Impact of the Mediation Act 2017 on litigation

The Mediation Act 2017 (the “Act”) came into force on 1 January 2018 and for “practising solicitors”, carries a legal obligation to provide advice on the use of mediation to their clients before issuing civil litigation proceedings.

Mediation is a voluntary, collaborative form of alternative dispute resolution and when successful, is more cost and time efficient compared to traditional Court based civil litigation.

Section 6 (2) of the Act preserves the voluntary aspect of mediation stating “Participation​ in mediation shall be voluntary at all times.”​

Solicitor’s Obligation

Under Section 14 of the Act, practising solicitors are legally obligated to provide advice on the use of mediation to their clients before issuing proceedings. Section 14 of the Act states a practising solicitor shall take the following steps before issuing proceedings:-

  1. Advise the client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings;
  1. Provide the client with information in respect of mediation services, including the names and addresses of persons who provide mediation services;
  1. Provide the client with information about:-
    • the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and
    • the benefits of mediation
  1. Advise the client 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, and
  2. Inform the client of:-
    • the solicitor’s duty to make a statutory declaration evidencing (if such be the case) that the solicitor has performed the aforementioned obligations and that if the originating

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document is not accompanied by this statutory declaration, the court shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the solicitor to comply with subsection 14(1) and provide the necessary declaration,

  • the provisions as to the confidentiality of mediations set out in section 10, and
  • the provisions as to the enforceability of mediation settlements set out in section 11

Cost Implications

The Courts may take the following into consideration when awarding costs:-

  1. Any unreasonable refusal by a party to consider using mediation;
  1. Where advice on mediation is not given;
  1. Where a solicitor does not provide a statutory declaration on the issuing of proceedings.

Conclusion

Practising Solicitors are legally obliged to fully advise their clients on the use of mediation before issuing civil litigation proceedings and where there is unreasonable refusal to mediate or advice to mediate is not provided, the Courts may take this into consideration when awarding costs.

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