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Putting it all on the table

The newly commenced Mediation Act 2017 is to be welcomed by family lawyers, as it will encourage all those involved in the resolution of legal separation, divorce, and private child law disputes to seriously consider mediation as an alternative to court.

While the act only contains 26 sections, it includes a number of changes that came into effect from 22 January, 2018 and are immediately relevant to family law practice and procedure – especially in the circuit family court.

Mediation and mediator 

Mediation is defined in section 2 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 the dispute”.

A mediator is described as “a person appointed under an agreement to mediate to assist the parties to the agreement to reach a mutually acceptable agreement to resolve the dispute the subject of the agreement”.

The Mediation Act is intended to:

• Facilitate the settlement of disputes by mediation
• Specify the principles applicable to mediation
• Specify arrangements for mediation as an alternative to the institution of civil proceedings or to the continuation of civil proceedings that have been instituted
• Provide for codes of practice to which mediators may subscribe 
• Provide for the establishment of a body, to be known as the Mediation Council of Ireland, and to require that council to make reports to the Minister for Justice regarding mediation in the State
• Provide an opportunity for parties to family law proceedings or proceedings under section 67A(3) or 117 of the Succession Act 1965 to attend mediation information sessions
• Amend the Guardianship of Infants Act 1964, the Judicial Separation and Family Law Reform Act 1989, and the Family Law (Divorce) Act 1996, and to provide for related matters
• The act contains principles in relation to the mediation process, agreements to mediate, and the role of the mediator. Codes of practice for the conduct of mediations, including the conduct of mediators, must be published by the minister “as soon as practicable” and following submissions by interested parties

Although not specified as one of the objectives of the act in the long title, one of the most practical effects is to increase the obligation on solicitors to inform clients about mediation prior to the issue of civil proceedings.

Family law

The Mediation Act and the new rules of court increase safeguards to ensure that those intending to issue proceedings pursuant to the Judicial Separation and Family Law Reform Act 1989, the Family Law (Divorce) Act 1996 and the Guardianship of Infants Act 1964 are aware of alternatives to going to court.

Solicitors in family law cases must now give more information about mediation to clients before starting the above cases. In addition, greater proof of compliance with these duties is required by the courts following the introduction of the new rules of court in relation to mediation, which came into effect in the District, Circuit and High Court as and from 22 January 2018.

The additional information that must be supplied by solicitors relates to the confidentiality of mediation agreements and their enforceability pursuant to section 10 and 11 of the Mediation Act.

The level of proof of compliance by solicitors is increased from the solicitor having to provide a certificate of compliance with sections 5 and 6 of the Family Law Reform Act, or sections 6 and 7 of the Family Law (Divorce) Act and section 20 and 21 of the Guardianship of Infants Act, with the obligation of now having to make a statutory declaration to this effect. It is likely that both these measures will increase the numbers of people using mediation as an alternative to court, and is to be welcomed.

The new Circuit and High Court rules contain new family law statutory declaration forms. These statutory declarations have replaced the old section 5/6/7 certificates for judicial separation and divorce for proceedings issued as and from 22 January 2018.

Family lawyers will need to replace their section 5/6/7 certificates with the new statutory declarations as set out in the rules of court. Information sessions on mediation for family law and succession act matters may be introduced by the minister pursuant to section 23 of the Mediation Act as part of a scheme following public consultation.

Prior to the enactment of this legislation, there was some discussion about requiring mandatory attendance at information sessions on mediation by intending litigants prior to issue of court proceedings in family law matters, but this was not included in the act as passed by the Oireachtas.

Other provisions

Other elements of the Mediation Act that will impact on family lawyers, but that are not exclusive to the area of family law include:

• A greater role for the courts in directing mediation either on application of one of the parties or on its own initiative, with any such applications by one of the parties to be made by notice of motion not more than 14 days before the hearing date – section 16(4)
• Where the court directs mediation, it may order a mediator to produce a report for the court that would state if mediation did not take place, why it did not take place, details of any mediation agreement reached, and, if some agreement reached, the terms of that agreement. Any report must be given to the parties at least seven days before it is lodged in the court by the mediator
• Section 20 states, in relation to mediation fees, that unless otherwise ordered by the court or otherwise agreed, the costs of mediation will be paid equally by the parties and “the fees and costs of a 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”
• In awarding costs in relation to proceedings where an application was made to direct mediation, a court may, where it considers it just, have regard to 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 attend mediation following an invitation to do so, pursuant to section 16(1)
• While the act has been a long time coming, it was hoped that there would be a more formal system of regulation of mediators. However, the new act is a good start to encouraging mediation of disputes, and it is to be hoped that it will result in earlier and more cost-effective resolution of judicial separation, divorce, and private child law cases in the coming years