The Mediation Act 2017

Details

Created: Sunday, November 12 2017 16:22

The Mediation Act 2017 (“the Act”) was enacted on 2 October 2017, and its commencement is expected very soon.

The Act aims to facilitate the settlement of disputes by mediation as an alternative to the institution of civil proceedings and to specify the principles applicable to mediation.

The Act applies to all types of civil proceedings and excludes the following;

• Arbitrations;
• Disputes that fall under the functions of the Workplace Relations Commission, including where the Director General appoints a mediation officer or mediation officers;
• Certain tax and customs disputes;
• Proceedings in the High Court by way of judicial review or of seeking leave to apply for judicial review;
• Proceedings against the State in respect of alleged infringements of the fundamental rights and freedoms of a person; or
• Proceedings under the Domestic Violence and Child Care Acts.

The Act imposes certain obligations on solicitors acting for clients in respect of legal proceedings. A solicitor shall, prior to issuing proceedings on behalf of a client;

1. Advise the client to consider mediation as a means of attempting to resolve the dispute;
2. Provide the client with information in respect of mediation services, including the names and addresses of persons who provide mediation services;
3. Provide the client with information about the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and the benefits of mediation;
4. Advise the client that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk; and
5. Inform the client of the matters in relation to enforceability and confidentiality of the mediation process.

To ensure compliance with that obligation, the originating document by which proceedings are instituted shall be accompanied by a statutory declaration made by the solicitor evidencing performance of the obligations imposed under the Act.

These obligations do not apply to certain proceedings in relation to guardianship of children, judicial separation or divorce.

In addition to the obligations on solicitors, a court may, on application of a party to proceedings, or of its own motion, invite the parties to consider mediation and/or provide the parties with information about the benefits of mediation. Where, following such an invitation by the court, the parties decide to engage in mediation, the court may;

• Adjourn the proceedings;
• Make an order extending the time for compliance by a party; or
• Make such other order or direction to facilitate the mediation.

All told, the Act enshrines mediation as a viable form of alternative dispute resolution and will likely lead to mediation being used more frequently in dispute resolution.