“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often the real loser – the fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough”
The above citation is an extract from the former president of the United States, Abraham Lincoln’s Notes on Practical Law which was published in the early nineteenth century. Now, with the introduction of the Meditation Bill 2017 (“the Bill”), his words and the promotion of alternative dispute resolution are more pertinent than ever. The Irish courts have long been supporters of the process of mediation. The Rules of the Superior Courts permit judges to adjourn proceedings in order to facilitate mediation and although the process is voluntary and both parties must agree to meditate, cost sanctions are in place for those who unreasonably refuse to accept this alternative route to resolution.
The long- awaited Mediation Bill was published on the 13 February and is currently under review by the Select Committee in Dáil Éireann. The Bill will allow for the establishment of an Act that will facilitate the settlement of civil disputes by mediation and specify the principles applicable to the mediation process.
The proposed legislation is set to place promotion of mediation as an attractive alternative to court proceedings on statutory footing.
Role of Legal Representatives
Section 14 of the Bill imposes a legal obligation on solicitors and barristers to advise their clients to consider mediation as a means of dispute resolution.
The Bill also proposes the following procedural changes:
“Agreement to Mediate”
As per section 7 of the Bill, before the commencement of mediation the parties and the mediator must sign an “agreement to mediate”. The agreement must set out:
- the manner in which the mediation is to be conducted;
- the manner in which the fees and costs of the mediation will be paid;
- the place and time at which the mediation is to be conducted;
- the fact that the mediation is to be conducted in a confidential manner;
- the right of each of the parties to seek legal advice;
- subject to section 6(6) of the Bill, the manner in which the mediation may be terminated.
Section 16 of the Bill allows for further judicial discretion in awarding costs penalties with regards to the conduct of the litigants when it comes to considering mediation. This will provide clients, who may not have previously had the financial resources to pursue a claim, access to mediation as a means of resolution. This alternative route will also assist them in avoiding the costly and lengthy process of litigation.
Mediation and the Statue of Limitations
Section 18 of the Bill provides that from the date of signing the agreement to mediate, time will effectively stop for bringing claims under the Statute of Limitations until 30 days after either a mediation settlement is signed (by the parties and the mediator) or the mediation is terminated, whichever first occurs.
Role of the Mediator and Mediation Council of Ireland
As per Section 8 of the Bill, the mediator will be obliged to give a copy of any code of practice to which he or she adheres to the parties so that they are informed of the standards to which their mediator has committed.
The Bill also provides for the possible establishment of an independent Mediation Council of Ireland, which will be required to make reports to the Minister for Justice and Equality in relation to mediation in the State.
The proposed legislation should result in a material reduction in both costs and resources in a wide variety of disputes. It should be noted however, that not all disputes are amenable to mediation; claims that seek to vindicate constitutional rights may need to be determined by a judge.
It is important that legal representatives are aware of their role in the process of mediation and the responsibilities that will arise under the proposed legislation. Failing to acknowledge these obligations will result in the proceedings being adjourned until the legal representative illustrates their compliance.