Mediation Act Scope
Mediation act 2017 was designed to provide a single legal framework for mediation. Mediation is an alternative method of dispute resolution court proceedings. It Seeks to reduce costs, relieve stress and acrimony and and speed up dispute resolution.
“mediation” is defined as a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute;
The mediation act framework is additional to other legal provisions providing for mediation and other alternative dispute resolution
Participation in mediation is voluntary. A party may withdraw at any time. Mediation may take place before or after proceedings have issued and at any time before the dispute is resolved.
The legislation does not apply to certain types of proceedings,
- proceedings under the Arbitration Act,
- disputes arising within an employment context referred to statutory dispute-resolution processes such as those provided by the Workplace Relations Commission;
- matters under tax and customs legislation;
- proceedings under the Child Care Acts or the Domestic Violence Acts.
- judicial review proceedings and proceedings against the State in respect of alleged infringements of fundamental rights and freedoms.
A party may be accompanied by another person (including a legal adviser) who is not a party to the mediation . It is a a matter for the parties themselves to determine the outcome of the mediation. Both the mediator and the parties are, however, required to make every reasonable effort to conclude the mediation in an expeditious manner in order to minimise the costs involved.
A mediator may withdraw from the mediation at any time during the mediation by notice in writing to the parties stating the mediator’s general reasons for the withdrawal. This could arise, for example, from the emergence of a possible conflict of interests for the mediator during the mediation. Fees paid in advance to any extent are to be refunded. These are not to be contingent on the outcome under any circumstances.
Agreement & Confidentiality
Before commencement mediation the parties concerned and proposed mediator are to sign an agreement to mediate document. This is to appoint a mediator and also to deal with the following
- he manner in which the mediation is to be conducted;
- the manner in which the fees and costs of the mediation will be paid;
- the place and time at which the mediation is to be conducted;
- the fact that the mediation is to be conducted in a confidential manner;
- the right of each of the parties to seek legal advice;
- the manner in which the mediation may be terminated;
- such other terms (if any) as may be agreed between the parties and the mediator.
There is a general confidentiality obligation on the mediator and parties to a mediation. This does not, , apply where disclosure is necessary in order to implement or enforce a mediation settlement or is otherwise required by law. Disclosure may also be justified where necessary to prevent physical or psychological injury to a party or to prevent commission or concealment of a crime.
Role of the Mediator.
Prior to the commencement of the mediation, the mediator is to make reasonable enquiries to determine whether he or she may have any actual or potential conflict of interest; a mediator may not act in the event of such a conflict.
The mediator must supply details of qualifications, training, experience and anycode of practice to which he or she adheres and act with impartiality and integrity throughout the mediation. It is a matter for the parties themselves to determine the outcome of the mediation and the mediator should not normally make any proposals to the parties to resolve the dispute.
Nonetheless, the mediator may, at the express request of all of the parties, make proposals to resolve the dispute but it will be a matter for the parties themselves to determine whether to accept any such proposals.
Enforceability of Mediation Settlements
It is a matter for the parties themselves to determine if and when a mediation settlement has been reached between them and whether it is to be enforceable between them. Where a mediation settlement is reached, it will operate as a contract between the parties to the settlement except where it is expressly stated to have no legal force until incorporated into a formal legal agreement or contract to be signed by the parties.
A court may enforce the terms of a mediation settlement subject to certain safeguards. It may, for example, refuse to do so if satisfied that the mediation settlement does not adequately protect the rights and entitlements of the parties, or any dependents, or where a party to the mediation settlement has been unduly influenced any other party in reaching the settlement.
Where a mediation settlement relates to a child, the court must have regard to the best interests of the child as the paramount consideration.
Oversight and Regulation
Many of those who practice as mediators, e.g. lawyers, barristers, accountants, engineers, etc. are already subject to the regulatory structures of their own professions. The legislation does not set out a comprehensive regulatory structure for mediators.
Matters relating to the ethical standards, confidentiality, redress procedures etc. applicable to mediators are to be set out in codes of practice prepared and published by the Minister or approved by the Minister having been prepared by another person or body.
A mediator is required to furnish a copy of any code of practice to which he or she adheres to the parties in order to ensure that they are aware of the standards to which the mediator has committed
Codes of Practice
The Minister for Justice may make codes of practice which may, inter alia, contain provisions in relation to matters such as
- continuous professional development
- requirements for mediators;
- procedures to be followed during mediation;
- ethical standards for mediators;
- confidentiality obligations; and redress procedures in the event of dissatisfaction with the conduct of a mediation.
