On 2 October 2017 the Mediation Bill 2017 was signed into law by the President and the Act came into full effect on 1 January 2018. The arrival of the Mediation Act 2017 is much welcomed and should help promote the benefits of mediation and increase its use in civil litigation proceedings.
Obligation on Practising Solicitors
The purpose of the Act was to put on a statutory footing an obligation on legal advisors to advise their clients of mediation prior to commencing civil proceedings.
Section 14 of the Act puts an obligation on practising Solicitors to:
- Advise the client to consider mediation as a means for attempting to resolve the dispute the subject matter of the proposed proceedings;
- Provide the client with information in respect of mediation services, including names and addresses of persons who provide mediation services;
- Provide the client with information about – (i) The advantages of resolving a dispute otherwise than by way of the proposed proceedings, and (ii) The benefits of mediation.
When proceedings are issued the practising solicitor must accompany with the proceedings a statutory declaration evidencing that the solicitor has performed the obligations imposed on him/her by the Act. The Act does stress that mediation is voluntary and that any party can withdraw from mediation at any time. Furthermore, Section 10 of the Act confirms that all records and notes relating to mediation shall be confidential and should not be disclosed in any proceedings before Court or otherwise.
It is important to note that the definition of ‘practising solicitor’ in the Act is broad and does include in-house solicitors.
Court Inviting Parties to Mediation
The Act also makes provision for a Court, on the application from a party involved in proceedings or on its own Motion to invite parties to consider mediation as a means of attempting to resolve the dispute. If such mediation is invited by the Court and does not take place the mediator is to report to Court setting out why the mediation did not take place.
The Act specifically states that participation in mediation is voluntary at all times and a party may withdraw from mediation at any time. However, in an effort to ensure the promotion of mediation, the Rules of the Superior Courts are due to be amended to reflect the Courts discretion, when awarding costs, to take into account any unreasonable refusal or failure by a party to proceed by way of mediation.
There are multiple benefits of mediation for all parties involved. It helps keep costs down for all and unlike a Court hearing it allows parties control the outcome. Furthermore, even if the mediation is not successful it will help narrow the issues between the parties.
The arrival of the Mediation Act 2017 is most welcome. However, it must be ensured that the obligations therein do not become meaningless procedural steps but rather positive strides in the continued promotion of mediation for clients and practising legal professionals.