The Bill creates a statutory obligation requiring parties to civil litigation to consider mediation; removing any perception that suggesting mediation is a sign of weakness.
Solicitors will be obliged to advise all clients of mediation as an alternative form of dispute resolution. Should a plaintiff elect not to proceed to mediation (and as indicated in our earlier article not all claims are suitable for mediation), the plaintiff's solicitor will have to swear a statutory declaration confirming that the plaintiff has been advised of his/her entitlement to opt for mediation.
The Bill drops the requirement, contained in the Draft General Scheme Bill, for solicitors to provide cost estimates to cover all work involved in getting to trial; this makes sense to avoid duplicating the specific provisions contained in the Legal Services Regulation Act.
If parties agree to mediate, the Bill introduces a requirement to sign an "Agreement to Mediate"; outlining the framework for the mediation. Agreeing to mediate will also pause the time period within which an action must be brought under the Statute of Limitations; minimising any risk that a party is prejudiced by mediating.
Parties who are unable to resolve their disputes through mediation (or disputes that are unsuitable for mediation) can proceed through the Court or other dispute processes as usual.
The Bill still needs to pass through both houses of the Oireachtas. However, its' earlier than expected publication, combined with the public comments of the Minister for Justice and Equality suggest that it will be progressed with reasonable dispatch by this Government and may become law sooner rather than later.