Courts & Mediation
Pre-Commencement Duties
Solicitors must advise their clients in relation to mediation as an alternative to court proceedings. They must provide clients with information in relation to mediation services and the advantages and benefits of mediation. Mediation remains voluntary.
A solicitor acting in proceedings must make a statutory declaration that he or she has complied with the requirement. Proceedings may be adjourned where the declaration has not been provided. Courts have jurisdiction to adjourn proceedings to enable alternative dispute resolution, in particular mediation.
Every statutory declaration required by the 2017 Act shall be filed in the Central Office and a copy served on the defendant.
Court Facilitation
The court has discretion to adjourn proceedings to facilitate mediation. They may seek to put pressure on the parties. However, mediation remains voluntary.
The Court may issue an invitation to consider mediation of its own motion in any civil proceedings to which the 2017 Act applies, on any occasion on which such proceedings are before the Court. Where, following an invitation by the Court, the parties decide to engage in mediation, the Court may, having heard the parties, make such orders in accordance with the 2017 Act as it considers appropriate.
An application by a party to civil proceedings for an order adjourning the proceedings shall be by motion on notice to the other party or parties but need not be grounded upon any affidavit.
If all of the parties to civil proceedings (including any third parties) agree at a mediation on the terms of an order to be made, including an order for the final disposition of the proceedings, the Court may make the order.
Criteria for Adjournment
When the court is considering whether to make an order to adjourn proceedings it will have regard to
- manner of conduct of litigation to date of application
- existence of interlocutory orders
- nature and potential expense of ADR
- likely effect of making the order sought on the progress of litigation
- potential saving in time and cost that might result from the process
- extent to which ADR might narrow the issues between the parties
- proposal made by the applicant regarding the issues that might be dealt with in the course of ADR
The court may order adjournment proceedings for mediation before full disclosure. The court may consider that the cost v benefit of mediation and resolution before discovery, Â which is potentially expensive. This mean that it is reluctant to order discovery before mediation. However, in many cases discovery may be necessary to enable mediation. In appropriate cases the discovery order may be tailored to what is required for mediation to succeed.
Effect on Time Limits
Notwithstanding any other provision of the Rules, if proceedings are referred to mediation, the time for taking any step in the proceedings under any of the Rules shall, unless the Court otherwise orders, be calculated as if time did not run during the period of any adjournment to facilitate the mediation.
Making Rule of Court
An application may be made for an order making the agreement a rule of court and such an order shall be enforceable against the parties or any of them.
It may be made by originating motion ex parte grounded on an affidavit exhibiting the agreement concerned and entitled in the matter of that agreement and in the matter of the Regulations. Subject to the power conferred on the Master to require a party who is not an applicant to verify, by affidavit or otherwise, that party’s consent to the application, the affidavit shall exhibit the written consent of each other party to the mediation who is not an applicant.
Enforcing Mediated Settlement
An application to enforce the terms of a mediation settlement shall:
- where the mediation settlement concerns proceedings pending before the Court, be by notice of motion, or
- where there are no proceedings pending before the Court concerning the subject matter of the mediation settlement, be by originating notice of motion,
In either case grounded upon an affidavit sworn by or on behalf of the moving party which shall exhibit and verify the mediation settlement.
Copies of the originating notice of motion or notice of motion, grounding affidavit and any exhibits shall be served on each other party to the mediation settlement and filed not later than 14 days before the date fixed for the hearing of the application.
Each other party to the mediation settlement may serve and file a replying affidavit not later than seven days before the date fixed for the hearing of the application.
Mediator Report
A mediator’s report shall be entitled as in the proceedings to which it relates and shall be submitted to the Court by the filing by the mediator of an affidavit verifying and exhibiting the report.
An application for a direction to dispense with the requirement that a copy of the report be given to the parties at least seven days prior to its submission to the Court may be made ex parte.
Other ADR processes
The Court, on the application of any of the parties or of its own motion, may, when it considers it appropriate and having regard to all the circumstances of the case, order that proceedings or any issue therein be adjourned for such time as the Court considers just and convenient and—
- invite the parties to use another ADR process to settle or determine the proceedings or issue, or
- where the parties consent, refer the proceedings or issue to such process,
and may, for the purposes of such invitation or reference, invite the parties to attend such information session on the use of another ADR process, if any, as the Court may specify.
Where the parties decide to use another ADR process, the Court may make an order extending the time for compliance by any party with any provision of the Rules or any order of the Court in the proceedings, and may make such further or other orders or give such directions as the Court considers will facilitate the effective use of that process.
An application by a party for an order shall be by motion on notice to the opposing party or parties, or without such motion at any other time when the proceedings are before the Court.
Save where the Court for special reason to be recited in the Court’s order allows, an application for an order shall not be made later than 28 days before the date on which the proceedings are first listed for hearing.
Costs of Mediation
Unless ordered by a court or otherwise agreed between the parties, the parties shall—
- pay to the mediator the fees and costs agreed in the agreement to mediate, or
- share equally the fees and costs of the mediation.
The fees and costs of a mediation shall be reasonable and proportionate to the importance and complexity of the issues at stake and to the amount of work carried out by the mediator.
Costs in Proceedings
The court in deciding on the award of costs in the legal proceedings as a whole, may consider whether the party were invited by the court to settle a claim by mediation or other ADR. If it is considers that the parties were unreasonable in refusing to engage in mediation this may bear upon the decision as to liability for costs.
The court in awarding costs may have regard to the unreasonable refusal of a party to consider using mediation or attend mediation.