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The Mediation Bill 2017 obliges parties to a dispute to seriously consider mediation as a route to resolution, writes leading law firm William Fry.

Published on 13 February 2017, the Bill seeks to formalise what is already a popular non-adversarial method for resolving many different types of disputes.  For the first time, solicitors (including in-house solicitors providing legal services) and barristers will have a statutory obligation to advise clients to consider using mediation as a means of resolving their dispute. The obligation includes advising:

  • the client generally to consider mediation as a means of resolving the dispute;
  • on mediation services, including details of qualified mediators;
  • on the advantages and benefits of mediation;
  • on the confidentiality of the process; and
  • the enforceability of mediation settlements.

If a client decides not to mediate, the solicitor must swear a statutory declaration that they advised their client to consider mediation.  Where such declaration is not filed, the Court will adjourn any proceedings issued until such times as it is provided.  In an effort to alleviate the pressure on the already over-exerted Courts' system, the Bill imposes costs sanctions on parties for unreasonably failing to engage in mediation.

It is important to note that mediation is an option at any stage of the proceedings. Equally, parties may withdraw from mediation at any time.  Any agreement is voluntary and both its terms and the extent to which it may be binding is up to the parties.  The fees and costs of the mediation shall not be contingent on its outcome (unlike the Court process).  Mediation also has the advantage of being an entirely confidential process.

If mediation is the preferred process, the parties and the proposed mediator shall prepare and sign an "agreement to mediate" which appoints the mediator and sets out the agreed framework for the mediation.  This is a new obligation and should facilitate the reaching of an agreement between the parties on certain matters (fees and costs, location and time of mediation, right to terminate mediation etc.).  From the date of signing the agreement to mediate, the time will effectively stop for bringing claims under the Statute of Limitations until 30 days after either a mediation settlement is signed by the parties and the mediator or the mediation is terminated, whichever first occurs, shall be disregarded.
While the Mediation Bill imposes an obligation on parties to seriously consider mediation, not all disputes are amenable to mediation and so long as refusal to mediate is not unreasonable, the Court process will remain the main forum for resolving disputes.

The Mediators' Institute of Ireland (MII) has welcomed the Publication of the Mediation Bill but has identified Challenges in its Implementation.

Some proposals in the Bill could impinge on the ability of the mediator to operate as effectively as possible. “We welcome today’s publication of the Mediation Bill* and we are generally happy with it,” stated President of the MII Sabine Walsh,

“However, we do see challenges with a number of proposals in the Bill, particularly those that could impact on the ability of the mediator to operate as effectively as possible.”

“The MII has long campaigned for this Bill, which will make mediation more available and deliver better resolutions, at a lower cost, to those who are involved in disputes,” said Ms. Walsh. “This is a good news day as enactment of the Bill has the potential to divert many civil and commercial disputes from our courts and deliver major savings to individuals and the public purse. ** The MII now looks forward to working with the government and opposition parties to fine tune the Bill, ensure its effectiveness and expedite its passage through both houses of the Oireachtas.”

March/April Issue irish Construction Industry Magazine