Overview of the Mediation Act 2017 (“the Act”)
The Purpose of the Act
The key policy objectives of the Mediation Act 2017 (“the Act”) are to promote increased awareness and use of a particular alternative dispute resolution (“ADR”) mechanism known as mediation. This mechanism can be used even if proceedings have been issued and the Act has been designed so that mediation will co-exist alongside the court system.
What is Mediation?
The Act defines mediation as a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve a dispute. Certain types of disputes have been excluded for example arbitration, disputes which fall under the function of the Workplace Relations Commission and judicial review.
Key Principles of Mediation
There are a number of different forms of mediation; for example facilitative, evaluative, narrative or transformative mediation.
However, it appears from the definition of mediation in the Act that the legislature has adopted the traditional form of mediation known as facilitative in which the mediator is a neutral intervener who offers minimal assistance.
This is reinforced by section 6(9) which provides that it is for the parties to determine the outcome of the mediation. Therefore, the Mediator will facilitate communications between the parties, but full responsibility will lie with the parties to achieve a resolution.
One exception is set out in section 8(4) which provides that the mediator may, at the request of all the parties, make proposals to resolve the dispute, but it shall be for the parties to determine whether to accept such proposals. This provision may perhaps be used where the parties have reached an impasse but are still committed to reaching a resolution.
Both the definition of mediation and section 10 of the Act provides that the mediation process is confidential. In particular, section 10(1) of the Act provides that all communications (including oral statements) and all records and notes relating to the mediation shall be confidential and shall not be disclosed in any proceedings before a Court or otherwise. There are of course exceptions to this namely:
A. Exception under section 10(2)
- In order to implement or enforce a mediation settlement,
- To prevent physical or psychological injury to a party,
- Is required by law,
- Is necessary in the interest of preventing or revealing the commission of a crime, the concealment of a crime, a threat to a party, or
- Is sought or offered to prove or disprove a civil claim concerning the negligence or misconduct of the mediator occurring during the mediation or a complaint to a professional body concerning such negligence or misconduct.
B. Exception under section 10(3)
Evidence introduced into or used in mediation that is otherwise admissible or subject to discovery in proceedings shall not be or become inadmissible or protected by privilege in such proceedings solely because it was introduced into or used in the mediation.
C. Exception where Court has invited parties to consider using mediation
In circumstance where a mediation did take place after an invitation from the Court under section 16 (see below) but an application to re-enter the proceedings was subsequently made, the Mediator is required to prepare a report setting out whether or not a settlement was reached and, if one was reached, a statement as to the terms of the mediation settlement. It appears that this report and the terms of settlement may not enjoy the protection of confidentiality.
D. Exception where the Court is deciding to award costs of proceedings following an unreasonable refusal by a party to consider using mediation following an invitation under section 16 of the Act.
Mediation is a voluntary process in that the parties must voluntarily agree to participate in the process. They must also choose voluntarily to continue participating in the process, for example section 6(4)(A) provides that a party may withdraw from the mediation at any time during the mediation. A person can be accompanied to a mediation by a person including a legal advisor who is not a party to the dispute.
Any settlement reached must be agreed voluntarily between the parties. The Mediator or an opposing party cannot impose a solution or settlement terms on the other party.
4. Enforceability of Agreement
Pursuant to section 11(1) of the Act, the parties shall determine if and when a settlement has been reached and whether that settlement is to be enforceable. However, section 11(2) provides that notwithstanding subsection 1 a settlement shall have effect as a contract between the parties to a settlement except where expressly stated that it shall have no legal force until it is incorporated into a formal legal agreement or contract to be signed by the parties.
Section 11(3) provides that a court may on application of one or more parties to a mediation settlement, enforce its terms except where the court is satisfied that the mediation settlement:
- Does not adequately protect the rights and entitlements of the parties or their dependants (if any),
- Is not based on full and mutual disclosure of assets,
- Is otherwise contrary to public policy
- A party to the mediation settlement has been over borne or unduly influenced by any other party in reaching the mediation settlement.
