On 2 October 2017, the Mediation Act 2017 (the Act) was signed into law.
The Act is expected to come into operation in the coming weeks.
Under Section 14 of the Act, solicitors must advise clients on the option of mediation as a means of resolving a dispute prior to issuing legal proceedings. Clients must be informed of the advantages/benefits of mediation and must be provided with information on mediation services.
To issue proceedings in the relevant court office, the originating ‘writ’ (e.g. Civil Bill, Summons or Originating Notice of Motion) must be accompanied by a statutory declaration sworn by a solicitor confirming performance of their obligations under the Act. If a statutory declaration is not provided, the Court will adjourn the proceedings until the solicitor provides evidence of compliance.
The Act also permits the Court to invite parties to consider mediation as a means of attempting to resolve the dispute.
In a previous insight, I outlined the format of mediation and expanded on the other obligations and possibilities proposed by the Mediation Bill now contained in the Act.
SO, WHAT EFFECT WILL THE ACT HAVE?
The purpose of the Act is to embed mediation within the procedures of the Irish legal system and to highlight the process as a viable alternative to litigation.
The Act will hopefully encourage practitioners to meaningfully consider mediation as a means of resolving a client’s dispute. As a Court can ultimately direct parties to engage in mediation several months into legal proceedings, it would seem sensible to seriously consider mediation at the outset, before significant legal fees are incurred.
The benefits of mediation are hard to ignore: -
- It provides the prospect of resolving a dispute without depriving either party of its right to pursue their claim by litigation where settlement is unsuccessful.
- It can provide an opportunity to heal fractured relationships, enabling future business between the parties.
- It is private and confidential.
- The process is managed by an appointed ‘Mediator’; a neutral third party. A good Mediator will identify the key issues that are in dispute, may test parties on their respective strengths and weaknesses and can encourage the parties to explore the reality of a failed settlement.
- The parties, not the Mediator, control the shape of any settlement and the terms to be agreed.
- It gives more flexibility and scope for what can be included in the settlement. A Court is often limited in what directions/Order it can make specific to the dispute.
- It provides a forum for communication and discussion in multi-party or technical/complex disputes.
- It is less adversarial and generally less stressful.
- It can reduce the legal costs incurred by both parties.
- It can be arranged in a very short time frame and can resolve disputes quickly.
For more information on mediation and other methods of alternative dispute resolution please contact me.