The Mediation Act 2017 commenced on the 1st January 2018. The bill was published at the beginning of 2017 and passed both houses of the Oireachtas in September 2017 and was signed into law by the the President on the 2nd of October 2017. (You can view the bill by clicking the following link Mediation Act 2017)
Commenting on the commencement of the Mediation Bill into law Mark Small said “.. its been a long journey which started more the 7 years ago, however it is great that we finally have a Mediation Act 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 Act 2017 covers all civil disputes with some exceptions which greatly increase the scope of disputes that mediation will be used in. Some of the most interesting actions of the bill have been highlighted below.
The Act shall apply to any civil proceedings.
Some exceptions eq, WRC cases & Arbitrations. The exceptions are listed here.
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. Section 14 does not apply to the Guardianship of Infants Act 1964, Judicial Separation and Family Law Reform Act 1989, Family Law (Divorce) Act 1996, however the Mediation Act 2017 amends these Acts to give the same effect to the acts as is contained in Section 14 of the Mediation Bill. The effect is that the old system of advising clients in Family Law matters about the use of mediation will now change to the system as outlined in Section 14 of the Mediation Act 2017.
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
In 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 (2) states that a mediation settlement shall have effect as a contract between the parties to the settlement except where it is expressly stated to have no legal force until it is incorporated into a formal legal agreement or contract to be signed by the parties. 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
The Bill imposes a general confidentiality obligation on the mediator and parties to a mediation. Section 10 of the bill states that all communications (including oral statements) and all records and notes relating to the mediation shall be confidential and shall not be disclosed in any proceedings before a court or otherwise.
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.
