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The Minister for Justice and Equality has recently published details of a proposed Mediation Bill. The general objective of the proposed Bill is to promote mediation as a mainstream alternative to court litigation, thereby reducing legal costs and speeding up the resolution of disputes.
The proposed Bill, if implemented, requires the parties to dispute and their legal advisors to focus their minds at an early stage on the cost and time benefits of mediation and the potential to resolve the dispute. This would be a welcome development, particularly for insurers, as it should result in earlier engagement by the parties and less settlements 'at the door of the court'. Insurers should, however, consider the current mediation clauses in their contracts and the extent to which these clauses may need to be amended.
The key elements of the proposed Bill are as follows:
- the imposition of a statutory requirement on solicitors and barristers to inform their clients about the possibility of using mediation as an alternative means of resolving disputes prior to commencing court proceedings;
- a requirement that all communications between parties as they try to resolve a dispute using mediation shall be confidential;
- it will remain for the parties themselves to decide whether to engage in mediation and, indeed, to decide on the enforceability of any agreement arising from the mediation;
- the provision of a statutory basis for the courts to invite parties to consider the mediation option and to adjourn court proceedings for the duration of the process;
- the provision for the introduction of codes of practice for the conduct of mediation by qualified mediators;
- the imposition of costs against a party who a Court considers unreasonably refused to attend a mediation where the Court is of the view that the mediation process had a reasonable prospect of success; and
- the provision that the costs of mediation must be reasonable and proportionate and not linked to the outcome of the process.
The proposed Bill is currently under consideration by the Joint Oireachtas Committee for Justice, Defence and Equality. The text of the proposed Bill is available here.
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