The long awaited Mediation Bill 2017 (Mediation Bill) was recently published by the Department of Justice and Equality.
It has the general objective to promote mediation as a viable, effective and efficient alternative to court proceedings.
What is mediation?
Mediation is a voluntary process in which the parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable resolution. Mediation has significant advantages which include:
The parties maintain complete control over the outcome and a resolution is only reached if both parties are willing to accept it
- It assists the parties in preserving relationships due to its non-adversarial nature
- It results in a significant saving on cost and can dramatically speed up the resolution of a dispute
What does the Mediation Bill 2017 propose?
The Mediation Bill proposes that parties involved in litigation will confirm to the court that mediation has been considered. Solicitors will be obliged to advise clients to consider mediation and to provide information on mediation. If the client choses to issue proceedings, those proceedings must be accompanied by a solicitor’s declaration, confirming that the client was advised to consider mediation.
The Mediation Bill also allows the court to invite the parties to a dispute to enter into mediation and court proceedings may be suspended to facilitate this. Where parties agree to enter into mediation and subsequently one of them re-enters proceedings in court, the mediator will be required to produce a report setting out whether or not the mediation took place and if not, the reasons why.
Changes for parties entering into mediation
While many parties in the past have attempted to resolve their differences by way of mediation, the Mediation Bill proposes a significant departure from the existing procedure. The new procedure provides that if mediation occurs but settlement is not reached, the mediator’s report will include an opinion from the mediator on whether the parties engaged fully in the mediation process. The court may take failure to participate in mediation into account when awarding costs.
The publication of the Mediation Bill is to be welcomed. When it is enacted, it is likely to assist parties in resolving their disputes by engaging in effective discussions and reaching a negotiated settlement amicably. The imposition of a statutory obligation on solicitors to advise clients of mediation is likely to result in increased mediation by parties involved in disputes.