Solicitors, including in-house solicitors, in Ireland face new obligations to advise their clients to consider mediation as a form of dispute resolution and to make a statutory declaration confirming they have done so. These new obligations are set out in the Mediation Act 2017, which was signed into law on 2 October 2017. The provisions of the Act have not yet been brought into operation by ministerial order.
What are the new obligations on solicitors?
Once the provisions of the Act are commenced by ministerial order, before issuing court proceedings on behalf of a client, solicitors will have to:
• advise the client to consider mediation as a form of dispute resolution;
• provide the client with information regarding mediation, including the names and addresses of the people who provide mediation services;
• inform the client of the advantages of alternative dispute resolution and of the benefits of mediation;
• inform the client that mediation is voluntary and, if relevant, that it may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk;
• inform the client that they (the solicitor), will need to make a statutory declaration confirming that they have complied with their obligations. The statutory declaration will be required before any legal proceedings can be commenced and it must be lodged in the relevant court office with the originating document used to commence legal proceedings (i.e., a summons or notice of motion); and
• inform the client that if the statutory declaration is not provided, the court will adjourn the legal proceedings.
What happens if the client decides not to engage in mediation?
The Act recognises that mediation must be a voluntary process and that not all disputes are amenable to mediation. The client does not have to go to mediation and can proceed directly to court if they so wish. However the solicitor, must provide a statutory declaration to the court confirming that they have advised the client to consider mediation. If the statutory declaration is not provided, the court must adjourn the legal proceedings until it is provided.
It may also be prudent for solicitors to advise the client that, if it considers it appropriate, the court can invite the parties to consider mediation. If the client unreasonably refuses to do so, the court can take this into account when awarding the costs of the legal proceedings.
What about the limitation period for issuing legal proceedings?
When the parties sign the agreement to mediate (necessary to commence the mediation), time stops running for the purposes of the limitation period within which legal proceedings must be initiated. Importantly, time will begin to run again 30 days after the termination of the mediation if it proves unsuccessful.
Can notes of the mediation be disclosed in subsequent legal proceedings?
No, all communications, notes and records of the mediation are confidential and cannot be disclosed in any subsequent proceedings before a court, except in a limited number of circumstances.
The new provisions in the Act requiring parties to consider mediation should be helpful in removing what may be seen an obstacle to mediation or negotiation in practice. There can be occasions where parties do not want to propose mediation or negotiation as it may be misinterpreted as a sign of weakness. This new statutory obligation on solicitors, including importantly inhouse solicitors, to inform clients of the mediation process and the requirement to consider it before issuing proceedings may make parties less concerned about this possibility and should offer a feasible and costefficient alternative to court proceedings.