The Mediation Act 2017 commenced on 1 January 2018, with District and Circuit Court rules in relation to this coming into operation on 22 January 2018. The Act applies to all civil proceedings with the exception of arbitration, disputes being investigated by the WRC, certain tax disputes, judicial reviews and family law matters (which require their own Solicitors Certificates regarding mediation and alternative dispute resolution).
In a nutshell, Section 14 of the Act obliges practising solicitors to:
- Advise clients to consider mediation as a means of resolving any dispute
- Provide clients with information in respect of mediation services, including names and addresses of persons who provide mediation services
- Provide clients with information about the advantages of avoiding court proceedings and the benefits of mediation
Clients should also be advised that mediation is voluntary and confidential and that any party can withdraw from mediation at any time. All records and notes relating to mediation are confidential and may not be disclosed in any subsequent proceedings, unless otherwise agreed.
The Court may invite parties to consider mediation, either on an application from a party involved in proceedings or on its own initiative, and, while mediation is voluntary at all times and a party may withdraw from mediation at any time, in an effort to ensure the promotion of mediation, the Court will have the discretion, when awarding costs, to take into account any unreasonable refusal or failure by a party to proceed by way of mediation.
Proceedings must be accompanied with a statutory declaration evidencing that the solicitor has performed the obligations imposed on him/her by the Act. If proceedings are issued without this Statutory Declaration, the Court may adjourn the matter until mediation is considered and the Statutory Declaration is filed.
In respect of High Court actions, the Rules of the Superior Courts provide that every statutory declaration required by section 14(2) of the 2017 Act shall be filed in the Central Office and a copy served on the defendant.