The Mediation Act 2017 was enacted on 2 October 2017 and it is anticipated that it will come in to force in the coming weeks.

The main objective of the Act is to promote mediation as a viable, effective and efficient alternative to court proceedings. The benefits of successful mediation are reduced legal costs, quicker resolution of disputes and reducing the stress and acrimony which often accompanies court proceedings.

Mediation has been part of the legal landscape for some time but has been increasingly utilised both by litigants and the Courts.

Mediation is a form of alternative dispute resolution by which an independent party i.e. the mediator assists the parties involved in a dispute to achieve a mutually acceptable resolution. The mediator has no decision making powers and cannot force the parties to accept an agreement. If an agreement is reached between the parties, it is executed and can be made a rule of Court. However, if no agreement is reached during the mediation process, the parties can initiate or continue with the litigation. The mediation process is entirely confidential.

Section 14 of the Act provides that legal practitioners are statutorily obliged to advise their clients about the benefits of the mediation process as an alternative means of attempting to resolve disputes. Solicitors must provide information to their clients about mediation and access to such services, including the names and addresses of mediators and the benefits of mediation. If a client intends to institute legal proceedings, their Solicitor must furnish a statutory declaration to the Court stating that they have discharged their statutory obligation to inform their client of the availability of mediation.

Section 16 of the Act provides that a Court can, on the application of a party involved in proceedings, or of its own motion where it considers it appropriate to do so, invite the parties to consider mediation as an option. If the parties decide to engage in mediation, the court may adjourn the proceedings to facilitate the effective use of mediation.

The Court may take in to account any unreasonable refusal or failure by a party to the dispute to consider utilising mediation to resolve the matter, following an invitation to do so. If a party unreasonably refuses to enter mediation, after being invited to do so by the Court, then the Court could consider this when making the relevant costs order at the end of the hearing of the dispute.

The Act supports the main ethos of mediation whereby it is a voluntary agreement where the parties control the process. Mediation has been used to successfully resolve disputes in many cases, however certain disputes are not amendable to mediation due to their nature and urgency.

Breda Sheahan is an Associate Solicitor in the Commercial Department of FitzGerald Solicitors, 6 Lapps Quay, Cork.

Please note the foregoing article does not constitute legal advice and you should contact your solicitor for specific advice tailored to your circumstances.

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