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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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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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