Ireland: The Mediation Act 2017: Well-Intentioned, But Flawed

Introduction

The Mediation Act 2017 (the "Mediation Act") was commenced with effect from 1 January 2018.1

The Act, amongst other things:

  1. imposes obligations on solicitors to provide advice and information prior to instituting proceedings;
  2. provides an ability for courts, either at their own instance or at the request of a party, to invite the parties to consider mediation; and
  3. enables the courts to consider an unreasonable refusal to consider mediation when awarding costs.2

Initiating proceedings

The key immediate effect is that, for most types of proceedings, a practising solicitor, including an in house solicitor, is obliged, before issuing proceedings, to:

  1. advise the client:
    1. to consider mediation as a means of attempting to resolve the dispute;3
    2. that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk;4
  2. provide the client with information about:
    1. mediation services;5
    2. the advantages of resolving the dispute by means other than by way of the proposed proceedings;6 and
    3. the benefits of mediation;7
  3. inform the client:
    1. that the document commencing the proceedings8 must be accompanied by a statutory declaration made by the practising solicitor evidencing that the solicitor has performed the obligations above; 9
    2. that if the originating document is not accompanied by such a declaration, the court will be obliged to adjourn the proceedings to enable such a declaration to be furnished; 10
    3. about the provisions regarding the confidentiality of communications regarding mediation (discussed below);  11 and
    4. about the provisions regarding the enforceability of mediation agreements (discussed below);12  and
  4. make the statutory declaration referred to at 3(a) above.13

Confidentiality of communications

Section 10 of the Act provides:

  1. that, all communications, records and notes relating to mediation are confidential and shall not be disclosed in any proceedings before a court or otherwise except as required for a mediator to provide a report to the court where mediation was initiated at the invitation of the court, or where disclosure is:
    1. necessary in order to implement or enforce a mediation settlement,
    2. necessary to prevent physical or psychological injury to a party;
    3. required by law,  
    4. necessary in the interests of preventing or revealing:
      1. the commission of a crime (including an attempt to commit a crime);
      2. the concealment of a crime, or
      3. a threat to a party;
    5. sought or offered in a civil claim concerning the negligence or misconduct of the mediator occurring during the mediation or a complaint to a professional body concerning such negligence or misconduct; however
  2. evidence introduced into or used in mediation that is otherwise admissible or subject to discovery in proceedings shall not be or become inadmissible or protected by privilege in such proceedings solely because it was introduced into or used in mediation.

It should be carefully noted that Section 19(1) of the Criminal Justice Act, 2011 provides that:

  • "A person shall be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in—
    1. preventing the commission by any other person of a relevant offence, or
    2. securing the apprehension, prosecution or conviction of any other person for a relevant offence,
  • and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána."

The schedule to that Act lists relevant offences, which include a number of offences relating to companies, including, by way of example, a company improperly providing financial assistance for the purchase of its own shares.

Irrespective of whether or not such information in the hands of the lawyers for the parties might be privileged, disclosure in the course of mediation would appear impose a duty on the mediator to make disclosure in accordance with this section. This is a key risk and a clear disadvantage of mediation in disputes which contain an element of alleged fraud or improper conduct.

Enforceability of mediation agreements

The Act defines a "mediation settlement" as

"an agreement in writing reached by the parties to a dispute during the course of a mediation and signed by the parties and the mediator".

Section 11 of the Act provides:

       
"(1) The parties shall determine—
(a) if and when a mediation settlement has been reached between them, and
(b) whether the mediation settlement is to be enforceable between them.
(2) Notwithstanding subsection (1) and subject to subsection (3), a mediation settlement shall have effect as a contract between the parties to the settlement except where it is expressly stated to have no legal force until it is incorporated into a formal legal agreement or contract to be signed by the parties.
(3) Without prejudice to sections 8 and 8A (inserted by section 20 of the Status of Children Act 1987 ) of the Family Law (Maintenance of Spouses and Children) Act 1976 and subject to subsection (4), a court may, on the application of one or more parties to a mediation settlement, enforce its terms except where the court is satisfied that—
(a) the mediation settlement —
(i) does not adequately protect the rights and entitlements of the parties and their dependents (if any),
(ii) is not based on full and mutual disclosure of assets, or
(iii) is otherwise contrary to public policy,
or  
(b) a party to the mediation settlement has been overborne or unduly influenced by any other party in reaching the mediation settlement.
(4) Where a mediation settlement relates to a child, a court, in determining any application with regard to the mediation settlement, shall be bound by section 3 (amended by section 45 of the Children and Family Relationships Act 2015 ) of the Guardianship of Infants Act 1964 ." [emphasis added]

It appears that an error was made in drafting this section. In particular, "full and mutual disclosure of assets" was suggested by the Law Reform Commission as a provision that should apply to family law mediations. The section of the Act applies this to all mediation settlements.  

There is no principled basis on which a commercial party should need to make disclosure of its, or his or her, assets to another party in order to settle a dispute. For instance, a lender, creditor, or insolvency practitioner should not need to make disclosure of its, or his or her, assets to a debtor in order to make a settlement agreement binding and enforceable. It is very unlikely that such disclosure would ever be made.

However, it appears that settlement agreements executed by the parties, but not the mediator, would fall outside of the definition of mediation settlement in section 2 of the Act and they should then be enforceable as a simple contract.

Comment

Mediation is a very useful tool in dispute resolution and is routinely advised by lawyers to clients. 

However, while the cosmetic and political attraction of having a mediation act is acknowledged, the central thesis that, without it, lawyers would not properly advise their clients is inherently objectionable. More objectionable however, is the ham-fisted implementation of certain provisions, for example requiring a corporate party to a mundane commercial dispute to be told that mediation may not be appropriate if its children are at risk!

The requirement for a solicitor in all cases to advise a client in a particular and prescribed manner which may not reflect the reality of the dispute and to make a statutory declaration before initiating proceedings, will likely result in pro forma compliance, delay and additional costs.

Separately, the unfortunate application of mutual disclosure of assets to all mediation settlements would appear to render such settlements unusable by most commercial parties.  

It remains to be seen if any societal benefit will flow from this well-intentioned, but flawed, legislation.

Footnotes

1 S.I. 591 of 2017 made on 8 December but published on 26 December 2017.

2 S 21.

3 S 14(1)(a).

4 S 14(1)(d)

5 S 14(1)(b).

6 S14(1)(c)(i).

7 S 14(1)(c)(ii).

8 Summons, claim notice, originating notice of motion etc.

9 S 14(1)(e) and S 14(2).

10 S 14(1)(e) and S 14(3).

11 S 14(1)(e) and S 10.

12 S 14(1)(e) and S 11.

13 S 14(2).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
23 Jan 2018, Business Breakfast, Dublin, Ireland

We are pleased to sponsor a Dublin Chamber of Commerce breakfast briefing at 8am on Tuesday 23 January at our offices at South Bank House, Barrow Street, with Vanessa Tierney of Abodoo.

 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions