The Mediation Act, 2017-What You Need to Know

mediation act 2017

The Mediation Act, 2017 came into law in Ireland in January, 2018. The purpose of this legislation is to allow parties to a dispute to avoid the costs of litigation and to reduce the number of disputes coming before the Courts.

Mediation is a collaborative process which aims to encourage the parties to a dispute to arrive at their own solution, with the professional assistance of the mediator. The mediator is to facilitate the parties and provide his/her professional expertise and experience but the determination of the dispute is up to the parties themselves.

The mediator can make proposals to resolve the dispute when the parties request this. There may also be a need for experts in a mediation if the issues are complex-for example a financial dispute with taxation implications.

It will have significant implications for solicitors in their daily practice of advising clients, and for clients who wish to institute litigation proceedings.

Before commencing legal proceedings on behalf of a client a solicitor will have to swear a statutory declaration that

  1. He/she has advised the client of the availability of mediation as a way to settle the dispute
  2. Give the client information about the benefits of using mediation, as opposed to instituting legal proceedings
  3. Give the client names and addresses of mediators who may be able to assist in resolving the issues between the parties
  4. Tell the client that mediation is voluntary and may not be appropriate where the safety of the client is at risk or where there is children and their welfare/health/safety is at risk
  5. Advise the client of the need for confidentiality in a mediation and the enforceability of a mediated agreement
  6. Advise the client of the solicitor’s obligation to provide a statutory declaration confirming the provision of the information above to the client

The statutory declaration should accompany whatever document is used to commence legal proceedings. If this does not occur the Court can adjourn proceedings until such time as the solicitor has provided the Court with the statutory declaration.

The Mediation Act, 2017 will not apply to certain proceedings, for example High Court judicial review proceedings and an arbitration under the Arbitration Act, 2010. The full scope of the act is set out in section 3, Mediation Act, 2017.

A court will be allowed to take into account when awarding costs any party’s unreasonable refusal or failure to use mediation.

Part 2 of the Act sets out the provisions re mediation generally including the role of the mediator, codes of practice, and the enforceability of settlement agreements arrived at through mediation.

Part 3 sets out the obligations of solicitors and barristers with respect to mediation and Part 4 sets out the role of the Court.

Section 19, Mediation Act, 2017 is an interesting one as it allows a Court to adjourn court proceedings to facilitate mediation:

19. (1) Where—

(a) parties have entered into an agreement to mediate, and

(b) one or more of the parties referred to in paragraph (a) commences proceedings in respect of the dispute the subject of the agreement to mediate,

a party to the proceedings may, at any time after an appearance has been entered and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to adjourn the proceedings.

(2) On application to it being made under subsection (1), the court shall make an order adjourning such proceedings if it is satisfied that—

(a) there is not sufficient reason why the dispute in respect of which the proceedings have been commenced should not be dealt with in accordance with the agreement to mediate, and

(b) the applicant party was at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary for the proper implementation of the agreement to mediate.

(3) This section is in addition to and not in substitution for any power of a court to adjourn proceedings before it.

Some commentators have advanced the opinion that an employer, with an employment contract containing a clause agreeing to mediation in the even of a dispute, can have Court proceedings adjourned pursuant to section 19. It is too early to say how a Court will view this argument but it is probably advisable for an employer to have such a clause in his contract of employment as he has nothing to lose in doing so.

Section 16 provides for a court inviting the parties to engage in mediation and section 17 provides for the mediator to provide a report to the Court to explain why the parties have not so engaged or to explain why the mediation has failed and they wish to re-enter legal proceedings.

Conclusion

The Mediation Act, 2017 is to be welcomed as it should allow more parties in dispute resolve their issues without the cost of going to full blown legal proceedings including a Court trial.

And if you are an employer it cannot do you any harm to insert a clause in your contract of employment providing for the use of mediation before instituting legal proceedings.

The Art of Mediation in Employment Disputes

 

 

workplace mediation

Is mediation “woo woo”?

Does it involve the parties holding hands and singing “Kumbaya”?

Has it a real contribution to make to resolve employment disputes?

Let’s take a look.

What is mediation?

What is mediation? When is it appropriate? What are the advantages of using it?

Mediation is a form of alternative dispute resolution, often used in employment disputes.

Mediation allows parties in dispute to see whether they can find an informal solution to their difference(s) through a third party-a mediator.

