The Mediation Bill 2017 was passed by the Houses of the Oireachtas and enacted on October 2 2017. On December 13 2017 the minister signed the commencement order of the Mediation Act 2017 and all sections were commenced as of January 1 2018.
The act's objective is to further promote mediation as an attractive alternative to court proceedings, in terms of time, cost, resources and the avoidance of acrimony. Although mediation may not be suitable for all disputes, the act provides a platform for parties to resolve their difficulties without commencing litigation where appropriate (albeit certain classes of case are excluded from its scope).
The key provisions of the act include the following:
- The introduction of an obligation on practitioners to advise their clients to consider mediation as an alternative to court proceedings. Should a client elect not to proceed to mediation before litigating, a solicitor must give a statutory declaration confirming that the client has been advised as to the option of mediation. Proceedings may be stayed where this statutory declaration has not been provided. Practitioners and clients should be mindful of these obligations imposed under Section 14 of the act.
- Provision for a statutory power permitting a court, on its own initiative or the initiative of one of the parties, to invite the parties to consider mediation and provide for the suspension of court proceedings to facilitate the process (although this was already provided for under Order 56A of the Rules of the Superior Courts).
- Before the commencement of mediation, the parties and proposed mediator must sign an agreement to mediate, which appoints the mediator and sets out the agreed framework for the mediation. Signing this agreement effectively stops the clock for bringing claims under the statute of limitations until 30 days after termination of the mediation.
- Provision for the introduction of codes of practice for the conduct of mediation by qualified mediators.
- The introduction, on a statutory basis, of cost implications for a party which unreasonably refuses or fails to consider mediation.
- The act reinforces existing provisions in the Rules of the Superior Courts and practices regarding mediation in the High Court.
It remains to be seen whether the act will lead to an increase in mediation and a reduction in litigation. However, the obligations referred to under Section 14 are the most significant from practitioner and client perspectives. Any party looking to commence litigation in Ireland should therefore not be surprised to hear about mediation as an option before proceedings are commenced.
This article was first published in the International Law Office Arbitration and ADR Newsletter on Thursday, 15 February.
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