Is it time for our own Mediation Act?

September 29, 2017

Catrin Lewis of Garden Court Mediation reflects on progress in Ireland to put mediation on the statute book.

The UK as a member of the EU has been required to comply with the European Mediation Directive 2008/52/EC in respect of cross-border disputes since 2011 and the Civil Procedure Rules contain enforcement provisions as well as incentives for parties to consider mediation or face costs consequences. There is also considerable judicial support for the promotion of mediation and other forms of ADR in civil and family proceedings, including from Lord Justice Briggs in his Review. With this growing recognition of the benefits of mediation in reducing legal costs and relieving the stress involved in legal proceedings and the current uncertainty over what will happen to EU derived legislation in a post-Brexit landscape, is it now time for the UK to bring forward its own Mediation Act to put the promotion of mediation on a statutory footing?

In Ireland the Mediation Bill 2017 is currently in its final stage of passage through the Irish Parliament (Oireachtas). The general objective of the Mediation Bill 2017 is to promote mediation as a viable, effective and efficient alternative to court proceedings thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress involved in court proceedings.

The Bill will:

  • introduce an obligation on solicitors and barristers to advise parties to disputes to consider utilising mediation as a means of resolving them and, where court proceedings are launched, requires parties to proceedings to confirm to the court that they have been so advised and have considered using mediation as a means of resolving the dispute;
  • in family law cases, parties will be required to attend an information session on mediation;
  • provide that a court may, on its own initiative or on the initiative of the parties, and following the commencement of proceedings, invite the parties to consider mediation as a means of resolving the dispute;
  • provide for the suspension of court proceedings in such cases to facilitate the mediation process;
  • contain general principles for the conduct of mediation by qualified mediators;
  • provide that communications between parties during mediation shall be confidential;
  • provide that the parties to the mediation determine among themselves the enforceability of any agreement reached during the mediation process;
  • provide that the costs of mediation must be reasonable and proportionate and not linked to the outcome of the process;
  • make specific provision for the involvement of children in mediation in family law disputes;
  • provide for the introduction of codes of practice for the conduct of mediation by qualified mediators.

The current Irish Mediation Bill is a pleasingly short and straightforward piece of legislation consisting of 23 sections and one schedule (setting out the minimum requirements in relation to a Mediation Council to oversee the sector). The key objective of the Bill is to facilitate the better integration of mediation into the civil justice system.

The Bill will apply to any civil proceedings with certain exceptions, including:

  • arbitrations under the Arbitration Act 2010;
  • disputes the subject of investigation by the Workplace Relations Commission;
  • 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.

In addition, the Bill 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.

During its passage through the Irish Parliament amendments have been included to provide for further exceptions in cases involving domestic violence and where there are concerns for the welfare of children, as well as ensuring there is provision for interpreters to be made available where needed.

There is much to be commended in the Bill and it is a very interesting and useful starting point for a discussion as to what we in the UK might seek to include in a Mediation Act of our own.

Meanwhile as the Mediation Bill reaches its final stage in Ireland, Mediation Awareness Week opens there on Saturday 7th October with over 30 events taking place throughout Ireland between 7-14 October 2017.

Garden Court Mediation

Garden Court Mediation