Oireachtas. The next step is for the Bill to be presented to President Michael D. Higgins for signature. Once signed, the Bill will become an Act and will have legal force.
According to the government, the aim of the Bill is to promote mediation as a viable and efficient alternative to litigation, reducing legal costs and providing a speedy resolution for disputes.
What is Mediation?
Mediation is a form of alternative dispute resolution which allows parties (two or more) to discuss their dispute in a private setting, on a confidential basis, with a view towards agreeing a mutually acceptable solution. The ‘mediator’ is an independent third party who manages the process of the mediation impartially, facilitating communications and providing the opportunity for the parties to settle the dispute.
The MII (Mediators’ Institute of Ireland) quotes a success rate of 80%.
Mediation is regarded as a cost and time saver.
The CEDR (Centre for Effective Dispute Resolution) 2016 Mediation Audit confirmed that in 2016 £10.5 billion worth of commercial disputes were mediated in the UK; a £2.5 billion increase from 2014. The Audit also estimates that commercial mediation saves UK businesses £2.8 billion a year as it reduces legal costs, management time, lost productivity and damaged business relationships.
The Mediation Bill 2017 – what change will it bring?
Solicitor and barrister obligations
Fundamentally, section 14 of the Bill requires a solicitor to advise his/her client of mediation as a method of dispute resolution prior to issuing proceedings.
A solicitor must provide a client with;
- information on mediation services;
- information on the advantages of resolving a dispute outside of civil proceedings; and
- information on the benefits of mediation.
However, the client must also be advised that mediation is voluntary and may not be an appropriate for disputes where safety of the client and/or their children is at risk.
Before instituting legal proceedings, the solicitor must provide a sworn declaration confirming compliance with his/her obligations under the Bill, otherwise the issued proceedings will be adjourned until the solicitor complies and provides the court with the sworn declaration.
Section 15 of the Bill imposes analogous obligations on a barrister if instructed directly by the client.
The Bill allows a court to invite parties to a dispute to consider mediation. The court will also have “discretion” to make any order it considers necessary “to facilitate the effective use of mediation”. This discretion can include an award of costs where a party unreasonably refuses or fails to consider or attend a mediation following the court’s invitation to do so.
The statistics show that mediation is increasingly being utilised as a mechanism to resolve disputes in a controlled and confidential manner. Obviously, there are, and will continue to be, a multitude of disputes that are not suited to the mediation process. However, it is safe to expect that once the Bill is enacted, mediation will increase in all areas of Ireland and in all types of disputes.
Legislation to promote mediation as an alternative to court proceedings was approved at the final stage by the Oireachtas last night.