5 years after the Justice committee held a consultation process the government have finally published the Mediation Bill 2017. Commenting following the publication of the bill Mark Small said “..that it is great that we finally have a Mediation Bill which will put a framework around resolving disputes using Mediation. The requirement that solicitors and barristers will now have to highlight the advantages of mediation to their clients and then sign a statutory declaration stating that they have advised their clients that mediation is an option, should greatly increase the uptake in Mediation…”. The Mediation Bill 2017 covers all civil disputes with some exceptions which greatly increase the scope of disputes that mediation will be used in. To fate mediation has predominantly been used in family law cases and employment disputes which are handled in private outside the WRC and LRC processes. Some of the most interesting sctions of the bill have been highlighted below.
The Act shall apply to any civil proceedings.
Some exceptions Eq, WRC cases & Arbitrations
Solicitors will have to advise clients to consider mediation
Sections 14 Is a key provision. It will require practicing solicitors to advise clients to consider mediation as an alternative to court proceedings. For this purpose, they must provide clients with information on mediation services, including details of mediators, information about the advantages and benefits of mediation, and information on confidentiality obligations and the enforceability of mediation settlements. Where court proceedings are instituted on behalf of a client, the application must be accompanied by a statutory declaration made by the solicitor confirming that these obligations have been discharged in relation to the client and the proceedings to which the declaration relates.
Court can invite parties to consider mediation
Section 16 provides that a court may, on application by a party to proceedings or of its own motion where it considers it appropriate to do so, invite the parties to the proceedings to consider mediation as a means of attempting to resolve the dispute before the court,
Costs can be awarded against parties who unreasonably refuse to attend mediation
section 21 a court may, where it considers it just to do so, take into account any unreasonable refusal or failure by a party to consider using mediation, or to attend mediation, when awarding costs in such proceedings.
Mediation agreements can be enforced by the court
Section 11 deals with the enforceability of mediation settlements. It will be a matter for the parties themselves to determine if and when a mediation settlement has been reached between them and whether it is to be enforceable between them. Subsection (3) provides that a court may enforce the terms of a mediation settlement subject to certain safeguards.
Confidentiality of the mediation process now enshrined in law
Section 10 imposes a general confidentiality obligation on the mediator and parties to a mediation.
Participation in mediation will be voluntary
Section 6 makes it clear that participation in mediation will be voluntary and that a party may be accompanied by another person (including a legal adviser) who is not a party to the mediation or may withdraw from the mediation at any time
Mediator must provide parties with an agreement to mediate
Section 7 will require the proposed mediator and the parties concerned to prepare and sign an “agreement to mediate” before the commencement of the mediation.