An Overview of the Irish Mediation Act 2017

Owing to a variety of factors like the impact of economic crisis, fundamental change in dispute resolution culture and others, the mediation practice in the Irish jurisdiction had to grapple with the actual practice. In the Ryan v. Walls Construction Limited [2015] IECA 214, the Court of Appeal underscored the failure on the part of the government of Ireland in introducing alternative dispute resolution as a part of the justice system of the country and being a common law country, in the absence of any legislation, the regulatory role had to be played by the judges. But, a watershed moment has struck the legal system of Ireland with the recent publication of the long-awaited Mediation Act. This provides a concrete statutory footing to mediation as an efficient alternative to conventional dispute resolution techniques. Some of the key provisions of the Act include:

  • The procedural hitches have been removed such as the dilution of the imposition of the limitation period. Section 18 of the Act provides for an exclusion of the period of mediation taking place from the calculation of the limitation period.
  • Section 16 provides that the Courts, either on the application by the party/s or on its own motion, may invite the parties to mediate the matter. The proceedings shall be held adjourned for the time period of mediation.
  • Coming to the most important provision of the Act: Section 14. It provides for a statutory compulsion on the solicitor or advocate to advise the clients to pursue mediation as the alternate to the court proceeding. They do not just have to advise them to choose mediation as an option but also provide them the requisite details of the nitty-gritty of it along with the details of various mediators. A statutory declaration by the advocate evidencing the compliance of such duty should accompany the application made by the client before the court. If the solicitor fails to make such a declaration, the case shall be adjourned by the court till such compliance.
  • There are a bunch of sections – like Section 14 – of the new Act which are essentially sanctions for not promoting mediation as an alternate to litigation. In addition to the sanctions imposed on lawyers for non-compliance, Section 21 also imposes a sanction on the litigants too. According to it, if the court finds unreasonable grounds for parties to not resort to the mediation process, it would keep that in mind while awarding costs at the end of the suit.
  • Section 22 provides for the court to direct parties in a personal injuries action to meet, discuss and settle the dispute by means of mediation.

To sum up, with the passage of a bill comprising of such robust provisions, Ireland is set to embrace the recourse to mediation as other common law jurisdictions have. The measures making it mandatory for the advocates to direct the clients to mediation and the judicial discretion to award costs penalties with regards to the conduct of the litigants will definitely have a positive impact on the populace of Ireland will have more access to mediation as a means to seeking dispute resolution.

References:

  1. http://www.irishtimes.com/news/crime-and-law/lawyers-will-be-forced-to-suggest-mediation-under-new-bill-1.2920418
  2. http://kluwermediationblog.com/2017/02/19/mediation-act-2017/

 

Ambrish Tewari, Gujarat National Law University

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