It is up to the parties to select a mediator. In terms of regulation of the profession, the Act has adopted a “light-touch” approach. Pursuant to section 9 of the Act the Minister shall, as soon as is practicable after the coming into operation of the Act, prepare and publish a code of practice or approve a code of practice prepared by a person other than the Minister which sets standards for the conduct of mediations. Pursuant to section 12(1), the Minister can declare that the body specified in the said order shall be recognised and known as the Mediation Council of Ireland. The Act does however place certain requirements on the mediator namely:
- Conflict of Interest before mediation – Section 8(1)(a)(i) provides that the mediator must carry out enquiries as to actual or potential conflicts of interest prior to the commencement of the mediation. If a conflict comes to their attention prior to the mediation commencing, then they cannot act as a mediator.
- Details of qualifications – Section 8(1)(b) provides that prior to commencement of mediation, the mediator must furnish the parties with details of their qualifications, training, experience, CPD training and further furnish to the parties a copy of any code of practice published or approved in accordance with the Act which they subscribe.
- Conflict of interest arising during a mediation – Section 8(2)(a) provides that if during the course of the mediation, the mediator becomes aware or ought reasonably to be aware of an actual or potential conflict of interest, then the mediator must declare same. The mediator must cease to act unless the parties agree to them continuing to act as the mediator.
- Treatment of parties – Section 8(2)(b) provides that the mediator must act with impartiality and integrity and treat the parties fairly.
- Legal advice for parties – Section 8(2)(d) provides that the mediator must ensure the parties are aware of their rights to each obtain independent advice (including legal advice) prior to signing any mediation settlement.
- Length and speed of the mediation – Pursuant to section 6(5) of the Act, the mediator together with the parties is required (having regard to the nature of the dispute) to make ever reasonable effort to conclude the mediation in an expeditious manner which is likely to minimise costs.
- Charging of fees – Section 20(2) provides that the fees and costs of the 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 should also be noted that section 6(10) provides that the fees and costs of the mediation shall not be contingent on its outcome. Pursuant to section 20, unless ordered by the court or agreed between the parties, the parties shall pay to the mediator the fees and costs agreed in the agreement to mediate or share equally the fees and costs.
- Withdrawal from mediation – Pursuant to section 6(6), the mediator may withdraw from the mediation at any time by notice in writing to the parties.
- Negligence – In respect of negligence on the part of the mediator, section 10(2)(e) contemplates the potential for redress against a mediator by way of civil claims and/or complaints to professional bodies.
The Agreement to Mediate
The parties must enter into an agreement to mediate prior to the commencement of the mediation. Section 7 provides that the parties and proposed mediator shall prepare and sign an agreement to mediate which appoints the proposed mediator and contains the following information:
- The manner in which the mediation is to be conducted,
- The manner in which the fees and costs of the mediation will be paid,
- The place and time at which the mediation is to be conducted,
- The fact that the mediation is to be conducted in a confidential manner,
- The right of each of the parties to seek legal advice,
- The manner in which the mediation may be terminated (subject to section 6(6) which allows the mediator to withdraw at any time by notice in writing stating the reasons for withdrawal),
- Such other terms as may be agreed between the parties and mediator.
Statute of Limitations
Section 10 of the Act provides that the period beginning on the day on which an agreement to mediate is signed and ending on the day which is 30 days after (a) the mediation settlement is signed by the parties and mediator or (b) the mediation is terminated, whichever first occurs, shall be disregarded for the purpose of the Statute of Limitations.
It should be noted that the time spent obtaining the other sides agreement to mediate and approving and engaging a mediator is not counted. As these stages can take time, the parties should be careful that the limitation period does not expire (or that the other side is delaying matters so that the matter becomes statute barred).
Part 3, section 14 of the Act sets out Solicitors’ obligations. From the 1st of January 2018 (being the date of commencement) a Solicitor shall, prior to issuing proceedings on behalf of a client, advise the client of the following:
- Consider using mediation as a means of attempting to resolve the dispute,
- Provide the client with information in respect of mediation services, including names and addresses,
- Provide information about the advantages of resolving the dispute otherwise then by way of the proposed legal proceedings,
- Advise the client of the benefits of mediation including that it is voluntary (but may not be appropriate where the safety of a child is at risk), confidential and that the mediation settlement can be enforceable if the parties agree.
