Information for Solicitors

The Mediation Act 2017 is in force since the 1st January and there are some obligations on Solicitors when issuing proceedings. Solicitors must file a Statuary Declaration to the courts stating that this has been done.

In brief solicitors are obliged to provide the client with information about—(i) the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and(ii) the benefits of mediation, names and addresses of persons who provide mediation services. The only exceptions all relate to if there is a safety issue involved otherwise the statuary declaration must be filed. Care must be taken when giving this advice since the Act has several requirements that must be met.

The Mediation Act 2017 sets out at at s.14
14. (1) A practising solicitor shall, prior to issuing proceedings on behalf of a client—
(a) advise the client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings,
(b) provide the client with information in respect of mediation services, including the names and addresses of persons who provide mediation services,
(c) provide the client with information about—
(i) the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and
(ii) the benefits of mediation,
(d) 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
(e) inform the client of the matters referred to in subsections (2) and (3) and sections 10 and 11 .
(2) If a practising solicitor is acting on behalf of a client who intends to institute proceedings, the originating document by which proceedings are instituted shall be accompanied by a statutory declaration made by the solicitor evidencing (if such be the case) that the solicitor has performed the obligations imposed on him or her under subsection (1) in relation to the client and the proceedings to which the declaration relates.
(3) If the originating document referred to in subsection (2) is not accompanied by a statutory declaration made in accordance with that subsection, the court concerned shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the practising solicitor concerned to comply with subsection (1) and provide the court with such declaration or, if the solicitor has already complied with subsection (1), provide the court with such declaration.

There are three exceptions to when this declaration is needed this is proceedings issued under . (a) section 6A, 11 or 11B of the Guardianship of Infants Act 1964 , (b) section 2 of the Judicial Separation and Family Law Reform Act 1989, or (c) section 5 of the Family Law (Divorce) Act 1996

Below is a Draft which you can use as part of your advice to cleints in this regard.

Information required under the Mediation Act 2017 and contact details for Mediators.

Under the Mediation Act 2017, prior to Court proceedings being commenced all Solicitors are obliged to provide their clients with information about Mediation and advise that Mediation may be a suitable solution. Mediation is a way of resolving disputes without going to court. Mediation tends to be far cheaper, faster and less stressful than going to court. Solicitors have to lodge a Declaration with the Court stating that they have given specific information about Mediation to the clients which is in this document. Delays may arise if this has not been done.
Usually a Mediation in practice is a Mediator sitting down with the parties and discussing each issue, making sure everyone is heard, and seeing can a resolution be found. Where necessary the Mediator can speak with or meet each party individually before or after the mediation. In the event that resolution is made usually an agreement is drawn up. Mediation offers flexible solutions. The parties decide what course they wish the mediation to take, the parties choose their own outcomes.
Mediation is a process where an independent Mediator facilitates the parties to come to an agreement using collaborative methods and fair processes. Mediation is considered an interest based resolution as opposed to a rights based resolution. This is because Mediation is designed to help the parties clarify their interests and motivations in a dispute as opposed to just focusing what rights the parties have, which is what the courts do.

The Mediator uses a variety of skills and techniques to help the parties reach a settlement but has no power to make a decision. The parties decide what solution they want.
The mediator will help the clients
• Isolate the disputed issues.
• Discuss the options open to the parties.
• Develop and explore the options and potential consequences for same.
• Deal with any imbalance of power between the parties
• Draft and agreement if one is reached.

Mediation may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk.

Is Mediation Legally Binding?
The mediation agreements can be a binding or legal agreement or a non binding agreement. The parties choose which they would prefer. Then all parties sign the agreement.

How long does a Mediation take?
Usually this takes place over half a day or a day. Some more complicated mediations take days or weeks to complete depending on the issues involved.
Mediation is a voluntarily process, people are not compelled to attend. Mediation is confidential process. Any agreement is confidential too unless the parties agree that it should not be. The Mediator or the participants may withdraw from or suspend the mediation at any time. The Mediator is Impartial and Independent.

Mediators with legal knowledge which are available to Meditate are:

Susan Appelbe
Appelbe Mediation, Frankfield, Douglas, Cork. 0863470732
susanappelbe@appelbe.ie
Her website is 0863470432
Susan practiced for may years as Solicitor however now solely works a s Mediator. Susan provides a Nationwide Mediation service.

Irene Judkins Mediator.
First Floor, 6 Lapps Quay, Cork City, Cork
Telephone: 021 494 3938
Mobile: 0879296120
Email: icjudkins@aol.com
Irene practices as a Solicitor in the UK.

 

 

Below I have set out information from the various Courts.

District Court.

Draft District Court Declaration

SCHEDULE 2

39.03

Declaration as to compliance with section *14 *15 of the Mediation Act 2017

Schedule C

O.39,r.6(2)

District Court Area of District No.

Record number

Between

…………………………………………………………………………………..Claimant

…………………………………………………………………………………..Respondent

STATUTORY DECLARATION AS TO COMPLIANCE WITH SECTION *14 *15 OF THE MEDIATION ACT 2017

I, ……………………………. of ……………………………. , *practising solicitor *practising barrister, aged eighteen years and upwards, do solemnly and sincerely declare that:

1. I act on behalf of ……………………………. of ……………………………. , the *claimant in the above-named proposed proceedings (in this declaration referred to as my “client”).

2. I have advised my client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings.

3. I have provided my client with information in respect of mediation services, including the names and addresses of persons who provide mediation services.

4. I have provided my client with information about—

(i) the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and

(ii) the benefits of mediation.

5. I have advised my client that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of my client and/or their children is at risk.

