The Mediation Act 2017 and Litigation in Ireland

Many of the provisions of the Mediation Act 2017 (“the Act”) which became effective on 1st January 2018, placed already existing practices in relation to mediation on a statutory footing.  However the Act’s statutory promotion of mediation as a viable, effective and efficient alternative to court proceedings is no doubt a welcome introduction for litigants in Ireland.

Whilst before the Mediation Act 2017 came into force it was the practice of many if not most solicitors and barristers to advise clients of the benefits and mechanics of mediation as an alternative to court proceedings, there is now a statutory obligation on them to do so.  Under the Mediation Act 2017, the High Court now has the power to stay or halt proceedings where a solicitor has not confirmed to the Court by way of a certificate that the Plaintiff has been advised of mediation in the terms prescribed by section 14 of the Act.  The Act, as it currently stands, does not require solicitors acting on behalf of defendants to file a similar statutory declaration although they will no doubt advise their clients of the benefits of mediation in practice given the risks of the making of adverse costs orders outlined below.

It has always been open to a Court to consider a party’s conduct in litigation (in particular in relation to mediation) when making costs orders (order 99 of the Rules of the Superior Courts) too but the Act further highlights judicial scrutiny in this area. There is arguably therefore additional risk for a defendant that s/he could be held liable in full or in part for a plaintiff’s costs of litigation, should it decline mediation.  Section 21 of the Mediation Act 2017 further strengthens “judicial discretion” to take into account “any unreasonable refusal or failure” of a party to consider or attend mediation when awarding costs at the conclusion of court proceedings. This is no doubt a welcome introduction for litigants who may not have sufficient resources for lengthy and protracted court proceedings.

There is no statutory obligation on parties to agree to mediation but if parties to a dispute do so, the Act provides that a ‘Mediation Agreement’ is to be signed by both parties specifically dealing with the appointment of a mediator, payment of his/her costs, the place and time of the mediation and the way in which it is to be conducted and explicitly acknowledging that the mediation and all reports, notes and records resulting therefrom are confidential and cannot be used in court proceedings.  The benefit of the Mediation Agreement is that it provides certainty for the parties thereto and a clear timeline for the way in which their dispute will be dealt with.  The confidentiality requirement can also be attractive for many commercial and family law litigants.

The Act further codifies the role of a mediator and provides for the introduction of Codes of Practice for the conduct of mediation by qualified mediators. A mediator who subscribes to a particular code of conduct must provide a copy of the code to each party involved in the mediation.  At present there are no codes of conduct prescribed for mediators in Ireland and mediators are unregulated here.  The Law Society of Ireland recommended in its Submissions at the Committee Stage of the bill that the Act would go further than it has in this regard but the opportunity was not seised at that stage.

A Mediation Agreement, when signed by all parties to a dispute has the effect of stopping the time within which to bring court proceedings under the Statute of Limitations Act until 30 days after the mediation process has terminated.  This will be a welcome introduction for litigants some of whom who prior to the introduction of the Act, submitted to mediation at a stage when due to time constraints, it was necessary to issue court proceedings in tandem with the mediation process resulting in two ‘sets of costs’ for both parties.  The suspension of the statute of limitations during the mediation process is therefore extremely beneficial for parties to a dispute.

The new provisions in the Act requiring parties to consider mediation should be helpful in removing what may be seen as an obstacle to mediation or negotiation in practice. There can be occasions where parties do not want to propose mediation or negotiation as it may be misinterpreted as a sign of weakness. This new statutory obligation on solicitors, including importantly in house solicitors, to inform clients of the mediation process and the requirement to consider it before issuing proceedings may make parties less concerned about this possibility and should offer a feasible and cost effective alternative to court proceedings.

The Mediation Bill 2017 was passed by the Houses of the Oireachtas and enacted on October 2 2017. On December 13 2017 the Minister for Justice and Equality signed the Commencement Order of the Mediation Act 2017 and all sections were commenced as of January 1 2018.

© November 2018

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice.  Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.

 

If you would like to comment or enquire about any aspect of this article please contact deirdre@amoryssolicitors.com , tel 00353 1 213 59 40.

WHAT TO BRING TO YOUR FIRST MEETING WITH YOUR SOLICITOR

EMPLOYMENT LAW 

CLAIMS FOR UNFAIR DISMISSAL OR REDUNDANCY

WHAT TO BRING TO YOUR FIRST MEETING WITH YOUR SOLICITOR

Employees who have been dismissed may require legal advice as to whether or not grounds exist to support a claim against their previous employer under unfair dismissal, equality or legislation applicable to their circumstances.

It is important for a claimant to decide whether or not to make a claim against his/her employer at an early stage.  Aside from the time and emotional investment of making such a claim, there are strict time limits within which such claims must be made (usually 6 months).  In order to get the most out of your meeting and for your solicitor to advise you fully, s/he will need to know the full circumstances surrounding the termination of your employment and will need copies of all relevant documentation.

Whilst every case is different, generally speaking your solicitor will need the following documents to advise you as to whether or not you have a claim:

  1. A brief summary of the history of your employment, including a list of individuals involved and a note of their role within the organisation;
  1. Your original employment contract and any contracts amending same;
  1. Most recent employment law handbook given to employees;
  1. Your employer’s disciplinary procedure (if not included at No. 2 above);
  1. A copy of all warning letters, reports and findings of investigations;
  1. Copies of all company policies;
  1. If your claim relates to bullying and harassment, copies of all relevant emails; reports/findings from investigation;
  1. If you suffered physical injury from any event, copies of all sick notes, medical reports and x-rays.

If you have a soft copy of the documents, we would suggest that you forward them to your solicitor by email in advance of the meeting so that s/he can be fully prepared.

It is important to note it often happens that employees do not have all of the above documents at the time of an initial consultation but that they require legal advice urgently due to the time limits involved.  In such circumstances, if your solicitor is of the view from what you say that you do, in fact, have a claim, s/he could assist you in filing a complaint form in the Workplace Relations Commission to ‘stop the time’ from running which would give you time to obtain all relevant documents.  It is always open to a claimant to withdraw his/her claim prior to a hearing at no risk of having to pay the employer’s legal costs.

Amorys Solicitors has more than 30 years’ experience practising the employment law and successfully represented the plaintiff in the seminal case of McGrath-V-Trintech which established the right in common law of an ex-employee to claim damages from an employer for psychiatric harm suffered due to stress at work.

 

If you would like to arrange an initial consultation to discuss whether or not grounds exist for a claim against your employer under unfair dismissal or equality legislation, please contact Deirdre Farrell of Amorys Solicitors, Suite 10, The Mall, Beacon Court, Sandyford, Dublin 18, tel 01 2135940, email: Deirdre@amoryssolicitors.com

News

Davnet O’Driscoll has been invited to speak to the Dublin Solicitors Bar Association on the duties of solicitors as Officers of the Courts at the Regulatory Continuing Professional Development Conference for solicitors on 21st April 2015 at the Radisson, Golden Lane, Dublin 8.