The long awaited Mediation Bill has finally been published by the Minister for Justice and Equality.
The stated objective of the Bill is “to promote the use of mediation as a viable, effective and efficient alternative to court proceedings, thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress of court proceedings”.
The Bill contains a number of important provisions which are likely to see a significant increase in the use of mediation to resolve disputes that might otherwise go to court.
These provisions will apply to all civil proceedings but will not apply to arbitrations, employment disputes, taxation & Revenue matters, judicial review and other specified types of litigation.
The Bill imposes obligations on legal advisors (both solicitors and barristers) to advise clients about the benefit of mediation prior to commencing legal proceedings. It is hoped that placing this obligation on a statutory footing will ensure that parties involved in litigation have formally been advised of alternatives to court proceedings at the outset.
This obligation includes a requirement to provide the names and addresses of mediation service providers to their clients and also requires the legal advisors to swear a Statutory Declaration confirming that the requirement has been complied with prior to the issue of court proceedings.
The Bill will allow courts to place a stay on proceedings in the event that parties wish to attempt mediation. The court can impose a stay on the application of either party or of its own volition.
The courts will also be empowered to impose costs sanctions on parties who unreasonably refuse to engage in mediation.
The Bill provides for regulation of mediators and, whilst it was initially considered that the new Legal Services Regulatory Authority might have a role in that regard, the Bill seems to favour the setting up of a Mediation Council which will operate akin to the Press Council.
The Bill also provides for publication of codes of practice relating to mediation in due course.
The Revenue Commissioners have expressed concerns about the scope of the new Bill and the potential that it may delay payment of taxes and frustrate their enforcement efforts.
The publication of the Bill must be seen in the context of the increasing complexity of litigation and consequent strain on court resources. Indeed, the courts have been vocal in their promotion of mediation as an alternative form of resolving disputes. This Bill is part of a suite of recent changes to court procedures designed to improve efficiency and reduce costs.
The Bill was presented to the Dáil on 09 February and a date for the second stage has yet to be set. While it is considered a priority item by the current administration, it remains to be seen whether the Bill will be enacted during the lifetime of the current Dáil.