knowledge 16 February 2017 |

Mediation Bill Finally Here

The new legislation will apply generally to “any civil proceedings”. However, it is proposed to exclude certain disputes from the ambit of the new Act. These include arbitration, certain employment disputes, matters under tax and customs legislation, judicial review and tribunals of inquiry.

The Bill sets out how the mediation process should operate, the contents of any agreement to mediate, the role of the mediator and the requirements which a mediator should satisfy before being able to act. The process will be voluntary and a party will be able to withdraw from the mediation at any time.

The Bill also provides for the publication or approval by the Minister of codes of practice setting standards for mediators and the conduct of mediations. These will also deal with issues surrounding ethics and confidentiality and contain redress procedures in the event of dissatisfaction with the conduct of a mediation.

The Bill goes on to stipulate that all communications and documents in and around the mediation will be confidential save in limited circumstances, for example, if required by law. The Bill also deals with the enforceability of mediation settlements.

New obligations for legal professionals

The Bill sets out significant new obligations for legal professionals. Under the proposed legislation, prior to issuing court proceedings, solicitors will be obliged to advise clients to consider mediation as an alternative to these proceedings to resolve their dispute. They will be required to provide clients with detailed information on mediation services and the benefits of mediation. Where court proceedings are ultimately instituted on behalf of a client, the application must be accompanied by a statutory declaration from the solicitor confirming that these obligations have been discharged. If the declaration is not submitted, the court will adjourn the proceedings until the solicitor complies with the requirements. Similar obligations will apply to barristers in the event that a barrister may in future be permitted, under the Legal Services Regulation Act 2015, to issue proceedings on behalf of a client who is not represented by a solicitor.

Role of the court

The Bill also deals with mediation in the context of court proceedings, including the adjournment of court proceedings already in being to provide an opportunity for mediation. Where the parties engage in mediation but subsequently seek to re-enter the proceedings, the mediator will be obliged to report to the court on the outcome of the mediation. When awarding costs, the court will be able to have regard to any unreasonable refusal or failure by a party to consider using or to attend mediation.

Regulation of mediators

Many professionals who practice as mediators are already subject to the regulatory structures of their own professions. The Bill does not, therefore, seek to establish a detailed regulatory structure for mediators. Instead, a mediator will be obliged to give a copy of any code of practice to which he or she adheres to the parties so that they are informed of the standards to which their mediator has committed.

The Bill does, however, provide for the possible establishment of an independent Mediation Council of Ireland. This body would be responsible for the promotion of public awareness on the availability and operation of mediation services and the development of standards in the area. It would prepare codes of practice for approval by the Minister and establish a register of mediators who have subscribed to such a code.

Comment

The recognition of the benefits of mediation as an alternative to court proceedings has been steadily building over recent years. While developments at EU level and amendments to the court rules have already put in place some measures to facilitate ADR including mediation, the publication of a dedicated Mediation Bill which provides a comprehensive framework to facilitate the mediation process is a welcome development.