Ireland's new Mediation Act
This is a guest publication from Irish law firm Eugene F. Collins
This new Act was signed into law in Ireland on 2 October 2017 and came into force on 1 January 2018. The Act contains provisions for a statutory framework to promote the resolution of disputes through mediation as an alternative to court proceedings.
The Act applies to all civil proceedings; however, it is important to bear in mind that the Act does not apply to the following:
(a) Arbitration (within the meaning of the Arbitration Act 2010);
(b) Employment disputes;
(c) Taxation or revenue matters;
(d) Judicial Review proceedings; and
(e) Other types of proceedings as set out in Section 3 of the Act.
Mediation in Ireland has long been used as a means of alternative dispute resolution and the Act has been well received by the profession as a means of reinforcing and supporting the mediation process.
What changes does the Act introduce?
Arguably the most significant change which the Act has brought about is contained in Part 3. This introduces an obligation on solicitors and barristers to advise their clients to consider using mediation to resolve a dispute, prior to taking any steps towards issuing legal proceedings.
If the matter still proceeds to litigation, the originating document by which the proceedings are instituted must be accompanied by a statutory declaration sworn by the solicitor as a means of evidencing that the solicitor has complied with the obligations set out within Part 3 of the Act.
Other changes of note include a provision that a court may, either on its own initiative or on the application of any of the parties, invite the protagonists to consider mediation as a means of alternative dispute resolution. Where the parties subsequently apply to re-list the matter, a written report must be provided by the mediator to the court setting out a statement of reasons as to why a mediation did not take place or, where the mediation did in fact take place, a statement as to whether or not a settlement has been reached by the parties.
Section 18 of the Act provides for a helpful mechanism to stop the Statute of Limitations running when parties formally engage in the mediation process.
The Act also contains general principles for the conduct of mediations and provides for the possible future establishment of a Mediation Council to oversee further development and promotion of this as an alternative to court proceedings.
Practical tips for practitioners
As set out above, from the date the Act comes into force (i.e. 1 January 2018), solicitors are legally required, prior to issuing proceedings on behalf of their client, to advise the client to consider mediation as a means of attempting to resolve the dispute. The solicitor must also provide the client with information in respect of mediation services and the advantages of resolving the dispute otherwise than by way of court proceedings.
After doing so, and if the dispute proceeds to litigation, the solicitor must then swear a statutory declaration in accordance with the Act and this must be filed with any originating summons issued on behalf of their clients.
There is no specific guidance in the Act as to how the obligation set out in Part 3 should be complied with but it would seem that in order to avoid any risk of non-compliance, a solicitor should prepare a template letter to be sent out to all clients at the outset of any new dispute. The Law Society have now circulated a template of such a letter, for the purposes of complying with Section 14 of the Act, which contains the provisions detailed above.
This letter should be issued to a client as part of the initial engagement process with the client (in a similar manner to which a solicitor is obliged to issue an engagement letter for legal costs). The letter should set out in appropriate detail information regarding the use of mediation as a means of dispute resolution and how it should be considered by clients before any proceedings are commenced.
Finally, practitioners should be aware that any obligations imposed on solicitors under the Act, apply to any solicitor holding a practising certificate, regardless of whether the solicitor is in private practice or in-house.
The Act, if properly implemented, should result in a reduction in both legal costs and court resources.
However, it remains to be seen on how useful the Act is for matters that are historically incompatible with mediation.