NEW JUSTICE FOR A NEW IRELAND – the mediation imperative

new ireland

NEW JUSTICE FOR A NEW IRELAND – the mediation imperative

Oliver J Connolly, July 2015

 

Increasing political, legislative and judicial Support

 

Recent developments would indicate that the Irish Government now appears determined to accelerate delivery on the commitments of its legislative programme in introducing legislation which promotes mediation and the early resolution of disputes. An increasingly supportive legislative and judicial framework now marks mediation as a mainstream process in the resolution of Irish civil and commercial disputes:

  • The Personal Insolvency Act 2012 has already created an out-of-court, alternative dispute resolution (ADR), mechanism for individual debtors and their creditors (and where, of course, mediation skills are of particular relevance in the negotiation and restructuring of loans and other debt).

 

  • The Workplace Relations Act 2015, highly supportive of mediation and almost certainly the most significant development in Irish employment law in a generation, was signed into law by Minister for Jobs, Enterprise & Innovation (Deputy Richard Bruton) on Wednesday 20th May 2015 and is operative from October 1st2015;

 

  • In early July the enactment of the Mediation Bill has been signalled for perhaps Q4 2015 and/or Q1 2016? “I intend to proceed quickly with enactment of the Bill following its publication later this year”, Minister for Justice and Equality (Deputy Frances Fitzgerald)at the launch of the annual report of the Free Legal Advice Centres [FLAC] on Monday 6th July 2015; and,

 

  • Only last week, on Sunday 26th July on RTE Radio One’s Marian Finucane show, the Minister for Health (Deputy Leo Varadkar) intimated that the Government is considering the introduction of a “totally non-adversarial system” for obstetric and other medical injuries cases (and which, if modelled on international best practice, would likely include early neutral evaluation and mediation within its make-up).

 

Recent ‘head-line’ reports in the Irish media (i.e., Quinn family & IBRC, Croke Park & local residents, Drogheda Print Company & Equal Status Act complaint, Waterford Crystal & their Ex-Employees, HSE matters & others) also indicate that the use of mediation is becoming increasingly more prominent in Ireland. However, it is the assurance by Minister Frances Fitzgerald that the passage of the Mediation Bill is now imminent which indicates that a new paradigm for dispute resolution in Ireland beckons.

 

The Mediation Bill – (Q4 2015/Q1 2016)

 

The Bill has the potential to place Ireland as one of the most progressive jurisdictions worldwide within which to resolve differences – we have come a long way I might hear you say? Adjournment of litigation proceedings for participation in mediation has been in existence for some time pursuant to the introduction of Orders 56A and 63A of the Rules of the Superior Courts (i.e., when directed by the court where the court itself considers mediation to have a reasonable prospect of success or upon a mediation request to the court from either party). The Mediation Bill will go much further, placing mediation on an equal footing with litigation and enhancing access to justice for the State, businesses and citizens. I believe that there are, inter alia, six critically important concepts:—

  • Firstly, the Bill will impose an obligation on both solicitors and barristers, to advise their clients of the mediation alternative prior to the issuance of court proceedings and certify that they have done so (which the courts are to scrutinise).
  • Secondly, the Bill will allow parties, by agreement, to stay the statute of limitations whilst they attempt mediation. No longer will one have to issue court proceedings to avoid a claim being statute-barred.
  • Thirdly, the Bill will provide for enforceability and allow the parties to make a written agreement arising out of mediation an order of court through an expedited process (to the Master’s Court and/or Circuit Court).
  • Fourthly, the Bill will provide for confidentiality of the process and an accompanying specific confidentiality privilege for those involved in the mediation. Nothing said or delivered, arising out of or in connection with the mediation process, may be reported publicly or entered into evidence in legal proceedings.
  • Fifthly, the cost of mediation must be reasonable and proportionate and can (and usually is) shared among the parties.
  • Sixthly, if any party to a mediation clause in an underlying contract commences any proceedings in any court against any other party to such clause, that other party may apply to the court in those proceedings to stop the proceedings and the court shall so order (except in very limited circumstances).

 

Judicial Support

 

One need look no further than the Supreme Court Judgment of Mr. Justice John MacMenamin in Fitzpatrick and The Board of Management of St. Mary’s Touraneena National School & the Minister for Education and Science [2013] IESC 62:

“Why was there no mediation process? … Was one party or the other acting unreasonably? Should one or the other party have taken the initiative? These are legitimate questions … for a satisfactory resolution, it will often be necessary to ensure that a resolution process commences before the parties engage in litigation. Once the lawyer’s letters are written, once the affidavits are sworn, a position which might be retrievable often becomes irreparable … Many common law jurisdictions have espoused ADR or mediation as being an entirely necessary adjunct to the legal process. Some suggest the process, when availed of, must always be voluntary. I do not agree; there may be cases where such a process should be mandatory. But it must be fair. The fact that there may be a penalty of costs for failure to engage in such a process is not, I think, sufficient argument against it, especially when court lists become lengthy and litigation costs become significant …”

This legislative and judicial support may be considered truly radical in that it promotes and introduces an integrated system of justice, providing an ‘out of court’ alternative and additional access to justice in everyday life for Irish citizens and businesses. An outcome in mediation can never be compelled and so access to the courts is never denied, but most often the parties do achieve an outcome and binding legal finality in mediation. I believe that we are now clearly witnessing the beginnings of a comprehensive policy where alternative dispute resolution (ADR), particularly mediation, is introduced across all three pillars of government – courts, legislature and the executive (including throughout the public sector). Of course such an approach enjoys the broadest political support, is consistent with international best practice and the EU Mediation Directive (transposed into Irish law in July 2011) and, in the end, it is Irish citizens, businesses, society and the legal system itself that will benefit from enhanced access to justice.

 

Quite apart from the many benefits to citizens and businesses, these reforms also offer the real possibility of critically important cost savings to the State and are entirely consistent with ‘a New Justice for a New Ireland’ now emerging.

 

Oliver J Connolly

 

Director of Friarylaw ADR

[Mr Connolly is an Accredited Mediator who has practiced as a Barrister in Ireland (and England) and as an Attorney in New York (& is admitted to the Bar of the US Supreme Court)]

Oliver lectures on Friarylaw ADR’s Civil & Commercial Mediation training programmes. For more information about Friarylaw ADR training programmes feel free to email us: admin@thefriary.ie

 

 

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