Mediation Act 2017

The long-awaited Mediation Act 2017 was signed into law on 2 October 2017 by the President.

The Act’s underlying objective is to promote mediation as a viable, effective and efficient alternative to court proceedings. The role of mediation should result in reduced legal costs, faster resolution of disputes and a reduction in the stress and acrimony that can sometimes accompany court proceedings. The Act now places on a statutory footing the obligation to consider mediation and requires litigants to confirm to the Courts that they have considered mediation.

Sections 14 of the Act is a key provision. Section 14 requires practicing solicitors to advise clients to consider mediation as an alternative to court proceedings. For this purpose, they must provide clients with information on mediation services, including details of mediators, information about the advantages and benefits of mediation, and information on confidentiality obligations and the enforceability of mediation settlements.

Where court proceedings are instituted on behalf of a client, the application must be accompanied by a statutory declaration made by the solicitor confirming that these obligations have been discharged in relation to the client and the proceedings to which the declaration relates. If the declaration is not submitted, the court will adjourn the proceedings until the solicitor complies with the requirements. The declaration will need to accompany the initiating proceedings being filed with the court.

The Act also provides that confidentiality of the mediation process enjoys statutory protection. Section 10 of the Act provides that all communications (including oral statements) and all records and notes relating to the mediation full confidentiality. Any such statements or records provided for the purposes of mediation will not be disclosed in any proceedings before a Court. The wide scope of this protection should allay concerns about sensitive information being disclosed to the wider public. It may also lead to cases of a confidential nature concluding at the mediation stage where parties may not want details of a sensitive nature being heard in open court.