KENT CARTY BRIEFING NOTE – OCTOBER 2017
The introduction of the Mediation Act 2017 with effect from the 2nd October 2017 marks a significant event in the resolution of civil disputes in Ireland.
The 2017 Act places on a statutory footing measures that will help facilitate alternatives to civil proceedings, provides for the establishment of a code of practice for mediators and a body known as The Mediation Counsel in Ireland.
All of this is part of the specific commitment in the programme of Government for financial recovery (2011 – 2016).
How will it work?
- The Act defines mediation 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”.
- Both solicitors and barristers must now prior to the commencement of civil proceedings advise their clients to consider using mediation and provide them with relevant information including the likely costs and timescale of legal proceedings.
- A Court can also apply on its own initiative or through the application by one of the parties, invite both sides to consider the use of mediation.
Mediation is already well established in the resolution of civil disputes. The EC Mediation Regulations 2011 introduced into Irish law the EC Directive on the use of Mediation for Cross-Border disputes.
In our experience Mediation is ideally suited for most types of disputes. Some examples are:
- Construction disputes – especially multi party construction disputes which benefit significantly from mediation and allows early engagement between parties and experts often preceded by expert conferral and preparation of costs schedules.
- Medical negligence proceedings and catastrophic personal injury type proceedings
- Succession law and family law proceedings where close familial relations are strained and polarised which benefit from an early mediation.
Family Law cases
Section 23 now allows for the provision of information sessions in family law proceedings and succession proceedings.
This is particularly welcome in cases which are often characterised by the break up and disharmony in familial relationships.
There is a positive requirement under Section 25 and 26 in Judicial Separation and Divorce proceedings to give names and addresses of persons who provide mediation services.
How can we help and what advantages accrue?
Preparation is the key to success in mediation. Kent Carty can assist with its panel of trained mediators who all have appropriate qualifications from recognised bodies (CEDR and ADR).
The advantages of well-prepared mediation are manifold:
- It speeds up the litigation process and reduces the expense
- It eliminates the uncertainties of litigation.
- It can avoid the break-down of family or business relationships that might result from a confrontational dispute.
- The Courts themselves are always supportive of its role in facilitating speedy resolution and improving access to justice for litigants.
The introduction of the 2017 Act is long overdue and places on a statutory footing the obligation for lawyers to advise clients of the advantages of mediation as an alternative to contentious, costly and fraught Court proceedings. It will be an essential tool for all litigators in achieving an alternative and cost-effective solution leading to an enforceable legal agreement for their clients.
For further information on this subject, contact:
Gavan Carty, Partner