Alternatively, the Minister may approve a code of practice prepared by another person or body (e.g. mediation body). The procedures for putting codes of practice in place are provided in the legislation.
Duty of Solicitor before Litigation
A practicing solicitors must before issuing proceedings on behalf of the client advise clients to consider mediation as an alternative to court proceedings. For this purpose, they must provide clients with information on mediation services, including details of mediators, information about the advantages and benefits of mediation, and information on confidentiality obligations and the enforceability of mediation settlements.
Where court proceedings are instituted on behalf of a client, the application must be accompanied by a statutory declaration made by the solicitor confirming that these obligations have been discharged in relation to the client and the proceedings to which the declaration relates. If the declaration is not submitted, the court will adjourn the proceedings until the solicitor complies with the requirements.
There are similar obligations in relation to practising barristers. It would apply in circumstances in which a practising barrister may in future be permitted, under relevant provisions of the Legal Services Regulation Act 2015, to issue proceedings on behalf of a client who is not represented by a practising solicitor.
Role of Court in Mediation
A court may, on application by a party to proceedings or of its own motion where it considers it appropriate to do so, invite the parties to the proceedings to consider mediation as a means of attempting to resolve the dispute before the court. For this purpose, it may provide the parties with information about the benefits of mediation.
Where the parties decide to engage in mediation, the proceedings may be adjourned. Where the parties decide to engage in mediation and subsequently apply to the court to re-enter the proceedings, the mediator will be required to make a report to the court outlining the outcome of the mediation.
Where the court has invited the parties to engage in mediation, the court may, where it considers it just to do so, take into account any unreasonable refusal or failure by a party to consider using mediation, or to attend mediation, when awarding costs in such proceedings.
A court of its own motion may direct the parties in a personal injuries action to meet to discuss and attempt to settle the action by means of mediation.
The period of time during which mediation took place is disregarded for the purpose of a limitation period under the Statute of Limitations.
Mediation Stay Proceedings
Where the parties have entered into an agreement to mediate but one or more of them commences legal proceedings in respect of the dispute to which the agreement applies. The other party may apply to court to adjourn the proceedings. The court shall make an order adjourning such proceedings if it is satisfied that
- there is not sufficient reason why the dispute in respect of which the proceedings have been commenced should not be dealt with in accordance with the agreement to mediate, and
- the applicant party was at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary for the proper implementation of the agreement to mediate.
Fees and costs of Mediation
The agreement to mediate should specify the manner in which the fees and costs of mediation will be paid. Such fees and costs must be reasonable and proportionate to the importance and complexity of the issues at stake and the amount of work undertaken by the mediator. U
Unless otherwise ordered by a court or agree the party shall pay the fees and costs as agreed in the agreement or shall share the same equally.
The legislation allows for the possible future establishment of a body to be known as the Mediation Council of Ireland. Where the Minister is satisfied that a body complies with the minimum standards set out in the Schedule to the legislation and is, at the same time, sufficiently representative of mediation interests involved in the mediation sector, he or she may make an order declaring that that body will be recognised for the purposes of the legislation as the Mediation Council of Ireland.
Such a body would then undertake the functions set out , including the promotion of public awareness on the availability and operation of mediation services, and the development of standards in the provision of mediation services.
It would also take on the task of preparing codes of practice for approval by the Minister and the establishment of a register of mediators who have subscribed to such a code. It is intended that such a Council would be funded from fees calculated in accordance with its own rules.
The Mediation Council of Ireland would, if established, be independent in the performance of its functions, and would consist of not less than 11 members (5 of whom would be representative of bodies promoting mediation services or representing the interests of mediators and 6 of whom, including the chairperson, would represent the public interest).
Mediation Information Sessions
In its 2010 Report, the Law Reform Commission underlined the potential benefits of mediation in family law proceedings as an alternative to adversarial court proceedings and recommended that parties be required to attend information sessions in advance of the commencement of such proceedings during which the benefits and advantages of mediation could be explained.
The Minister for Justice may, for the purpose of ensuring the availability of such sessions at a reasonable cost and in suitable locations, prepare and publish a scheme for the delivery of such sessions, or approve a scheme for the delivery of such sessions by another person or body. The Legal Aid Board is, e, already involved in the provision of a free family mediation service. Details of the procedure for adopting such a scheme are set out in the legislation.
The legislation contemplates that that mediation information sessions may be made compulsory for parties in where it is claimed that a testator has failed in his or her moral duty to make proper provision for the child, and where in the case of a surviving civil partner it is claimed that provision should be made for a child out of the deceased’s estate.