The Mediation Bill 2017

 Mediation Bill 2017. 

Mediation

Mediation is an Alternative Dispute Resolution (“ADR”) mechanism  already well established in Ireland. It is a valuable tool in resolving disputes. It is cost effective and a speedy mechanism in bringing about a resolution. It allows our clients a direct role with first hand involvement in formulating a resolution agreement, rather than having the terms of resolution imposed by a Third Party, such as a Judge or Arbitrator. Mediated solutions are more likely to stick.

Mediation however is not for everyone. It requires a leap of faith and a deep level of commitment on the part of the client for it to work.

 

Mediation Bill 2017

The Mediation Bill 2017  http://www.oireachtas.ie/viewd contains long awaited proposals for a statutory framework to promote the resolution of disputes through Mediation as a genuine alternative to the institution of Court Proceedings, or as an option where Court Proceedings have already commenced.

It proposes the establishment of the Mediation Council of Ireland. The Council will be required to report to the Minister for Justice and Equality on the adoption of and operation of Mediation as an ADR Mechanism.

Certain types of legal action or proceedings are excluded from Mediation under the terms of this Bill. For example:

  • proceedings under the Arbitration Act;
  • disputes arising within an employment context where referred to Statutory Disputes-Resolution Processes such as the WorkPlace Relations Commission;
  • matters under Tax and Customs Legislation;
  • proceedings under the Child Care Acts or the Domestic Violence Acts.
  • Judicial Review Proceedings and proceedings against the State in respect of alleged infringements of fundamental rights and freedoms are also excluded.

    How will it affect Legal Actions? 

If the Bill is enacted in its current guise or form, it will allow the following:

  •  A Court may, either on foot of Application by either party to a legal action or proceedings, or of its own volition where it considers it appropriate to do so invite the parties to the legal action or proceedings to consider Mediation as a means of seeking a resolution of the dispute before the Court. If the parties decide to engage in Mediation the Proceedings may be adjourned to facilitate same;
  •  Solicitors will be required to advise clients to consider Mediation as an alternative to Court Proceedings, before Court Proceedings are commenced. We must provide clients with information on Mediation Services, including details of Mediators, and information about the advantages and benefits of Mediation. An Application to institute Court Proceedings will have to be accompanied by a Statutory Declaration  by a Solicitor, confirming that the Client has been so advised in the context  of the proceedings in question. The Court will adjourn  proceedings until the Solicitor proves compliance with these requirements. This simply reflects similar legislative requirements already in place in family law disputes since 1989;
  •  For the purpose of the Statute of Limitations, the period of time during which Mediation has taken place will be disregarded for the purpose of a Limitation Period. Neither party will therefore be prejudiced with respect to time limits by engaging in Mediation. A Court may, where it considers it just to do so, take into account any unreasonable refusal or failure by a party to consider using Mediation or to attend Mediation, when awarding costs in such proceedings. This cannot be ignored, if the Courts do implement this fully, it could have serious consequences for any party unreasonably refusing to engage in Mediation;
  •  In any action for personal injuries, the Court will have the power of its own volition, to direct the parties to meet to discuss and attempt to settle the action by means of Mediation;

Why is this a good thing?

 The publication of this Bill has been long awaited. The Mediator’s Institute of Ireland (M.I.I.) welcomed the publication of the Bill but has already identified challenges in implementing same, particularly those that could impact on the ability of the Mediator to operate as effectively as possible.

When enacted into law Mediation will be more available and deliver better resolutions, at a lower cost, to those involved in disputes. The M.I.I. amongst other bodies, such as the Law Society, will work closely with the Government and opposition parties in order to fine tune the Bill in order to ensure its effectiveness and expedite its passage through both Houses of the Oireachtas.

Mediation is already a reality. It needs a Statutory Framework to enable it deliver its full potential benefit in  dispute resolution. Some will still want, even demand their day in Court. They cannot be denied that right, but they will know that it may turn out to be at their own considerable cost where ADR, particularly Mediation could have delivered a faster cheaper and more personal solution.

Declan O’Toole has been an accredited Mediator and Member of the M.I.I. since 2010.

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