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Litigation Update – Mediation Act 2017

New Mediation Act 2017

By Karl O’Connor, Solicitor
9th November 2017

The Mediation Act (the “Act”) was signed into law on 2 October 2017. It promotes the resolution of disputes between parties through mediation as an alternative to Court proceedings. The main objective of the Act is to promote mediation as an effective and efficient way of resolving disputes, with the view to reducing legal costs, speedy resolution of disputes, thereby reducing acrimony and stresses associated with Court proceedings.

Main Provisions of the Act

Prior to issuing Court Proceedings, there is a statutory obligation on Solicitors and Barristers to advise the client to consider mediation as a means of resolving the dispute and must provide the client with information on mediation services and the advantages of engaging in mediation. The practising solicitor must swear a Statutory Declaration confirming he/she has complied with this obligation. Where the practising solicitor does not comply with this obligation, the Court can adjourn the proceedings to enable the solicitor to comply with the obligation.

The Act Provides the Court can of it’s own accord or on the initiative of the parties to the proceedings recommend the parties consider mediation as a means to resolving the dispute

The Act sets out general principals of conduct of mediation by qualified Mediators. It also provides for the introduction of a Code of Conduct of Mediation for qualified Mediators and also provides for the possible future establishment of a Mediation Council to oversee the development of the sector.

The Act provides, all communication between the parties during the mediation process shall be confidential.

Where a party unreasonably refuses to engage in the Mediation Process, the Court may award costs against that party, which could include the other parties costs.

The Mediation Process

Where parties agree to engage in the mediation process, they sign a Mediation Agreement to that effect, which then stops the clock running under the Statute of Limitations for a specified period, to allow parties time to engage in the mediation process in the hope of to resolving the dispute. Mediation allows for negotiations to take place in an informal setting. The mediator assists the parties to reach a resolution to the dispute. The mediator may make proposals in an effort to reach agreement, at the parties request, but the decision to accept these proposals is left the parties themselves. 

Mediator’s Report

Where a settlement is not reached through the Mediation Process, the parties to the dispute can have the matter re-entered before the court. The Mediator must, under the Act, furnish a report with the outcome of the engagement in the Mediation process. The report will not however contain details of the negotiations between the parties during the process.

Conclusion

Mediation is a collaborative process that can be very beneficial in resolving disputes. Not only does it allow parties retain control of the manner in which they resolve a dispute, but it can significantly reduce the costs and time involved in reaching an agreement of the dispute. The mediation process will not be appropriate for the resolution of all disputes, however the Act now places the onus on parties to consider mediation as an alternative to resolving their disputes rather than proceeding with same through the Courts.

For more information on the Act and the Mediation process please contact:
MELLOTTE O’CARROLL SOLICITORS, MOUNTBELLEW (090)9679377 Or ATHLONE (090)6492692 or via Email – info@mocsolicitors.ie

Mairin Stronge, Partner in our Athlone Office is an Accredited Mediator.