New Mediation Bill puts mediation on a statutory footing

Thursday, 16 February 2017

The Mediation Bill 2017 (“the Bill”) (Bill Number 20 of 2017) was published on Monday, 13 February and contains proposals for a statutory framework to promote the resolution of disputes through mediation as an alternative to or as an option to avail of where court proceedings are ongoing.

The Bill contains a number of provisions directed at legal practitioners and the public alike. Notably, there are provisions for the future recognition of a body, to be known as the Mediation Council of Ireland, to be established for the purposes of this Act and to require that Council to make reports to the Minister for Justice and Equality as regards mediation in the State.

Outlined below are the types of proceedings excluded from the application of the legislation and what we believe to be some of the more salient provisions of note.

Exclusions from application of the legislation

By virtue of Section 3, certain types of proceedings are excluded from the application of the legislation e.g. proceedings under the Arbitration Act, disputes arising within an employment context referred to statutory dispute-resolution processes such as those provided by the Workplace Relations Commission; matters under tax and customs legislation; proceedings under the Child Care Acts or the Domestic Violence Acts.

Other notable exclusions include judicial review proceedings and proceedings against the State in respect of alleged infringements of fundamental rights and freedoms.

Key provisions of the Bill 

• Section 16 provides that a court may, either 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. Where the parties decide to engage in mediation, the proceedings may be adjourned.
  


• Reflecting similar legislative requirements in Family Law disputes in place in Ireland since 1989, Section 14 will require practising 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. 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. If the declaration is not submitted, the court will adjourn the proceedings until the solicitor complies with the requirements.
  


• With regard to the Statute of Limitations, Section 18 provides that the period of time during which mediation has taken place will be disregarded for the purpose of a limitation period. 
  


• Section 21 provides that 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.
  


• Pertinent to personal injuries action, Section 22 contains an amendment to section 15 of the Civil Liability and Courts Act 2004 which will allow the court, of its own motion, to direct the parties in a personal injuries action to meet to discuss and attempt to settle the action by means of mediation.

What this means for you

Mediation and Alternative Dispute Resolution (“ADR”) mechanisms are long established tools in Ireland and have always been at the centre of our skillset here in ByrneWallace. Pending the adoption of the legislation, mediation remains a tool that is available to our clients and you should discuss this option with your legal adviser. A unique aspect of our practice is our exposure and experience in mediation.

This legislation will result in material cost reduction for clients in a wide variety of disputes. Ireland is set to follow the path of other common law jurisdictions which have embraced mediation. It is certain that a judicial discretion to award costs penalties in relation to certain conduct when it comes to considering mediation will result in more clients having access to mediation as a means to seeking resolution to their disputes when they might not otherwise have had the financial resources to support lengthy litigation. It will also allow parties an opportunity to bring an earlier resolution to their ongoing disputes.

For mediation to be successful, all participating parties need to understand the mediation process. Your legal adviser will determine and carry out a broad assessment of the merits of a case prior to the mediation, including the likely costs exposure at trial so that at the time of mediation, advice relating to what to settle a case for is credible and supportable. Having a cost sanction, as proposed by this Bill, will focus the mind of litigation practitioners on the need to make early assessments, and it is through both sides engaging fully in the process that will contribute to building up real momentum for mediated outcomes.

For further information on mediation and other alternative dispute resolution services that the Litigation and Dispute Resolution team in ByrneWallace can provide, please contact Department Head, Jon Legorboru.