It is commonly used for personality clashes, or disputes over performance. It can also be useful in relation to allegations of bullying, harassment, miscommunication, relationship breakdown, and misunderstandings of rights/obligations.

It is a voluntary process which must be agreeable to both parties if it is to succeed.

The idea is that the parties themselves arrive at their own solution, with the assistance of the mediator. It prevents the referral of disputes to bodies such as the Workplace Relations Commission or the Civil Courts.

The role of the mediator is to facilitate a solution between the parties, not to impose one.

It is not binding on the parties until an agreement has been reached as to how to solve the problem which has arisen. Either party can walk away until agreement has been reached.

The advantages of workplace mediation

  • It is informal
  • Both parties get to have their say
  • It is inexpensive, compared to litigation or a claim to a body like the Workplace Relations Commission (WRC) or Labour Court, with the costs of the mediation more likely to be certain and clear at the outset
  • The parties arrive at their own solution, with the help of a mediator
  • It can be much faster than waiting for a day in Court, or some other tribunal such as the WRC and the early addressing of problems can prevent issues from festering and getting worse, making the ultimate solution more difficult.

WRC Mediation Service

The Workplace Relations Commission offer a mediation service, called the Early Resolution Service.

If both parties are agreeable, this form of mediation may be offered to the parties. The process is carried out over the phone by a WRC employee-a Mediation Officer-or in a face to face meeting, depending on the availability of resources.

This mediation facility is provided for in section 39 of the Workplace Relations Act, 2015, and the purpose is to attempt to resolve the dispute without the matter going to adjudication.

The general principles of this service include

  • It is voluntary and both parties must be agreeable
  • A party can withdraw at any stage
  • It is confidential
  • The mediator is impartial and it is the parties themselves who arrive at their own agreement
  • Both parties must have their say
  • It is flexible
  • It should be non judgmental
  • It should be non adversarial

All records and notes as a result of the mediation process are confidential and cannot be used in subsequent proceedings or claims with one exception: where the parties have agreed terms to resolve their differences any subsequent dispute in relation to those terms can see the notes/records used to resolve that particular dispute.

If agreement is reached under a Mediation Officer as part of a WRC mediation the terms of agreement are recorded by the Mediation Officer and a record will be kept by the WRC and given to both parties. Any subsequent breach of the terms is actionable in Court as a breach of contract.

If the dispute is not resolved by mediation it can then be referred to a WRC Adjudication Officer for adjudication.

The stages of mediation

Mediation will generally have the following stages:

  1. Both parties will meet the mediator alone to discuss their ideal outcome of the mediation
  2. A meeting with the parties will then take place to hear the issues from the perspective of both parties
  3. A context is placed on the issues
  4. The issues are explored and, hopefully, an agreement can be drawn up reflecting the solution which has been agreed between the parties
  5. The outcome of the agreement is explained to both parties and a copy of the signed mediated agreement is given to both parties.

When mediation is inappropriate

There are a number of situations where mediation may be inappropriate:

  1. It should not be used as a first resort as people should be encouraged to speak to one another and resolve their differences at the earliest juncture
  2. It should not be used by management as a way to avoid taking decisions, and managing
  3. If adjudication is needed, for example if there is a question about some behaviour or action being unlawful
  4. If the party who is alleging harassment or discrimination wants it investigated and adjudicated
  5. One of the parties is completely intransigent and using mediation will raise unrealistic expectations of a resolution
  6. The parties do not have the power to settle the matter.

A word of caution for employers: be careful that you do not put employees through a mediation process which will make matters worse, and perhaps ultimately come back to your door in the form of a claim.

Mediation agreement

An employment mediation agreement should be signed by the parties before the mediation commences, which indicates the parties willingness to engage in mediation to try to resolve their differences.

This will contain

  • The parties
  • An authority and status clause dealing with the parties and the mediator
  • A confidentiality and without prejudice status of mediation clause
  • A settlement formalities clause
  • A clause dealing with the costs of the mediation
  • A clause dealing with the legal status and effect of the mediation
  • The applicable law (which jurisdiction)
  • A signing page for both parties and the mediator

Conclusion

Mediation has an important role to play in the resolution of employment disputes, but is not always appropriate.

A skilled, experienced mediator can have a huge impact on the ultimate success or failure of the mediation.