By Dr Róisín O’ Shea & Dr Sinead Conneely
On January 1st 2018, the Mediation Act became law, and we finally have the much-needed foundation for the development of mediation in Ireland.
Although Mediation has been successfully used to resolve disputes for decades in Ireland, the statutory promotion and regulation of the profession of mediation in Ireland has, up until now, been absent. According to the CEDR Ireland/Irish Commercial Mediation Association (ICMA) Audit 2013, mediations have increased by 739% between 2003 and 2012 and 73% of all mediations surveyed reached agreement.
With mediation clearly gaining ground in recent years as a dispute resolution alternative to court proceedings, the publishing of the draft Mediation bill in early 2012 by then Minister for Justice Alan Shatter, was an exciting moment for those of us involved in the field of mediation. However, it has taken almost 6 more years for that legislation to get over the line.
The Mediation Act applies to all mediated disputes, including commercial civil disputes and family law disputes. The greatest area of uptake of mediation to date, nationally, is in relation to family disputes. Family Mediation has historically been offered through the state-run Family Mediation Service (FMS), research projects, community offerings and private mediators. Based on international research, family conflict derives the most benefit from mediation intervention at an early stage, with binding agreements which can be enforced.
What is mediation?
The new Act defines mediation 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”. It is voluntary, confidential, and is a process facilitated by a mediator or mediators, who assist parties to arrive at their own decisions. Any resolution reached will be set out in a written agreement, which the Act refers to as a “mediation settlement”, and that agreement is signed by the parties and the mediator or mediators.
So what will this new piece of law mean for you?
For the first time, there is now a statutory obligation to consider mediation before making a court application for any civil dispute, whether it be a probate dispute, a breach of contract or a family law matter, and anyone who wishes to litigate a dispute must confirm to the courts that they have considered mediation. The Act applies to all litigation disputes apart from arbitration, certain disputes under tax and customs legislation, and proceedings under the Domestic Violence Acts or Child Care Acts. Your solicitor, before issuing proceedings, must now advise you about the advantages and benefits of mediation, and provide information on mediation to include the contact details of persons who provide mediation services. If you decide you don’t want to try mediation, then your solicitor must complete a statutory declaration to say that they have fulfilled their duty to make you aware of the benefits of mediation and have provided the relevant information to you. When your case comes before the judge, he or she, or on the application of the other party, may invite you to once again consider mediation. If you refuse to consider or attend mediation, a judge may now award costs against you, if he or she feels that your refusal is unreasonable.
What is the role of the Mediator?
The Act says that before mediation commences a mediator must provide you and any other party with an “agreement to mediate” which should set out the structure, timetable, and process, their terms and conditions to include what the charges will be and how fees will be paid, the confidential nature of the process, the right to seek legal advice, and the manner in which mediation may be terminated. The mediator must make reasonable enquiries to check that he or she does not have a conflict of interest, and provide you with relevant details such as their qualifications, their training and experience, any ongoing continuing professional development training, and a copy of any code of practice that may be approved by the Minister.
The Act requires the mediator to act impartially and in a fair manner, completing the mediation as expeditiously as possible in the circumstances. The outcome of mediation must be determined by the parties, although the mediator may make proposals for resolution of the dispute when requested to do so by the parties, and the parties can decide whether to accept such proposals.
What does the Act say about Confidentiality?
The Act supports the confidentiality of the mediation process. All communications, including any oral statements, and any notes and records relating to mediation are confidential and may not be disclosed. Clarity is also provided in terms of when confidentiality would not apply, which includes where it is necessary for the performance or enforcement of a mediation settlement; where material introduced into mediation is normally admissible or subject to discovery in legal proceedings; where it is necessary to prevent physical or psychological injury to a party; where disclosure may be required by law, or required to prevent or reveal a criminal matter, or where it is necessary to prove or disprove a claim of misconduct or negligence against a mediator.
Are Mediated Agreements Enforceable?
There has been much debate in the last few years about the enforceability of signed mediated agreements, although any such agreement that was intended to be legally-binding could of course be enforced as a contract. The Act provides clarity on enforceability, and says that the parties to a mediation can decide if a mediated settlement (agreement) is intended to be legally binding, and if they do intend the agreement to have legal force, it is enforceable as a contract. Any such agreement must be based on full and mutual disclosure of assets, and it must not be contrary to public policy. Before any settlement agreement is signed the mediator must ensure that the parties are aware of their rights to each obtain independent advice, to include legal advice. Other advices may be required on matters such as taxation, the valuation of assets etc. The Act also provides that you can have a mediation settlement (agreement) that is not intended to be legally binding. So long as this is stated in the agreement, then it will have no legal force, until some later date, when the terms of that agreement are incorporated into another agreement that is intended to be legally binding.
When can I engage in Mediation?
You can engage in mediation at any time, even when proceedings have been issued, up until the point that the Court makes a final determination. As it is a voluntary process, all parties must agree to participate. If you are invited by the judge to try mediation, and all parties agree, then your case can be adjourned to allow time for mediation to take place.
What is a Mediator Report?
Where your case is adjourned, following an invitation by the judge to attend mediation, but the case comes back to court, the mediator must prepare a “written report” for the judge. This report must indicate why mediation did not take place, or where mediation did commence, the mediator must indicate if a mediation settlement was reached, and whether that agreement dealt with some or all of the issues. The mediator must provide a copy of this report to the parties at least 7 days before it is submitted to the court.
What are the obligations of solicitors?
During the process of mediation a client may seek legal advice from their solicitor at any time, and in some cases the solicitor may be asked to attend mediation with their client. Should the client wish for proceedings to be initiated, the solicitor must complete a statutory declaration, evidencing that the solicitor has performed his or her obligations under this section to provide information on the benefits and advantages of mediation, rather than litigating.
What is the Mediation Council?
An exciting new edition to the Mediation Act is the establishment of the Mediation Council of Ireland. The Council will be comprised of at least 11 members, and of those, 5 members shall be representative of bodies promoting mediation services or representing the interests of mediators, and the remaining 6 members shall represent the public interest and be persons who are independent of the interests of mediators. The Council will promote awareness of mediation and will oversee the development of standards in the profession, and will maintain a register of all mediators practicing in the State.
This area has been in need of legislation for years, and has been put back time and again due to more urgent legislative initiatives. The Act is likely to increase the number of mediations and there will be teething problems along the way, not least of which will be the coming together of the diverse range of bodies involved in mediation in Ireland, to enable the adoption of a Code of Practice, and the establishment of the self-financing Mediation Council and a national register of mediators. However, this Act is finally the much-needed fertile ground in which the profession of mediation can thrive and, in turn, effectively serve the needs of people in Ireland who find themselves in conflict.
[Dr O’Shea is an award-winning former Irish Research Council scholar and mediator, who was awarded a Ph.D. in 2014 for her doctoral research on Judicial Separation and Divorce in the Circuit Court, Ireland, which included an international analysis of the delivery of family mediation. She is a Partner in Arc Mediation, and the Principal investigator for Waterford Institute of Technology’s Family Mediation Project which is trialling a family mediation process she developed, informed by global innovations. Dr O’ Shea and project Co-ordinator Dr Sinead Conneely were invited by the Department of Justice as “relevant stakeholders” to make submissions on the draft Mediation Act 2017. The Family Mediation Project will be launched in Dublin in early 2018.]