Mediation in Litigation

Table of Contents

Solicitor’s Duty and Mediation

A practising solicitor shall, prior to issuing proceedings on behalf of a client—

advise the client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings,
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, and
inform the client of the next mentioned matters.

Filing Declaration

If a practising solicitor is acting on behalf of a client who intends to institute proceedings, the originating document by which proceedings 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 above obligations imposed on him or her in relation to the client and the proceedings to which the declaration relates.The statutory declaration required shall be in the form specified;

If the originating document is not accompanied by a statutory declaration, the court concerned shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the practising solicitor concerned to comply and provide the court with such declaration or, if the solicitor has already complied, provide the court with such declaration.

Where it is lawful for a practising barrister to issue proceedings on behalf of a client who is not represented by a practising solicitor. obligations analogous to those imposed above on a practising solicitor in relation to a client of the solicitor may be prescribed, subject to such modifications as may be specified in the regulations concerned, to be performed by a practising barrister in relation to a client of the barrister.

Court inviting parties to consider Mediation

The Court may issue an invitation to consider mediation mentioned 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 as it considers appropriate.

A court may, on the application of a party involved in proceedings, or of its own motion where it considers it appropriate having regard to all the circumstances of the case:

invite the parties to the proceedings to consider mediation as a means of attempting to resolve the dispute about the subject of the proceedings;
provide the parties to the proceedings with information about the benefits of mediation to settle the dispute the subject of the proceedings.

Where, following an invitation by the court, the parties decide to engage in mediation, the court may—

adjourn the proceedings,
make an order extending the time for compliance by a party with rules of court or with any order of the court in the proceedings, or
make such other order or give such direction as the court considers necessary to facilitate the effective use of mediation.

Application Procedure

An application by a party shall be made by motion to the court on notice to all other parties to the proceedings not later than 14 days before the date on which the proceedings are first listed for hearing and shall, unless the court otherwise orders, be grounded upon an affidavit sworn by or on behalf of the party.An application to dispense with the requirement for an affidavit may be made ex parte.

This power is without prejudice to any other discretionary power which the court may exercise at any time during the course of proceedings with a view to facilitating the resolution of a dispute.

An application by a party to civil proceedings for an order adjourning the proceedings for mediation shall be by motion on notice to the other party or parties, but need not be grounded upon any affidavit.

An application to the Master under –the European Communities (Mediation) Regulations 2011 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

Mediator Report to Court

Where, following an invitation by the court, the parties to the proceedings concerned engage in mediation and subsequently apply to the court to re-enter the proceedings, the mediator shall prepare and submit to the court a written report which shall set out where the mediation did not take place, a statement of the reasons as to why it did not take place.

Where the mediation took place the parties shall prepare and submit to the court

a statement as to whether or not a mediation settlement has been reached between the parties in respect of the dispute the subject of the proceedings, and
if a mediation settlement has been reached on all or some only of the matters concerning that dispute, a statement of the terms of the mediation settlement.

Except where otherwise agreed or directed by the court, a copy of a report prepared shall be given to the parties at least 7 days prior to its submission to the court.

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.Every statutory declaration regarding advice on mediation option shall be filed in the Central Office and a copy served on the defendant.

Adjourning to facilitate Mediation

Where parties have entered into an agreement to mediate, and one or more of the parties commence proceedings in respect of the dispute the subject of the agreement to mediate, a party to the proceedings may, at any time after an appearance has been entered and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to adjourn the proceedings.

On application to it being made, 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.

Mediated Agreement

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.

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.

Effect of Mediation on Time Periods

In reckoning a period of time for the purposes of a limitation period specified by the Statutes of Limitations, the period beginning on the day on which an agreement to mediate is signed and ending on the day which is 30 days after either—

a mediation settlement is signed by the parties and the mediator, or
the mediation is terminated,

whichever first occurs, shall be disregarded.

The mediator in a mediation shall inform the parties in writing of the date on which the mediation ends.

If proceedings are referred to mediation, the time for taking any step, unless the Court otherwise orders, be calculated as if time did not run during the period of any adjournment to facilitate the mediation.

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.

Costs

In considering the awarding of the costs, the court of adjudicator may where it considers it just, have regard to

unreasonable refusal or failure by a party to the proceedings to attend mediation, following an invitation to do so
refusal or failure without good reason of any party to participate in another ADR process rwhere an order has been made in the proceedings in relation to the same