Does the Irish Mediation Act help pave the way for compulsory mediation here?
In October this year the Mediation Act 2017 was enacted in Ireland and it brought compulsory mediation a step closer. The aim of the Act was to promote mediation as a viable, effective and efficient alternative to court proceedings. It set out the procedure to be followed and the factors to be considered.
But why should mediation be made compulsory? What are the advantages from the Irish Bill that could work over here?
Mediation offers a number of benefits, which I have seen first-hand. Some of these can be summarised as follows:
- Reduced costs. If parties are able to settle in mediation, then they can avoid a costly court battle.
- Reduced stress Increased speed. Court cases are not only time consuming, but stressful too. Coming to a collaborative solution can considerably reduce the stress involved and bring a quicker resolution.
- Reduced pressure on our legal system. There is already a considerable backlog of cases in our courts. Resolving cases in mediation would mean less cases for courts to preside over.
- A creative solution that can work for everyone. In court, there can only be one winner and the court can only give judgment based on the pleadings and evidence before it. In mediation, conflict resolution strategies can be used to create a more creative solution that works for everyone.
- Preserving ongoing relationships. In mediation those involved are encouraged to put personal feelings aside and prioritise resolution. A skilled mediator can facilitate parties to find ways to understand all points of view and repair an ongoing relationship.
- Reflecting reality. In family law cases it is already necessary to have a MIAM (Mediation Information Assessment Meeting) before issuing proceedings. In construction cases, the pre-action protocol requires a meeting between the parties before issuing proceedings. More parties are mediating before issuing proceedings, to save the issue fee. There are strong arguments that along with many more judicial directions for mediation, it can be argued that mediation is already compulsory in all but name.
Are there any drawbacks or situations where mediation doesn’t work?
- A voluntary option. Some people argue that a strength of mediation is its current voluntary nature. Parties can agree or disagree to mediate and if they wish, they can walk away at any time.
- Increased distress. In some cases, it could be argued that parties are simply too far apart for mediation, or that going through mediation would further add to the distress already caused.
- Increased time and cost. Making mediation compulsory could simply prolong the legal process by adding another layer of cost and time.
The Irish Mediation Act introduced an obligation on solicitors and barristers to advise parties in disputes to consider utilising mediation as a means of resolving them and, where court proceedings are launched, requires parties to confirm to the court that they have been so advised and have considered using mediation as a means of resolving the dispute. This places mediation as a key step in any legal proceeding. The Act also impose costs sanctions on parties for failing unreasonably to engage in mediation.
It will be interesting to see if a similar Bill is proposed in the UK, after the recent Civil Justice Council Report. As an initial step the Civil Mediation Council has submitted a response to the Civil Justice Council Report, making the case for an Automatic Referral to Mediation. This would be in place of “Compulsory Mediation”