Defamation (Amendment) Bill and Mediation

By Dr Roisin O’Shea BL

On the 28th of March the Minister for Justice Simon Harris published draft legislation to reform Ireland’s existing defamation laws. Proposals set out in a Review of the Defamation Act 2009, published last year, recommended an end to juries in defamation cases; easier access to justice for individuals whose reputation is unfairly attacked; reducing legal costs and delays; raising the awareness of mediation and encouraging mediation, including providing a statutory obligation for parties to a defamation dispute to consider mediation. The Report of the Review noted that the Mediation Act 2017 provides a comprehensive statutory framework, promoting the resolution of disputes through mediation, stating that mediation is,

“…a viable, effective and efficient alternative to court proceedings, thereby reducing legal costs, speeding up the resolution of disputes and reducing the stress and acrimony which often accompanies court proceedings”.

The Report recommended that not only should there be an obligation on the parties to a dispute to consider mediation, but that the court could include participation by a party in alternative dispute resolution as factor when assessing the redress to be awarded in defamation proceedings.

Head 7 of the Draft General Scheme, Defamation (Amendment) Bill, sets out the obligations on solicitors before they issue proceedings on behalf of their client, which includes advising the client about alternatives to legal proceedings, section 3 referencing the statutory declaration a practising solicitor is required to make under section 14 of the Mediation Act 2017.

Head 8 of the draft General Scheme provides that the parties to a defamation dispute must consider mediation as a way of reaching a mutually acceptable agreement to resolve the dispute. The explanatory note states that the intention of this section is to give effect to the recommendation in the Report of the Review that an obligation should be imposed on the parties to such a dispute to consider mediation.

Interestingly in Head 22 there is an echo of section 21 of the Mediation Act 2017, which sets out the factors to be considered by the court in awarding costs:

 “…a court may, where it considers it just, have regard to any unreasonable refusal or failure by a party to the proceedings to consider using or, as the case may be, attending alternative dispute resolution procedures: in particular mediation…”

This Head enables a court to take into account, when determining liability for costs, a party’s participation, or refusal to participate, in alternative dispute resolution mechanisms with an emphasis on mediation.

The draft General Scheme, Defamation (Amendment) Bill, is further evidence that mediation is at the centre of Government policy in terms of dispute resolution, post the commencement of the Mediation Act 2017 – an Act which applies to almost all civil disputes and is intended to facilitate the settlement of disputes by mediation as a real alternative to initiating civil proceedings or continuing with civil proceedings.

Mediation is slowly but surely making its way into the mainstream, not just as an alternative but is gaining ground as a preferred dispute resolution forum!