A. Inviting parties to mediate – Pursuant to section 16 of the Act, the Court may on application of a party or of its own motion invite the parties to consider mediation and provide the parties with information about the benefits of mediation. An application by a party requesting the court to invite the parties to use mediation must be made no later than 14 days by motion on notice before the date on which the proceedings are first listed for hearing, unless the court orders otherwise.
If the parties decide to engage in mediation following the invitation, then the Court may adjourn the proceedings, make an order extending time for compliance by a party with the rules of the court or make such order or direction as it considers necessary to facilitate the use of mediation.
The existing Order 56A rule 2 of the Rules of the Superior Courts have been amended in accordance with the Act and provides that the Court may issue an invitation to consider mediation mentioned in section 16(1) of the 2017 Act of its own motion in any civil proceedings to which the Act applies, on any occasion on which such proceedings are before the Court. Furthermore, where following an invitation by the Court the parties decide to engage in mediation, the Court may having heard the parties, make such orders in accordance with section 16(2) of the 2017 Act as it considers appropriate.
Given that Order 56, rule 2 triggers Order 99, rule 1B in respect of costs (see below), the Court of Appeal’s decision in Atlantic Shellfish Limited and Ors v the County Council of the County of Cork & Ors  IECA 283 should be considered when assessing whether an application pursuant to section 16 is appropriate. It should be noted however that the judgment was given before Order 56A rule 2 was amended following the commencement of the Act, however the wording of the rule was relatively similar.
Background – The first named Plaintiff operated an oyster fishery and the second named Defendant was a shareholder and director of the first named Plaintiff. The first named Plaintiff had operated its business on foot of certain Oyster Fisheries Orders made in 1963 and 1970 and maintained that from 1988 onwards, the fishery was contaminated by untreated sewage water that had been redirected into Cork Harbour following the grant of a foreshore licence. As a result, the Plaintiffs had issued proceedings in 1992 against Cork County Council and the Minister for the Marine. Those proceedings were settled, and the parties agreed inter alia that a secondary waste water treatment plant would be constructed. The treatment plant was installed, however the oysters continued to be contaminated and a significant number of customers reported becoming ill over the subsequent years. In 2002, the first named Plaintiff was forced to close its fishery permanently.
Proceedings were issued in October 2001 by the Plaintiff in respect of the loss suffered as a result of this closure. In 2014, the Plaintiffs issued a motion seeking an order pursuant to Order 56A, rule 2. The Court refused to exercise its discretion concluding that the purpose underlying the Plaintiffs’ application was artificial and that the real purpose of the application was to seek to “copper fasten its position with regard to a future application for costs”. The Court indicated that it might have taken a different course had it been satisfied that the State Defendants’ reasons for declining mediation could be considered to be other than bona fide or where there was still some reasonable possibility that the invitation, if so ordered, would be accepted.
Issue – The appeal focused upon the circumstances in which a court should exercise its discretion in favour of making an order pursuant to Order 56A, rule 2 inviting the parties to engage in ADR.
Decision – The Court outlined that when dealing with an application pursuant to Order 56A, rule 2, it must consider whether it would be appropriate to exercise its discretion having regard to all of the circumstances of the case.
- It must first be satisfied that the issues in dispute between the parties were amenable to the type of ADR proposed.
- Assuming that the Court answered the first question in favour of the applicant, then the Court should consider any other relevant circumstances inter alia whether the application was made bona fide and that the applicant was genuinely willing to engage with the proposed ADR rather than one made for the sole purpose of improving the applicant’s negotiating position given that the effect of the order would be to trigger the cost provisions of Order 99 rule 1B (see below).
