The Mediation Act (the “Act”), which was signed into law on 2 October 2017, places a new statutory obligation on litigants to consider mediation as a means of resolving a dispute. Up until now there was no set commencement date however the Minister for Justice and Equality, Mr. Charlie Flanagan, has now signed the necessary Commencement Order and the Act will accordingly now come into effect as and from 1 January 2018.
This is a welcome development in so far as it may help to relieve the backlog of cases currently before the Courts and could significantly reduce time and costs involved in resolving a dispute for those who engage in the mediation process.
Prior to issuing court proceedings, the Act requires a practising solicitor to advise the client to consider mediation as a means of attempting to resolve the dispute and to provide the client with information in respect of mediation services and the advantages of engaging in mediation. In the event that Court proceedings nonetheless commence, the practising solicitor will have to swear a statutory declaration to the effect that this obligation was complied with. If, for any reason, the practising solicitor fails to comply with this obligation, the Court has the power to adjourn the proceedings for such period as it considers reasonable to facilitate the solicitor to comply with the obligation. If a party unreasonably refuses to engage in the mediation process, the Act provides the Court with the power to impose a cost sanction on that party.
If parties to a dispute do agree to engage in a mediation process, they must sign a mediation agreement to that effect. This stops the clock running temporarily under the Statute of Limitations for a specified period to facilitate their engagement in the mediation process. They then have the opportunity to resolve the dispute through negotiation in an informal setting. The role of the mediator is to assist the parties in negotiating a resolution to the dispute. In accordance with this Act, all communication, records and notes relating to the mediation are confidential and cannot be disclosed in subsequent court proceedings (with some limited exceptions).
In the event that a settlement is not reached, the parties to the dispute are at liberty to have the matter re-entered before the Court. Under the Act, the mediator is obliged to provide a report which details the outcome of the mediation process but not details of the mediation itself – which contrasts with the UK where far more detailed information is reported back to the Court.
Mediation will not be appropriate for the resolution of all disputes, however, the new onus on parties to consider mediation from 1 January 2018 onwards has the potential nonetheless to have a significant impact on dispute resolution in Ireland.