The Mediation Act 2017 The Mediation Act 2017 became law on 1st January 2018. Bill Holohan provides an overview of the legislation which he says places new statutory obligations on litigants to consider alternative dispute resolution options
T
he Mediation Act 2017 (no 27 of 2017, the “Act”), following certain amendments to the draft bill, was passed by both houses of the Oireachtas in September 2017 and signed into law by the President, Michael D Higgins on 2nd October 2017. The Commencement Order was signed on 8th December 2017 and the Act commenced on st January 2018. The general scheme of the bill received prelegislative scrutiny in May 2012. Seven bodies associated with the mediation sector including the Chartered Institute of Arbitrators Irish Branch and the Law Society made written and oral submissions to the Joint Committee on Justice, Defence and Equality. A further seven bodies made written submissions on the general scheme to the joint committee. A report published by the joint committee in June 2012 indicated that the main points of interest raised in the submissions were public awareness of mediation, a national register of mediators, confidentiality and codes of practice for mediators.
In addition, the Act is not intended to be interpreted as replacing any mediation or other dispute resolution process which is already provided under any other enactment, contract or agreement. The key objective of the bill is to facilitate the better integration of mediation into the civil justice system. It achieves this by providing clarity in relation to: • the general conditions of mediation; • role of the parties and the mediator in mediation; • confidentiality of mediation communications; • enforceability of mediation settlement; • the establishment of a code of practice for mediators; • the establishment of a Mediation Council to oversee the sector; • the duty of a solicitor to advise a party in relation to mediation; • the duty of a barrister to advise in relation to mediation; • the role of the court in relation to mediation; and • the requirement to attend information sessions on mediation in family law and succession proceedings.
What Does the Act Provide?
The Department of Justice in Ireland has described mediation as “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 2017 Act is the latest legislative development in the area of Alternative Dispute Resolution (ADR) within the Irish legal system, since the Construction Contracts Act 2013. The Law Society, CIArb Ireland and other groups had been campaigning for the passage of the Mediation Bill since making submissions to the Oireachtas Committee on Justice in 2012. The Act also provides for the regulation of mediators and the setting of standards and establishing codes of practice. Mediators will have to provide people using their services with details of their training, qualifications, experience, etcetera.
The Act for the first time now places a new statutory obligation on litigants to consider mediation as a means of resolving a dispute. The Act applies to disputes with the following exceptions: • arbitrations under the Arbitration Act 2010; • disputes which are the subject of investigation by the Workplace Relations Commission; • appealable matters within the meaning of section 949A of the Taxes Consolidation Act; • proceedings before tribunals or commissions of investigation; • proceedings in the High Court by way of judicial review; • proceedings against the State regarding infringements of fundamental human rights; • proceedings under the Domestic Violence Acts; and • proceedings under the Child Care Acts. 12 the Parchment
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