Mediation Archives - J.W. O'Donovan Solicitors

In our third and final article on the topic, we will look at the roles of some of the parties involved in the Mediation process. For previous articles in the series, click here for our overview on the advantages of Mediation and here for more on why the Mediation Act is welcome.

Role of Mediator

Section 8 of the Mediation Act 2017 places the following obligations on the Mediator during the Mediation process:

Declare any conflict of interest which they become aware of during the course of the Mediation and, unless the parties agree otherwise, cease to act in such circumstances
Act with impartiality and integrity and treat the parties fairly
Complete the Mediation as expeditiously as is practicable, having regard to the nature of the dispute
Ensure that the parties are aware of their rights to obtain advise (including legal advise) prior to signing any Mediation Settlement
The Mediator shall not make proposal to the parties to resolve the Dispute as Mediation should be determined by the agreement of the parties, unless otherwise requested

Role of the Court

Part 4 of the Act deals with the role of the Court in Mediation. Section 16 provides that a Court may on the application of a party or on its own motion invite the parties to consider Mediation and provide the parties with information about the benefits of Mediation to settle their dispute.

Following an invitation by the court where the parties to decide to engage in Mediation, the Court may:

Adjourn the proceedings
Make an Order extending time for compliance by a party with Rules of Court or with any Court Order; or;
Make such other Order or direction, as is necessary to facilitate the effective use of Mediation

Section 17 goes on to say that following an invitation by the Court under Section 16(1), the parties to the proceeding do engage in Mediation and, afterwards, then apply to the Court to re-enter the proceedings, the Mediator is obliged to submit a written report to Court setting out:

If the Mediation did not take place, the reasons why it did not occur or;
Where the Mediation did take place, a statement as to whether or not a settlement has been reached and if so, a statement of terms of this settlement. A copy of this report must be provided to each party at least seven days prior to its submission by the Mediation to the Court.

Whilst the mandatory nature of these provisions may be considered to conflict with the confidential and voluntary nature of Mediation, such reports will likely be drafted in such a manner as not to disclose any confidential material. The Law Reform Commission had recommended that any such report should be limited to a neutral summary of the outcome.

Under Section 21 of the Act, a Court may now have regard to any unreasonable refusal or failure by a party to consider or attend mediation. This means that any party who refuses to mediate are at risk of having to discharge the costs incurred by the other side.

This would appear contradictory, given the voluntary nature of mediation and that parties should not be forced into mediation where they are unwilling to do so. It remains to be seen how the Courts will interpret this part of the Act, particularly in disputes involving debts due and owing. There is also no provision for a party or indeed the Mediator to advise the Court of a party merely attending as a box ticking exercise.

Bullying and harassment claims are now heard since 2018, in the Personal Injuries list in Dublin (as opposed to the non-jury list). The relevant Practice Direction says nothing about Mediation.

However, the Legal Diary now in addition states as follows;

“HC76 NOTICE With effect from Trinity Term 2018 the following arrangements will apply to Personal Injuries Actions arising from allegations of bullying and or harassment. Upon application for a trial date before either the Deputy Master or the Judge in charge the case must be identified as one arising from such allegations. No case shall be listed for trial unless and until the parties have been to Mediation save for good reason.”

This does not confirm who should pay the Mediator’s fee (and what happens if one party cannot do so) except that now the Court will not list it for trial “unless and until the parties have been to Mediation save for good reason”. Again, this direction appears to go against the voluntary nature of Mediation.

Role of the Mediation Council

Section 12 provides for the potential establishment of a Mediation Council to oversee the development of the Mediation sector. The intention appears to be that the Council would represent the interest of the Mediators and the public interest, and the Minster may declare such body to be the “Mediation Council of Ireland”. This body must be sufficiently representative of the Mediation interests and also meet minimum requirements provided for in the Schedule of the Act. Such a Council would likely become the regulation for the Mediation sector; however, it remains to be seen whether such a Council will be established and how it will be funded.

For more information on the Mediation process, contact:

Following our recent review of the advantages of mediation, in this article, we will look at why the processes and procedures set out in the Mediation Act 2017 are welcome.

Obligations for solicitors to advise Clients on Mediation

The Mediation Act 2017 imposes new obligations on solicitors, including a statutory declaration. Under the Act, practising solicitors are required, prior to issuing proceedings on behalf of a client, to do the following:

Advise the client to consider mediation as a means of attempting to resolve the dispute
Provide the client with information in respect of mediation services, including the names and addresses of persons who provide mediation services
Provide the client with information about the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and the benefits of mediation
Advise the client that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk
Inform the client of the matters concerning confidentiality and enforceability of mediation settlements as set out in the Act

Section 14(2) provides that the originating document by which proceeds are instituted shall be accompanied by a Statutory Declaration made by the solicitor evidencing (if such be the case) that the solicitor has performed the obligation under Section 14(1) in relation to the client and the proceedings to which the Declaration relates.

While it may be thought that the mandatory nature of the provisions of Section 14 are somewhat incompatible with the Solicitor and the client having to consider when is the appropriate time to consider Mediation, having regard to the nature of the proofs available to the parties, the section does little more than oblige Solicitors to provide minimal advices to the client.

The Section clearly also applies to debt collection litigation.

Mediation Settlements can now be legally binding

We now have clarity about achieving a legally binding agreement in mediation. Any party to the mediation now has the right to decide if a legally binding agreement is required, drafted by the mediator, as an outcome of mediation. This is given statutory footing by Section 11 of the Act. Subject to this, a Mediation Settlement, as a compromise, “shall have effect as a contract between the parties”, save where it is expressly stated to have no legal effect until it is incorporated in a formal legal agreement or contract to be signed by the parties.

Limitation Periods are now extended

The Act extends limitation periods by the period commencing on the day on which the agreement to mediate is signed (presumably meaning the date on which all parties have executed) and ending on the day which is thirty days after either a mediation settlement is executed or the mediation is terminated. The mediator is obliged to inform the parties in writing of the date on which the mediation ends.

Conclusion

The statutory obligation now placed on solicitors to advise clients on Mediation has resulted in an increase in the number of Mediations and the demand for Mediators. The Act has provided solicitors and clients with a practical and cost-effective solution to deal with disputes quickly whilst avoiding the potential public exposure which can occur when litigating through the courts. Mediation will not be an appropriate resolution for all disputes, however it is a useful tool to consider before the issuing of court proceedings is contemplated.

In our next and final article on this topic, we will look at the role of each party in Mediation. For more information, contact:

Mediation

The roles of parties involved in Mediation

Why the Mediation Act is welcome