Ireland's Mediation Act
In honour of St Patrick’s day this month, we have turned the spotlight on Ireland which has a brand new Mediation Act.
The Mediation Act came into force on 1 January 2018 and followed many of the 2010 recommendations from the Law Reform Commission’s report on ADR.
It applies to all civil proceedings but with some notable exclusions such as arbitration, employment, taxation, judicial review proceedings.
The Act sets up a coherent comprehensive regulatory framework for mediation in Ireland. Prior to this, there had been much criticism of previous ADR reforms which had been introduced in a piecemeal fashion with little statutory support.
With the new Act comes a set of provisions which have been well received as a means of reinforcing and supporting the mediation process. With any new Act, there are likely to be teething problems particularly around interpretation of key provisions.
Part 2 of the Act deals with the mediation process in general and reinforces key principles that make mediation so effective namely;
1. It is a voluntary process
3. The outcome is determined by the Parties
4. The role of the mediator is not to make proposals unless invited to by the Parties (who do not have to accept such proposals)
5. The importance of the Agreement to Mediate
In relation to the Agreement to Mediate, the Act provides a helpful mechanism to stop the Statute of Limitations running. By signing the agreement, the limitation clock is temporarily suspended for a specified period during which the mediation process is conducted.
The most significant changes are in Part 3 of the Act which introduces statutory obligations on legal advisors and potential litigants to consider mediation ahead of commencing litigation.
A key provision is that the legal advisors shall prior to issuing proceedings advise clients to consider mediation as a means of resolving their dispute. The Act obliges solicitors to provide their clients with information on mediation services and on the advantages and benefits of mediation.
If the matter continues to litigation, the solicitor must swear a statutory declaration confirming they have complied with the Act’s obligations to advise and discuss mediation with their clients.
The Act provides that the Court may, either on its own initiative or on the application of any of the parties, invite them to consider mediation. If the parties come back to Court following such an invitation, a written report must be provided by the mediator setting out reasons as to why it did not take place or, where a mediation did occur, a statement as to whether or not a settlement has been reached.
The Court under the Act can impose costs sanctions for cases where it is of the view that a party has ‘unreasonably refused’ or failed to consider mediation. This gives statutory strength to the Courts’ inherent jurisdiction to penalise for unreasonable refusal. There has been a reluctance to exercise this power to date due to the voluntary nature of mediation and a parties’ constitutional entitlement to have their rights determined by a Court.
The Act also makes provision for a Mediation Council to be established and a code of practice for mediators developed in order to set standards and oversee further development of mediation within the legal process.
Given that in England we do not have a Mediation Act or a clear agreed code of practice, it will be very interesting to see how Ireland moves forward with these provisions.
With the Civil Justice Council considering the role of mediation and whether it should be given a more robust position within the English judicial system, the success of Ireland’s Mediation Act may be worthy of a watching brief.