The Minister for Justice, Equality and Defence, Mr Alan Shatter, T.D. has published the general scheme of a Mediation Bill. It builds on the recommendations of the Law Reform Commission (LRC) in their Report on Alternative Dispute Resolution: Mediation and Conciliation, and the draft Mediation and Conciliation Bill appended to it, published in 2010. (A previous article on the 2010 LRC Report is available here). However, the proposed Bill does not deal with conciliation. The 2010 LRC Report arose partly from the need to consider how the EU Mediation Directive 2008/52/EC should be implemented in Ireland. The EU Mediation Directive was subsequently transposed by means of a Statutory Instrument in May 2011 (EC (Mediation) Regulations 2011, S.I. 209/2011). (Please click here to see a previous article on these Regulations). The aim of the proposed Bill is to allow for mediation as a viable and effective alternative to litigation for those involved in civil disputes. The key provisions of the draft Bill include:
- Scope - The Bill does not apply to an arbitration under the Arbitration Act 2010; or an employment-related dispute referred to a statutory dispute resolution process such as those provided by the Employment Appeals Tribunal or the Labour Relations Commission; or any dispute relating to the payment of any tax or customs charge.
- Duty of solicitors and barristers to provide information on mediation - Solicitors and barristers have a statutory obligation to inform parties to disputes, prior to commencing court proceedings, about the possibility of using mediation as a means of resolving them, and insofar as possible, an estimate of the legal costs in the event of court proceedings; and an estimate of the likely duration of court proceedings.
Where court proceedings are launched, parties are required to confirm to the court that they have been informed of, and considered using, mediation as a means of resolving the dispute, and of the potential costs and duration of court proceedings.
- Duty on mediator to provide information on training - Prior to commencement of the mediation process, mediators are obliged to provide information on their training and experience to the parties to the mediation. If parties are not satisfied with the level of experience and training they may seek another mediator.
- Code of practice - The Minister may prepare, or approve, and publish a code of practice for the conduct of mediation by qualified mediators.
- Confidentiality of mediation - All communications between parties during mediation shall be confidential.
- Enforceability of mediation agreement - The parties to the mediation will determine among themselves the enforceability of any agreement reached during the mediation process.
- Inviting parties to consider mediation – A court may invite the parties to consider using mediation to settle the dispute, or direct the parties to attend an information session, and adjourn court proceedings for the duration of the process.
- Mediator report to court - Where the parties engage in a mediation process, the mediator shall submit a report on the outcome of the process to the court, without comment or recommendation.
- Fees and costs - The fees and costs of mediation must be reasonable and proportionate and not linked to the outcome of the process.
- Factors to be considered in awarding costs - In awarding costs of proceedings, a court may have regard to any unreasonable refusal of a party to consider using mediation, or any unjustified refusal of a party to attend an information session.
- Liability of mediator - A mediator shall not be liable for civil damages.
The draft Bill will now be forwarded to the Joint Oireachtas Committee for Justice, Defence and Equality for discussion and review. The Minister has requested the Committee to revert to him by 1 June 2012.