The Mediation Act 2017 was signed into law on 2 October 2017, but it has not yet come into force.
While the Act excludes disputes that are being investigated or mediated before the Workplace Relations Commission from its scope, it will apply to other claims arising from the workplace, such as claims for personal injuries or breach of contract.
The term ‘mediation’ is defined in the Act as a confidential, facilitative and voluntary process in which the parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve that dispute.
The Act is intended to facilitate the settlement of disputes by mediation, setting out the principles applicable to mediation and specifying arrangements for mediation as an alternative to the institution or continuation of civil proceedings.
The Act provides for the recognition of a Mediation Council of Ireland, and for the introduction of codes of practice to which mediators may subscribe.
Agreement to mediate
The Act provides that, before the commencement of mediation, the parties and the proposed mediator must sign an agreement to mediate setting out certain information including the manner in which mediation is to be conducted, how the costs of mediation will be paid, and the right of the parties to seek legal advice.
Conduct of mediation
The Act requires mediators to make reasonable enquiries to determine whether or not they may have a conflict of interest, and to give details of their qualifications and experience to the parties.
Codes of practice
The Act provides that the Minister for Justice and Equality must publish a code of practice to set standards of conduct for mediations, when the relevant provisions come into force.
The Act provides that all communications, records and notes relating to a mediation will be confidential and must not be disclosed in any court proceedings.
Invitation to mediate
A court may invite the parties to the proceedings to consider mediation, whether of its own motion, or on application of a party to the proceedings. The court may, in awarding the costs of the proceedings, have regard to any unreasonable refusal or failure by a party to consider mediation following such an invitation.
If the parties decide to engage in mediation, the proceedings may be adjourned, and the court may order that timelines for compliance with the rules of the court or any order made in the proceedings be extended.
Where the parties seek to re-enter the proceedings following an invitation to mediate made by the court, the mediator is required to submit a written report to the court setting out whether or not mediation took place, and whether a settlement has been reached by the parties on any of the matters in dispute.
Any limitation period for the purpose of the Statute of Limitations is paused for a period beginning on the day on which an agreement to mediate is signed, and ending 30 days after a mediation settlement is signed, or the mediation is terminated.
Obligations of solicitors and barristers
The Act places obligations on solicitors and certain barristers, prior to issuing proceedings on behalf of a client, to advise their client to consider mediation as a means of attempting to resolve the dispute, and to provide the client with information in relation to mediation services and the benefits and advantages of mediation. When a solicitor initiates proceedings on behalf of a client, the originating document (usually a summons) must be accompanied by a statutory declaration made by the solicitor evidencing that he or she has complied with his or her obligations in that regard. This obligation does not however apply to certain family law proceedings.