Lawyers at Mason Hayes & Curran (MHC) have given a guarded welcome to new legislation on the Personal Injuries Assessment Board (PIAB), but have raised questions about whether the introduction of mediation into the process will achieve the intended reduction in costs.
Last month, Robert Troy (Minister of State for Trade Promotion, Digital and Company Regulation) said that drafting would begin on the Personal Injuries Resolution Board Bill.
Under the proposed legislation, the personal-injuries body – which would be known as the Personal Injuries Resolution Board (PIRB) – would be able to offer mediation as a means of resolving a claim.
In a note on the firm’s website, however, MHC lawyers say that the bill is silent about who would ultimately be responsible for the costs of an unsuccessful mediator or mediation process.
“Would the costs of any mediation be apportioned where mediation resulted in an agreement on the apportionment of liability between the parties?” they ask.
The firm says that there is “no doubt” that mediation has the potential to offer a speedy non-adversarial approach.
It points out, however, that practitioners have expressed concerns that the introduction of mediation may have the opposite effect, and create additional delays, or add additional costs, to the process, by effectively adding another layer to the existing system.
“At present, the procedure for covering the cost of mediation, together with the actual expected costs of mediation – including the cost of legal representation on behalf of the parties – remains unknown.
“Accordingly, it is currently unclear whether the intended significant reduction in costs will actually be achievable, when the entire cost of the mediation is factored in,” the MHC lawyers conclude.
Minister Troy had told the Seanad last month that mediation offered by PIAB would follow recognised principles – including being a fully voluntary process, ensuring confidentiality and impartiality, and providing the opportunity for the parties to determine the issues that required resolution.
He had added that mediation would not affect the timeline for assessment of a claim, pointing out that the board would still be obliged to assess claims within nine months of confirmation of the respondent’s consent to the assessment process.