The Mediation Act 2017 (the Act) is expected to commence in January 2018.
Obligations for solicitors
The Act imposes new obligations on solicitors, including a statutory declaration. Under the Act, practising solicitors are required, prior to issuing proceedings on behalf of a client, to do the following:
- Advise the client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings.
- Provide the client with information in respect of mediation services, including the names and addresses of persons who provide mediation services.
- Provide the client with information about the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and the benefits of mediation.
- Advise the client that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk.
- Inform the client of the matters concerning confidentiality and enforceability of mediation settlements as set out in the Act.
- Inform the client of the obligation on the solicitor to provide a statutory declaration that the client has been advised of the above and the effect of the non-provision of such declaration.
Where a solicitor is acting on behalf of a client who intends to institute proceedings, the originating document by which proceedings are instituted, is to be accompanied by a statutory declaration made by the solicitor evidencing (if it be the case) that the solicitor has performed the obligations imposed on him or her under the Act in relation to the client and the proceedings to which the declaration relates. If the originating document is not accompanied by such declaration the court concerned shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the practising solicitor to comply with the obligation and provide the court with such declaration or, if the solicitor has already complied with the obligation, provide the court with such declaration.
Scope of the Act
The Act shall not apply inter alia to an arbitration within the meaning of the Arbitration Act 2010, proceedings in the High Court by way of judicial review or of seeking leave to apply for judicial review, and proceedings against the State in respect of alleged infringements of the fundamental rights and freedoms of a person.
The Rules of the Superior Courts are also due to be amended to reflect the Court’s discretion to take into account any unreasonable refusal or failure by a party to the proceedings to consider using mediation, and any unreasonable refusal or failure by a party to the proceedings to attend mediation in accordance with sections 16 and 21 of the Act, when considering awarding costs.
For more information, see the Law Society ADR guide.
This article originally appeared in the November 2017 Law Society eZine. For more information, and to subscribe, see eNewsletters.