As a keen advocate of mediation, I have always been somewhat frustrated by the resistance to the concept by certain sections of the legal profession, who regard this as just as expensive an option as litigation, with no guarantee of finality.
The Irish Mediation Bill which came into law on the 2nd October 2017, will hopefully drive coach and horses through such tenuous and ill-conceived reasons for not embracing ADR at an early stage of legal proceedings.
The Act is a welcome development, particularly for the business community, as it encourages the use of an alternative effective and efficient method of dispute resolution to the traditional, costly litigation system. It reinforces existing provisions recognising mediation in the Irish Courts and places a party’s obligation to consider mediation on a statutory footing, giving greater structure and clarity to a method of dispute resolution which the Irish Courts have often encouraged.
The essence of mediation is preserved by the Act. It remains a voluntary, confidential and collaborative agreement where parties have the right to legal advice and the right to walk away at any stage. At the outset, the parties will sign a document known as an ‘Agreement to Mediate’ which sets out the formalities of the mediation.
Notably, the signing of this document stops the clock on any limitation period which might apply under the Statute of Limitations. This gives an incentive to a claimant who would not otherwise engage in mediation to do so, as they will not be prejudiced by a time lapse in circumstances where mediation has been unsuccessful and court proceedings ultimately prove to be necessary.
The Act makes it mandatory for lawyers to advise their clients to consider mediation as a means of dispute resolution, setting out the advantages of resolving the dispute otherwise than by way of the proposed proceedings. Specifically, the lawyer will be required to provide the client with background information regarding the benefits of mediation services, details of suitably qualified mediators and information on the enforceability and confidentiality of such a settlement.
Parties to the dispute are also obliged to seriously consider mediation as a means of dispute resolution. When awarding costs in respect of proceedings a court may have regard to any unreasonable refusal by either party to consider using mediation, and any unreasonable refusal by either party to attend mediation.
These statutory obligations should encourage litigants to consider the financial implications before the parties get bogged down in expensive and what are often stressful and acrimonious legal proceedings. In addition, where a claimant elects not to opt for mediation and court proceedings are launched, parties to the proceedings will be required to confirm that they have been advised about the mediation option and have considered it.
A simple enough concept, and indeed logical step, you might think, but up until now, the utilisation of mediation has only very slowly been gaining traction as the word spreads of positive outcomes and talented mediators.
Indeed, if handled diligently and professionally, a successful mediation can bring a cost-effective result for both sides in the case, and also for the lawyers, who will still be paid for their time in supporting their respective clients, but without all the wasted time and posturing that can be involved in the run up to full blown litigation.
I suppose therefore the only question to ask is why it has taken so long for such an obvious statutory step and whether other jurisdictions will now follow Ireland’s lead in encouraging mediation before litigation.