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Knowledge - ICMA

Knowledge

The Mediation Act 2017

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;

  1. Solicitors are obliged to advise clients to consider mediation in advance of issuing legal proceedings.
  2. Specific information in relation to mediation must be provided by solicitors to their clients (please see our section entitled Important Points to Note for Legal Practitioners for more information in relation to this).
  3. A court can invite parties to consider mediation as an alternative to litigation.
  4. Costs can be awarded against parties who unreasonably refuse to attend mediation.
  5. Mediation Agreements can be enforced by the Court.
  6. The confidentiality of the mediation process is now protected in legislation.
  7. Participation in mediation will still be voluntary – though strongly recommended.
  8. Mediators must provide parties with a formal Mediation Agreement.

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.

About Mediation

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.

 

The Process

Ordinarily, the Mediation process involves five phases:

  1. Preparation Phase – Selection of Mediator and agreeing terms of the Mediation (including time and venue, fees, documentation, details of attendees, role of Mediator, confirmation of confidentiality, manner in which it is to be conducted, right of each party to seek independent legal advice, right of each party to be accompanied by or assisted by a person who is not party to the Mediation);
  2. Opening Phase – Meeting of all parties during which the Mediator outlines the procedure and parties make a short opening statement to each other covering objectives. Mediators decide on a case-by-case basis whether an Opening Joint Meeting is appropriate;
  3. Exploration Phase – Private meetings between each party and the Mediator during which the Mediator explores each side’s objectives are and builds trust in order to help each party hear what the other is saying;
  4. Negotiation Phase – Direct and indirect negotiations commence with the assistance of the Mediator who will use his/her expertise to present, reframe and help settlement possibilities. Working groups of experts/lawyers may be established where necessary;
  5. Concluding Phase – Lawyers representing both sides draw up the agreement recording the settlement. The Mediator will ensure the agreement is both viable and sustainable, satisfies both parties and minimises the possibility of future dispute. Once the settlement is reached, it becomes legally binding.

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.

Role of Mediator

A Mediator should:

  • Consider whether there is any conflict in them acting as Mediator in the Mediation and should not act if that’s the case (unless the parties agree otherwise).
  • Disclose their qualifications, training and experience and continued professional development training at the outset.
  • Act with impartiality and integrity and treat the parties fairly.
  • Complete the Mediation as efficiently as possible.
  • Ensure that the parties are aware of their right to obtain independent legal advice prior to signing a Mediation agreement.
  • Ensure that the parties are aware of their right to be accompanied by or assisted by another person who is not party to the Mediation.
  • Ensure that any dispute should be resolved between the parties in a Mediation however the Mediator may make proposals to resolve it at the request of the parties.

The benefits

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

Important Points to Note for Legal Practitioners

Under the Mediation Act 2017, a practising solicitor is required to advise a client to:-

  • Consider Mediation prior to issuing proceedings as a means of attempting to resolve the dispute;
  • Provide a client with information regarding Mediation services (including names and addresses of mediators);
  • Advise a client regarding the advantages of alternative methods of dispute resolution (to litigation);
  • Aet out the benefits of Mediation;
  • Explain that Mediation is voluntary;
  • Consider whether Mediation is appropriate in the circumstances.

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.

Types of Dispute

Most forms of commercial disputes are suitable for Mediation. These include:

  • Commercial disputes – contracts and defamation
  • Personal injury professional indemnity – against solicitors and Doctors.
  • Employment disputes
  • Family Dispute
  • Landlord & tenant
  • Construction
  • Bank and third-party debt
  • Contractual disagreements between landlords and tenants.
  • Banking.
  • Product liability.
  • Medical negligence claims
  • Claim and dispute in relation to Will/Probate
  • Building contract, trespass, right of way dispute, boundary dispute
  • Insurance Disputes/Professional Indemnity Defence; Shareholder Disputes
  • Product liability
  • Professional negligence
  • Partnership disputes
  • Residential Institutions Redress Board Claim

When is Mediation not advisable?

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:

  1. When a precedent point arises that needs to be determined for the future (e.g. interpreting a clause in a contract that is in wide use);
  2. When a party requires urgent Court relief (e.g. an injunction to prevent a particular event occurring).

Where to Start

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.

First Steps in the Mediation Process:

 

1. Approach

  • Approach the other party or solicitors and enquire about their willingness to use Mediation. The Mediation Act 2017 states that solicitors must provide information on Mediation to their clients before any litigation proceedings are initiated.
  • If a direct approach does not work with the other party, you can approach one of the Mediators on our ‘Find a Mediator’ service and ask them to make contact with the other party/lawyer to discuss the way forward. This kind of approach is particularly successful as it is made by a neutral, experienced mediation practitioner or service provider;
  • If all parties are in agreement, you can use our ‘Find a Mediator’ service on this website to appoint a Mediator all parties are satisfied with.

2. Exploratory Meeting

  • If either party is unsure about entering into Mediation, it’s recommended that an exploratory meeting be set up (without commitment) with a Mediator, where the suitability of Mediation can be addressed and information on costs, timescale and preparation can be discussed;
  • Consider the consequences of alternatives to Mediation such as cost, time, outcome and publicity.

3. How to Deal with Resistance

  • If reluctance occurs at any stage, ensure you ask the other party/lawyer about their concerns and listen to the response;
  • View strong emotions being expressed by clients and/or the other side as helpful. This is material that can be used in the Mediation process;

4. Agree the Process

  • If both/all parties are agreeable to entering into Mediation:-

    • Broaden the focus of the Mediation process from solely achieving resolution to include exchange of information, widening understanding and the narrowing of issues;
    • Formalise an action plan containing clear steps towards Mediation. Please be aware, Mediation is not just a ‘one-off’ day – it’s a flexible process, tailored to the requirements of dispute and requires thorough preparation and potential follow-up;

5. Prepare a Shopping List

  • Collaboration with the other party is central to successful Mediation. Prepare a ‘shopping list’ of the information you require from the other party in order to make negotiations meaningful.
  • Consider what information/documentation you can disclose to the other party which may help them to better grasp your position and move toward a solution. Also, consider the preparation of a joint schedule of information/issues in dispute.

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.