On 1 January 2018, the Mediation Act 2017 came into operation in Ireland.

So, what now?

The purpose of the Act is to embed mediation within the Irish legal system and to highlight it as a viable alternative to legal proceedings.

Fundamentally, the Act imposes a statutory duty on solicitors (and barristers) to comply with the following obligations prior to issuing legal proceedings: -

  • To advise clients to consider mediation as a means of attempting to resolve the subject dispute and to provide information on mediation services.
  • To inform the client of the benefits of the mediation process and the advantages of resolving a dispute outside of legal proceedings.
  • To clarify that mediation is a voluntary process and may not be appropriate in limited circumstances (where the safety of the client or their children are at risk).

Solicitors must swear a statutory declaration confirming that they have performed the above obligations. Failure to so do can delay any legal proceedings subsequently issued by the client.

What effect will the Act have?

It is likely to result in more parties attempting mediation at the outset of a dispute. The Act gives the Court the discretion to consider an unreasonable refusal by a party to attend mediation when awarding costs in the legal proceedings.

Whilst the numbers attempting mediation will certainly increase in 2018, time will tell whether this will result in more disputes being resolved by mediation. For this to happen the parties must engage in the mediation process in a meaningful way and not just attend as a tick box exercise.

It is undeniable that there are many advantages to mediation.

The most significant benefits are:

  • It is private and confidential.
  • It is managed by a neutral third party (the Mediator) who can test each party’s position and can prompt parties to consider the realities of a failed settlement (i.e. delay, legal costs, end of business relationship etc.).
  • The parties control the terms of any settlement – it can be as broad, narrow or commercial as the parties choose – a Court’s award/Order will often be limited to the specific issues in dispute.
  • It can be arranged quickly and can reduce the legal costs incurred.
  • It often results in the resolution of the dispute - the MII (Mediators’ Institute of Ireland) quotes a success rate of 80% in mediation.

Therefore, it is unsurprising that the CEDR (Centre for Effective Dispute Resolution) 2016 Mediation Audit reported that in 2016 £10.5 billion worth of commercial disputes were mediated in the UK; a £2.5 billion increase from 2014. [1]

In my previous insight on the Mediation Act, I further discuss the process of mediation and its advantages. Click here to read more.

For more information on mediation and other methods of alternative dispute resolution please contact me or any member of our Dispute Resolution Team, several of whom are CEDR accredited mediators.

[1] https://www.cedr.com/docslib/The_Seventh_Mediation_Audit_(2016).pdf