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Legalising Mediation
March 1, 2017
Ireland has taken a significant step towards bringing mediation within the remit of its statute book. The Mediation Bill 2012 which emerged from Ireland has now been superseded by its Mediation Bill 2017 and sets out a statutory framework for the future of mediation. Just because it’s a Bill, does not mean mediators have to be lawyers.
Published on Monday 13th February 2017, this short Bill – 23 sections and a Schedule – will create a Mediation Council of Ireland in accordance with the Schedule which in turn will promote the resolution of disputes as well as devise a Code of Practice for mediators. Although the Bill applies to any civil proceedings and makes special provision in personal injury cases for the court to direct the parties to attempt to mediate (s.22), there are a raft of exceptions. While it will not displace agreements to mediate, the following matters are some of the areas which fall outside the operation of the Bill: arbitrations, matters under tax and customs legislation, employment disputes which are already catered for by the Workplace Relations Commission, judicial review and proceedings under the Child Care and Domestic Violence Acts.
Several provisions reflect those which mediators in UK will already be familiar. A mediation settlement is legally enforceable (s.11); where parties agree to mediate, legal proceedings may be adjourned and the period of time during which mediation has taken place will be disregarded for the purpose of a limitation period (s.18); costs will operate as an incentive to mediate as the court will be able to take into account any unreasonable refusal or failure by a party to consider using mediation, or to attend mediation (s.21).
In respect of family proceedings, like MIAMs, it will be necessary to demonstrate to the Court by way of a statutory declaration that mediation has been considered before proceedings can be issued (s.14).
One aspect which may raise an eyebrow is in relation to mediator’s fees. Under s. 20(2) the fees and costs of a mediation ‘shall be reasonable and proportionate to the importance and complexity of the issues at stake and to the amount of work carried out by the mediator’. It is not difficult to imagine how these concepts may influence fee negotiation. Interestingly the Bill establishes a formal relationship between the Mediation Council of Ireland and the State. For example, the Mediation Council is to report annually by 30th June each year to the Minister for Justice and Equality. Perhaps there is a hope that by placing mediation on a statutory footing, there will be greater awareness of it and confidence in using it. Time will tell.
