The Mediation Act 2017 was signed into law on 2 October 2017 and is expected to come into force in the coming weeks. The Act applies to all litigation disputes apart from arbitration and certain disputes under tax and customs legislation.
In summary, what will the Act do?
The Act encourages the use of mediation which has the potential to:
achieve better outcomes for the parties
reduce costs and therefore improve access to justice
ease strain on the courts system
What is mediation?
Mediation is a collaborative process which provides the opportunity to resolve disputes by negotiation and agreement, using the assistance of a mediator who is a neutral party.
Why the Act is welcome?
The Act preserves the essence of mediation: voluntary, collaborative agreement where the parties control the process. Mediation has been successfully used for dispute resolution for many years in Ireland but the Act reinforces and supports the process. Although not all disputes are amenable to mediation, the Act encourages parties to resolve their difficulties without having to go through an expensive trial process.
What is the role of the mediator?
A mediator must act in an impartial, facilitative manner to assist the parties to resolve their dispute. The Act requires the mediator to furnish the parties with their experience and qualifications prior to the mediation and to ensure that no conflicts of interest exist. The outcome of mediation must be determined by the parties, rather than the mediator; although the mediator may make proposals for resolution of the dispute when requested to do so by all parties.
The Act will likely increase the number of mediations, leading to a greater need for mediators; particularly those with specialist expertise. Complex financial disputes involving corporations and multi-nationals may benefit from mediators with experience of business valuations and the application of technical accounting standards. Knowledge of business and commercial common sense will also be key attributes. Experienced accountants have many of these attributes and may well be interested in becoming accredited mediators.
What is the role of experts in mediation?
The expected increase in numbers of mediations is likely to mean that the parties need professional or expert advice, including financial expertise, at an earlier stage in the dispute process. This will ensure that parties are in a position to fully consider the financial and taxation ramifications of any settlement proposal.