The Mediation Act 2017 (“the Act”) commenced into law on 1st January 2018.
The objective of the Act is to promote mediation as an effective and efficient alternative to court proceedings, reducing legal costs, speeding up the resolution of disputes and reducing the stress and uncertainty of court proceedings.
Mediation is defined in the Act as “a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute.”
The mediator is entirely independent and is appointed by the parties. The mediator has no decision making powers and cannot force the parties to accept an agreement. The parties determine if and when a mediation settlement has been reached. With regard to enforcement, the Act provides that a mediation settlement shall have effect as a contract between the parties to the settlement save where it is expressly stated to have no legal force until incorporated into a formal agreement.
The Act introduces a new obligation for solicitors. In advance of issuing any proceedings, a solicitor should advise a client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings.
Section 14 of the Act requires that when proceedings are issued the practising solicitor must accompany with the proceedings a statutory declaration evidencing that the solicitor has performed the obligations imposed on him/her by the Act
If the originating document is not accompanied by such declaration the court concerned shall adjourn the proceedings for such period as it considers reasonable to enable the practising solicitor to comply with the obligation and provide the court with such declaration.
The Act provides that the fees and costs of the mediation shall be reasonable and proportionate to the importance and complexity of the issues at stake and to the amount of work carried out by the mediator.
Section 16 of the Act provides that a Court can, on the application of a party involved in proceedings, or of its own motion where it considers it appropriate to do so, invite the parties to consider mediation as an option. If the parties decide to engage in mediation, the court may adjourn the proceedings to facilitate the effective use of mediation.
The Court may take in to account any unreasonable refusal or failure by a party to the dispute to consider utilising mediation to resolve the matter, following an invitation to do so under section 16 of the Act. If a party unreasonably refuses to enter mediation, after being invited to do so by the Court, then the Court could consider this when making the relevant costs order at the end of the hearing of the dispute.
Mediation is confidential save for the exceptions set out in sections 10 (2) and 17 of the Mediation Act.
Mediation is voluntary and may not be an appropriate means of resolving all disputes for example where the safety of a client and/or their children is at risk.
The type of Mediator required depends on the nature of the dispute.
Richael O Driscoll and Claire McCarthy of this office are accredited Mediators. Should you require further information about Mediation please contact Richael or Claire at 021 4278131 or by email at richael.odriscoll@fodlaw.ie or claire.mccarthy@fodlaw.ie
