Mediation Act 2017

Impact of the Mediation Act 2017 on Litigation in Ireland

Introduction

The Mediation Act 2017 (the “Mediation Act”) came into force in Ireland on 1 January 2018. This Act encourages the use of mediation by parties in order to relieve strain on the court system, achieve fairer outcomes for the parties and reduce costs involved.

Mediation is defined under the Act as a “confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute.”

Confidential Process

It is important to note that mediation is a confidential process and so what is said at mediation together with the documents produced at mediation are not admissible in court proceedings if mediation does not settle following mediation.

Section 10 of the 2017 Act governs the issue of confidentiality of communication during mediation which states:

(1.) “Subject to subsection (2) and section 17, all communications (including oral statements) and all records and notes relating to the mediation shall be confidential and shall not be disclosed in any proceedings before a court or otherwise.
(2.) Subsection (1) shall not apply to a communication or records or notes, or both, where disclosure-
(a) Is necessary in order to implement or enforce a mediation settlement,
(b) Is necessary to prevent physical or psychological injury to a party,
(c) Is required by law,
(d) Is necessary in the interests of preventing or revealing –
(i) The commission of a crime (including the attempt to commit a crime),
(ii) The concealment of a crime, or
(iii) A threat to a party,
Or
(e) Is sought or offered to prove or disprove a civil claim concerning the negligence or misconduct of the mediator occurring during the mediation or a component to a professional body concerning such negligence or misconduct.
(3.) Evidence used into or used in mediation that is otherwise admissible is subject to discovery in proceedings shall not be or become admissible or protected by privilege in such proceedings solely because it was introduced into or used in mediation.”

Main Changes introduced by the Mediation Act 2017

Section 14 of the 2017 Act imposes certain obligations on a practising solicitors prior to issuing proceedings. These obligations are as follows:

(a) To advise the client to contemplate mediation as a means of resolving the dispute.
(b) To discuss with clients the benefits of mediation such as resolving a dispute by an alternative means to the court system.
(c) To inform client that mediation is voluntary and not always an appropriate means if danger of safety to client and/or their children at risk.
(d)   To recommend to the client available mediation services.
(e) To disclose to the client that mediation is confidential.
(f) To notify the client that a statutory declaration of the practising solicitor must be filed with the document commencing the proceedings in the Court office. This statutory declaration contains confirmation by the solicitor that they have provided the above advises to their client.

Obligation on the Court to invite Mediation
(a) The Courts may invite parties to a litigation to consider mediation as a means of resolving the matter.
(b) The Courts can give information to the parties on the benefits of mediation during the course of proceedings. The court has complete discretion to do this or on request from either party of the proceedings.
(c) Courts will stop the limitation clock on proceedings once the parties and an agreed mediator sign the agreement to mediate.
(d) If the parties to proceedings agree to a mediation on the terms of an order being made, including the disposition of proceedings, the Court can make such an order which is enforceable against the parties.

Mediation Settlement
The 2017 Act defines “mediation settlement” as “an agreement in writing reached by the parties to a dispute during the course of a mediation and signed by the parties and the mediator”.

Section 11 of the Act states:

“(1) the parties shall determine –
(a) if and when a mediation settlement has been reached between them, and
(b) whether the mediation settlement is to be enforceable between them.
(2) notwithstanding subsection (1) and subject to subsection (3), a mediation settlement shall have effect as a contract between the parties to the settlement except where it is expressly stated to have no legal force until it is incorporated into a formal legal agreement or contract to be signed by the parties.
(3) without prejudice to section 8 and 8A (inserted by section 20 of the Status of Children Act 1987) of the Family Law (Maintenance of Spouses and Children) Act 1976 and subject to subsection (4), a court may, on the application of one or more parties to a mediation settlement, enforce its terms except where the court is satisfied that –
(a) the mediation settlement –
(i) does not adequately protect the rights and entitlements of the parties and their dependents (if any),
(ii) is not based on full and mutual disclosure of assets, or
(iii) is otherwise contrary to public policy,
or
(iv) a party to the mediation settlement has been overborne or unduly influenced by any other party in reaching the mediation settlement.
(4) Where a mediation settlement relates to a child, a court, in determining any application with regard to the mediation settlement, shall be bound by section 3 (amended by section 45 of the Children and Family Relationship Act 2015) of the Guardianship of Infants Act 1964.”

Future Steps
The Rules governing the various Courts are to be amended to reflect the Courts discretion on awarding costs, to take into account unreasonable refusal or failure by party to proceed with mediation. The Court Rules are outlined in the following statutory instruments:

  • S.I. No. 9 of 2018: District Court (Mediation) Rules 2018;
  • S.I. No. 11 of 2018: Circuit Court Rules (Mediation) 2018;
  • S.I. No. 12 of 2018: Circuit Court Rules (Family Law: Mediation) 2018;
  • S.I. No. 13 of 2018: Rules of the Superior Courts (Mediation) Act 2018.

The 2017 Act has made provision for the potential establishment of a Mediation Council. It is still unclear when and if such a Council will be established and what purpose such a Council will fulfill in practice.

Conclusion

The newly introduced Act has been welcomed by the Courts with Chief Justice Frank Clarke stating that the Act is an important development in improving access to justice in Ireland. However, it remains to be seen whether the Act will have the desired impact on dispute resolution by reducing legal costs and stress for parties involved together with providing earlier resolution to disputes.