01 December 2017
At first glance, Ireland's new Mediation Act, 2017, which came into force at the start of this year, seems to do little more than require Irish lawyers to explain mediation and its advantages to clients before commencing legal proceedings. All claimant lawyers must now file with their court process a Statutory Declaration that they have done so.
And if they don’t? Then the court can refuse to let the matter go forward until the Declaration has been filed. As a means of promoting ADR, this seems unlikely to have much impact – no doubt a standard form Statutory Declaration is already on every Dublin law firm’s precedent suite, and the Declaration will become just another piece of the paper-work lawyers everywhere have to wade through.
So far, the new law looks like just another gesture towards the obvious utility and common-sense of managing one’s dispute risks though the mediation process. Unfortunately, the Act isn’t just disappointing, it arguably sets back the cause of mediation in Ireland.
Firstly, mediation itself is narrowly defined at section 3 as a “facilitative” process – no room for different styles, such as evaluative which is growing in popularity in the UK. (Note that the EU’s own directive on mediation is careful not to use restrictive language in its definition of mediation).
Secondly, at section 9(2), the Act seeks to establish rules for procedure in mediation, and compensation from mediators “in the event of dissatisfaction with the conduct of the mediator”, opening the door to secondary litigation around the mediation process.
Thirdly, mediation will no longer simply produce a contractual agreement, enforceable on the same basis as any other contract. By section 11(3), a mediation settlement agreement will not be enforced if the court considers that it does not “adequately protect the rights and entitlements of the parties (or) is not based on full and mutual disclosure of assets”. This will encourage parties to have second thoughts. It will lead to challenges to the validity of the deal and drag the courts back into the process.
It is often said that closure is one of the benefits of mediating a deal – but this new legislation arguably undermines closure, increases mediators’ risks, and restricts their freedom to act.