The Mediation Act 2017 came into operation on 01 January 2018 and has the following effects on civil proceedings issued on or after this date;
The Act applies to most civil proceedings. The only proceedings it does not apply to are arbitration proceedings, disputes being investigated by the Workplace Relations Commission, certain taxation disputes, judicial reviews and family law matters.
Mediation can be a powerful and dynamic way to resolve disputes which are evidenced by the commencement of the Mediation Act 2017. The Act puts this process on a statutory footing and promotes it as an effective form of dispute resolution. ICMA is hopeful that this will result in many experiencing the wide-ranging benefits available with the use of Mediation as a real alternative to the formal litigation process.
Mediation is a private and confidential dispute resolution process wherein an independent and neutral third party (Mediator) is responsible for facilitating open communication between the parties which are in a dispute, in order to reach a mutually acceptable negotiated agreement.
Ordinarily, the Mediation process involves five phases:
Please note: The Mediation Process is voluntary and either party has the option to withdraw at any time. However, if a settlement is reached, it is legally binding and the agreement that is drawn up can be enforced as a contract between the parties.
If no settlement is reached at the Mediation, it is often reached shortly afterwards. At worse, the Mediation will usually assist in streamlining issues in any subsequent litigation.
A Mediator should:
Control: Mediation allows parties increased control over the process through which their dispute is dealt with. Furthermore, Mediation can potentially prevent litigation or legal proceedings thus each party having more control over the outcome. That said, legal proceedings can be adjourned to facilitate Mediation if they have already started.
Confidentiality: The entire process is confidential and without prejudice. Any information or documentation shared privately with the Mediator cannot be released to any other party without permission. The outcome is only publicised with prior agreement from involved parties.
Commerciality: Mediation focuses on commercially-based settlements with realistic resolutions of issues. Parties are encouraged to propose their own solution for resolving the dispute and Mediation facilitates the opportunity for parties to negotiate a tailored, mutually suited solution, which is far above what any Court judgement could provide. It’s particularly valuable with ongoing commercial relationships.
Time Saving: Typically, Mediation occurs within 4-6 weeks of the Mediation Agreement being signed. In urgent situations, it can be brought forward. As a comparison, the lead time to get a case to hearing in the Commercial Court is usually between 3-6 months and between 18-24 months in the High Court. Mediation also allows parties to move on with their businesses quickly.
Cost Effective: Mediation is a particularly cost-effective alternative to litigation. It allows parties to move on with their businesses quickly, resulting in significant cost saving as regards management time. Legal costs and expenses associated with the process are also significantly less that the cost of litigating a dispute to trial.
It’s estimated that the cost of Mediation is approximately 20% of the cost of going to court
Under the Mediation Act 2017, a practising solicitor is required to advise a client to:-
If a client chooses to initiate proceedings, a statutory declaration must be provided to the relevant court office from the practising solicitor when the proceedings are being filed. This declaration should evidence that the solicitor has carried out the above steps. A court will adjourn proceedings until such time as this declaration has been filed if it is not done at the outset.
ICMA can provide further information to legal practitioners in relation to these requirements. Please contact us via this website.
Most forms of commercial disputes are suitable for Mediation. These include:
Legally, Mediation should be considered as the first option for dispute resolution, whatever their nature. However, there are two instances where Court intervention may be necessary:
Mediation offers a clear way forward and provides various benefits including speed, cost-effectiveness, outcome control, confidentiality, flexibility, creative solutions and closure. With the Mediation Act 2017 having been commenced – it is one of the most recommended ways to resolve a dispute or disagreement.
Parties must examine the range of options available to assist in resolving the problem. Ensure your objectives, real needs and concerns are defined and discuss the best way to achieve these.
If both/all parties are agreeable to entering into Mediation:-
These 5 steps should help you prepare for any Mediation and should assist you in entering into it with the right frame of mind. This is key to having a successful and effective Mediation.
For further information, please contact us or use our ‘Find a Mediator’ service if you have any queries and would like to discuss Mediation further.