- The Court’s decision may further be influenced by factors such as:
(i) the manner in which the parties had conducted the litigation up to the date of the application,
(ii) the existence of any relevant interlocutory orders,
(iii) the nature and potential expense of the proposed ADR,
(iv) the likely effect of the making of the order sought on the progress of the litigation should the invitation be accepted, and the ADR prove unsuccessful,
(v) the potential saving in time and costs that might result from the acceptance of an invitation,
(vi) the extent to which ADR can or might potentially narrow the issues between the parties
(vii) any proposals made by the applicant concerning the issues that might be dealt with in the course of the ADR, and
(viii) any proposals as to how the costs of such a process might be borne.
Decision – In this particular case, the Plaintiffs’ motion failed to pass the first question.
The dispute was not amenable to mediation as it raised a novel point of law in relation to the grant of the foreshore licence. It was argued that the State owed a duty to any person who may be adversely affected by the operation of that licence such that the State is obliged to police and enforce the licence in order to protect such third parties (i.e. the Plaintiffs).
B. Adjournment of proceedings where agreement to mediate has been entered into – pursuant to section 19, where parties have entered into an agreement to mediate and one of those parties commences proceedings in respect of the dispute, then the other party can apply, after an appearance is entered but before delivering any pleadings or taking any steps in the proceedings, to adjourn the proceedings.
The Court will adjourn the proceedings where it is satisfied that there is insufficient reason why the dispute should not be dealt with in accordance with the agreement to mediate and the applicant at the time when proceedings were commenced was willing (and still remains so) to do all things necessary for the proper implementation of the agreement to mediate.
C. Costs – section 21 of the Act provides that where the Court has referred a matter to mediation under section 16, it may have regard to any unreasonable refusal or failure by a party to consider using mediation or to attend mediation, in the awarding of costs in proceedings. Section 21 sets out the factors to be considered by the Court in awarding costs namely that the court will consider any unreasonable refusal or failure by a party to consider using mediation and any unreasonable refusal or failure by a party to attend mediation following an invitation to do so by the Court under section 16.
Order 99, rule 1B already provided that the Court, in considering the awarding of costs of any appeal or of any action, may where it considers just, have regard to the refusal or failure without good reason of any party to participate in any ADR process referred to in Order 56A, rule 2 (as it was before it was amended in accordance with the Act). Order 99, rule 1B has been amended as follows:
- In considering the awarding of the costs of any appeal or of any action in which the parties have been invited by the Court to consider mediation as a means of attempting to resolve the dispute the subject of the proceedings in accordance with section 16(1) of the Mediation Act 2017, may, where it considers it just, have regard to the matters set out in section 21 of that Act.
Consequently, a Court will consider when deciding on the issue of costs whether a party has, following an invitation made in accordance with section 16 of the Act, unreasonably refused or failed to consider using mediation or to attend a mediation.
It should also be noted that the Court has confirmed that Order 99 rule 1B will only be triggered once an invitation has been made in accordance with Order 56A, rule 2 [Hollybrook (Brighton Road) Management Company Limited v All First Property Management Company Limited and Anor  IEHC 423]. An informal invitation by the Court should not trigger cost implications.
Whilst it appears that there have been no written judgments yet in which an Irish court has awarded costs against a party who had unreasonably refused an invitation to mediate the dispute, the English Court of Appeal case of Dunnett v Railtrack plc  1 W.L.R. 2434 may provide some guidance going forward.
Facts – the Claimant brought a case suing for damages arising from negligence following the death of her three horses which had been struck by the Defendant’s express claim. The Claimant was unsuccessful at first instance and on appeal. At first instance, the Judge has suggested that the parties consider mediation. The Claimant then referred this suggestion to the Defendant who instructed its solicitors to turn it down as it would involve the payment of money, which it was not willing to contemplate, over and above what it had already offered during negotiations.
Decision – the Court of Appeal held that the reasoning used to reject the offer indicated that the Defendant misunderstood the purpose of ADR. It was a lawyer’s duty to further the overriding objective of the Civil Procedure Rules 1998 being that the Court must deal with cases justly and at proportionate cost. This duty included consideration of whether ADR was a possible remedy. Consequently, if a party rejected ADR out of hand, he would suffer the consequences when costs came to be decided and for that reason no order was made as to the costs.
Natalie Coen – Solicitor