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.
For further information and advice in relation to “The Mediation Act 2017”, please contact Deirdre Farrell, partner, Amorys Solicitors firstname.lastname@example.org, telephone 01 213 5940 or your usual contact at Amorys.