Since it came into effect, the Mediation Act 2017, has, in some ways, introduced a mediation ‘requirement’ in litigation. The Act applies to all civil proceedings. However, there are limited exceptions such as proceedings under the Domestic Violence or Child Care Acts.
The Act does not ‘require’ parties to enter mediation. In fact, the Act explicitly states that participation shall be ‘voluntary at all times’.
In essence the mediation requirement imposed by the Act is a requirement to ‘consider’ mediation. Under s.16 the Court is permitted to invite parties to consider mediation. The effect of an ‘unreasonable refusal’ to consider or attend mediation when invited to by the court may be a factor the court will consider when awarding costs.
In this way the Act seeks to strongly encourage mediation. It does this while also refraining as much as possible from undermining the ‘voluntary’ aspect of mediation.
The requirement of solicitors under the Mediation Act is clear and definite.
Under S 14(1) of the Act a practicing solicitor must advise their client to consider mediation. A solicitor must also provide the client with information about mediation services and the advantages of mediation. A solicitor will also advise a client that mediation is voluntary.
It is a requirement that a solicitor do this before issuing proceedings. The solicitor must also make a statutory declaration evidencing that they have done this. Furthermore, this declaration must accompany the originating document instituting proceedings. Otherwise, the court adjourns proceedings.
If you would like to inquire about our mediation services click here.
Padhraic Harris is a mediator based in Galway City. He holds a Diploma in Mediator Training from the Law Society of Ireland. He is accredited by the Mediators’ Institute of Ireland (MII).
Through mediation, Padhraic provides a private and confidential service. Mediation can substantially lower the cost and time associated with litigation and preserve on-going relationships.
Padhraic is available for Mediation in Connacht and Munster. To inquire about our mediation services click here.