Comments on the Mediation BillDate:13.07.2017
Today the Dáil has passed the Mediation Bill; an official acknowledgement by the State of the valuable role that mediation can play in dispute resolution in Ireland. The Bill now passes to the Seanad prior to enactment.
Ballymun Community Law Centre broadly welcomes today’s passing of the Mediation Bill. This will play a vital role in promoting mediation as a viable alternative to court proceedings, thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress and worry which often accompanies court proceedings.
Ballymun Community Law Centre provides a voluntary mediation service to parties engaged in a dispute seeking support from impartial professional voluntary mediators. The majority of our mediation clients have not proceeded with a legal procedure and therefore the Mediation Bill does not speak to the majority of our cases as they have not instigated legal proceedings.
However, in those community cases that have advanced to seeking legal advice, the new legislation obliges solicitors to give their clients specific advice and information about available mediation services before they opt for court proceedings.
Under the new legislation, mediation remains a voluntary process although a court could recommend it and court proceedings could be set aside if litigants participate in the mediation process.
The Bill underpins good practice within existing mediation services and will do much to promote further understanding of mediation to disputants considering engaging or engaged in a legal process.
However, there are aspects of the Bill that have the capacity to challenge cornerstones of accepted mediation practice.
Currently, if a case is referred from the courts to mediation the mediation service is obliged only to inform the court if the participants were successful in reaching an agreement or not and if unsuccessful the court will proceed. Under the new legislation, if mediation has been referred from the court the Bill allows the judge to exercise discretion in requesting a report from the mediator. This report can speak to how various outcomes were reached; if mediation did not proceed, why? If agreement was only partially reached what happened with regards the remaining issues? There is a concern that this discretion under the act has the capacity to undermine the valued confidential nature of process and may negatively influence how a participant engages and exchanges relevant information pertaining to the dispute.
Another significant aspect of the Bill speaks to cases where costs may be awarded. The Bill allows the court to consider why a perspective participant may have declined the opportunity to participate in mediation and this may have a negative inference on the overall outcome for the parties as the court may take a dim view on why mediation was declined and it is suggested may influence the outcome. With this in mind, it is likely to assist parties in resolving their disputes by supporting effective discussions and reaching a mediated settlement amicably and efficiently.
Some areas are also excluded under the Bill. The legislation does not apply to disputes in certain areas such as those covered by the Workplace Relations Commission, or matters under tax and customs legislation. It will also exclude childcare, domestic violence, judicial review and proceedings against the State dealing with alleged infringements of human rights.
Want to find out more about mediation? Access our article - Ten Things You Should Know About Mediation