The Substantially Changed Landscape in Litigation Following the Passing of the Mediation Act 2017
As both a practising Solicitor and Mediator, I very much welcome the passing, by the Oireachtas, of the Mediation Act, 2017 (the Act), which was enacted on the 2nd October, 2017.
The commencement of the operation of the Act will be by Ministerial Regulation, which has yet to be made, but no doubt will be made in the near future.
The preamble to the Act provides that the legislation is for the purposes of facilitating the settlement of disputes by Mediation, to specify the principles applicable to Mediation, and to specify arrangements for Mediation, as an alternative to the institution of civil proceedings, or to the continuation of civil proceedings that have been instituted.
The Act enables the provision of Codes of Practice, to which Mediators may subscribe.
The Act also provides for the establishment of the Mediation Council of Ireland, and the provision of Mediation information sessions.
The Act defines “Mediation” as a “confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a Mediator, attempt to reach a mutually accepted agreement to resolve the dispute”.
Section 3 of the Act sets out the nature of proceedings, which will not come under the remit of the Act, which includes arbitrations, Workplace Relation Commission (WRC) disputes, tax disputes, judicial reviews, proceedings under the Domestic Violence Acts, 1996-2011 and the Child Care Acts, 1991-2015, amongst others.
Section 6 of the Act makes it clear that participation in Mediation shall be voluntary, at all times. This is a very important inclusion in the Act, as it reflects the day-to-day practice of Mediation, as an alternative means of dispute resolution.
The Act puts the official agreement to mediate on a statutory footing, and defines the role of the Mediator.
The Act further provides that the Minister for Justice and Equality may publish Codes of Practice, in relation to setting standards, for the conduct of Mediations, together with approval of Codes of Practice, prepared by persons other than the Minister.
The confidentiality of the Mediation process is legislated for, in section 10 of the Act, which is an integral part of the Mediation process. Furthermore, the Act confirms that a mediated settlement agreement is enforceable, as a contract in the Courts, between the parties.
However, there are certain protections in family law matters, which permit the Court to alter or vary a Mediation settlement, where the Court is satisfied that the Mediation settlement does not adequately protect the rights and entitlements of the parties, and their dependants, or is not based on full and mutual disclosure of assets, or is contrary to public policy, or interestingly, where one of the parties has been unduly influenced, or overborne by the other party, in reaching a Mediation settlement.
There are significant obligations on the part of practising Solicitors and Barristers, with respect to Mediation, set out in part 3 of the Act. A Solicitor, prior to issuing proceedings, must advise the client to consider Mediation, as a means of attempting to resolve the dispute. The Solicitor must also provide the client with information, with respect to Mediation services, including the names and addresses of persons providing Mediation services. The Solicitor must provide the client with information about the advantages of resolving the dispute, otherwise than by virtue of Court proceedings, together with the benefits of Mediation.
In order to copper fasten this obligation, the Solicitor, when issuing proceedings, must swear a Statutory Declaration, confirming that he or she has performed the obligations imposed on him/her under the relevant section.
If such a Declaration has not been sworn, the Court shall adjourn the proceedings, until such proofs are put in place.
Similar obligations are imposed on practising barristers.
Part 4 of the Act deals with the role of the Court, in relation to Mediation, and provides that the Court may, on the application of any party, involved in the proceedings, or on its own motion, where it considers it appropriate to do so, to invite the parties to consider Mediation. If the parties decide to engage in Mediation, the Court may adjourn the proceedings, on such terms as the Court deems fit.
If a Mediator is appointed, following such a Court Application, and the case is subsequently re-entered, before the Courts, then the Mediator must prepare a written report, to the Court, setting out why the Mediation did not take place, in the event that it did not go ahead, or in the event that Mediation did take place, confirming whether a settlement had been reached, or stating the terms of matters which have been agreed, albeit that the entire dispute had not been resolved by Mediation.
In order to protect parties dealing with the Statute of Limitations, the Act introduces a protection in section 18, which stops time running against a Plaintiff, from the time an agreement to Mediation is signed, until 30 days after either a Mediation settlement is signed by the parties, and the Mediator, or the Mediation is terminated, whichever first occurs.
The Court has a discretion, in relation to costs, where there has been an unreasonable refusal, or failure, by any party to the proceedings, to consider using Mediation, and any unreasonable refusal, or failure by any party to attend Mediation, following an invitation to do so by the Court.
The Act in Part 5 also makes provision for the Minister to publish a scheme, for delivery of Mediation Information Sessions, in relation to both family law and succession law proceedings.
There is also a statutory protection, in relation to Mediation clauses in contracts, set out in section 19 of the Act. This is a very significant and important protection. This applies in circumstances where parties, for example, to a contract for the provision of goods and services, or for a commercial transaction, have agreed when the contract was drawn up, to include a Mediation clause, directing any dispute to be resolved by means of Mediation. In such an event, the Act enables a party to apply to the Court, to effectively stay the proceedings, in circumstances where the other party to the contract, seeks to avoid the Mediation clause, and seeks to litigate the matter, through the Courts.
It is hoped that the Minister will commence the legislation in the very near future. Mediation already plays a significant role in practice, in such areas, for example, as: employment law, family law, and debt enforcement. There is no doubt but proper engagement by parties in Mediation, serves to reach a compromise, which avoids long delays, in accessing Court dates for hearing, and the inevitable substantial legal costs, which are at risk, in such adversarial litigation.
As Mediation often leads to commercial parties resuming trade with each other, which rarely happens, following litigation, then all parties to commercial contracts, should include an obligation to mediate, as the dispute resolution mechanism, in the commercial agreement.
Patrick Mullins
CEDR Accredited Mediator
Partner at BDM Boylan Solicitors,
Clarkes Bridge House,
Hanover Street,
Cork.
021 431 3333