6. I have informed my client of the matters referred to in sections 10 , 11 and 14 (2) and (3) of the Mediation Act 2017 .

I make this solemn declaration conscientiously believing the same to be true for the purposes of section *14 *15 of the Mediation Act 2017 and by virtue of the Statutory Declarations Act 1938 .

Signed:…………………………………….

Declared before me ………………………………….. [name in capitals] a *(Judge of the District Court) *(commissioner for oaths/practising solicitor) *(peace commissioner) *(notary public) by the said……..

*[who is personally known to me]

*[who is identified to me by ………………………………….. who is personally known to me]

*[whose identity has been established to me before the taking of this Declaration by the production to me of

†passport no……… issued on the…….. day of. ………………………………….. by the authorities of ………………………………….., which is an authority recognised by the Irish Government,

†national identity card no……… issued on the…….. day of ………………………………….. by the authorities of ………………………………….. which is an EU Member State, the Swiss Confederation or a Contracting Party to the EEA Agreement,

†Aliens Passport no. ( ………………………………….. issued on the…….. day of………………………………….. by the authorities of ………………………………….. which is an authority recognised by the Irish Government,

†refugee travel document no……… issued on the…….. day of…….. by the Minister for Justice and Equality,

† travel document (other than refugee travel document) ………………………………….. issued on the…….. day of ………………………………….. by the Minister for Justice and Equality,]

at ………………………………….. this….. day of ………………………………….. 20…….

Signed: …………………………………….

*Judge of the District Court *Commissioner for Oaths / *Practising Solicitor / *Peace Commissioner / *Notary Public

This statutory declaration has been filed with the District Court Clerk at ………. on the ……………………………. day of ………………………… 20………..

*Delete where inapplicable

†Where relevant, provide details of the document by which identity has been established and delete the remaining alternatives.

49B.01

Notice of application to enforce mediation settlement

Schedule C

O.49B, r. 5

District Court Area of District No.

Record number:

†Between

…………………………………………………………………………………..Claimant

…………………………………………………………………………………..Respondent

NOTICE OF APPLICATION

TAKE NOTICE that the above-named claimant will apply to the District Court sitting at ………………………………….. on the…… day of ………………………………….. 20…. at…….. a.m./p.m. (the “return date”) for:

(1) An order under section 11 (3) of the Mediation Act 2017 for the enforcement of the terms of a mediation settlement made on the…… day of ………………………………….. 20…., as between the above-named claimant and the above named respondent *(or as the case may be) which is enforceable between the said parties,

[(2) insert any other order(s) sought, e.g. costs]

Which application is grounded upon the affidavit of ………………………………. sworn on the…… day of ………………………………. 20…., which exhibits the said mediation settlement.

Signed: …………………………………..

*(Solicitor for the) claimant

To: District Court Clerk at …………………………………..

And: ………………………………….. *(Solicitor for the) respondent

of …………………………………..

This notice of application has been filed with the District Court Clerk at ………………………………….. and issued to the above return date on the…… day of ………………………………….. 20….

*delete where inapplicable

 

Circuit Court.

Below I have set out the addition to the Circuit Court Rules pertaing to the new Mediation Act.

 

Circuit Court Rules

Mediation and other alternative dispute resolution processes : S.I. No. 11 of 2018

1. (1) These Rules, which may be cited as the Circuit Court Rules (Mediation) 2018, shall come into operation on the 22nd day of January 2018.

(2) These Rules shall be construed together with the Circuit Court Rules 2001 to 2018.

(3) The Circuit Court Rules 2001 to 2018 as amended by these Rules may be cited as the Circuit Court Rules 2001 to 2018.

2. The Circuit Court Rules are amended:

…

(iii) by the insertion immediately following Order 33 of the Order set out in the Schedule hereto,

…

1. In this Order:

the “2017 Act” means the Mediation Act 2017 (No. 27 of 2017);

each of the expressions “mediation”, “mediation settlement” and “mediator” has the same meaning as in section 2 of the 2017 Act;

“another ADR process” means arbitration, conciliation or such other dispute resolution process as may be approved by the Court, but does not include mediation.

2. An application by a party under section 16(1) of the 2017 Act shall be by notice of motion, on notice to the other party or parties and shall be made within the period mentioned in section 16(4) of the 2017 Act. An application under section 16(4) of the 2017 Act to dispense with the requirement for an affidavit may be made ex parte.

3. (1) The Court may issue an invitation to consider mediation mentioned in section 16(1) of the 2017 Act of its own motion in any civil proceedings to which the 2017 Act applies, on any occasion on which such proceedings are before the Court and where, following an invitation by the Court, the parties decide to engage in mediation, the Court may, having heard the parties, make such orders in accordance with section 16(2) of the 2017 Act as it considers appropriate.

(2) An application by a party to civil proceedings under section 19(1) of the 2017 Act for an order adjourning the proceedings shall be by notice of motion, on notice to the other party or parties, but need not be grounded upon any affidavit.

4. If all of the parties to civil proceedings (including any third parties) agree at a mediation on the terms of an order to be made, including an order for the final disposition of the proceedings, the Court may make the order.

5. (1) An application under section 11(3) of the 2017 Act to enforce the terms of a mediation settlement shall:

(a) where the mediation settlement concerns proceedings pending before the Court, be by notice of motion, or

(b) where there are no proceedings pending before the Court concerning the subject matter of the mediation settlement, be by originating notice of motion,

in either case grounded upon an affidavit sworn by or on behalf of the moving party which shall exhibit and verify the mediation settlement.

(2) Copies of the originating notice of motion or notice of motion, grounding affidavit and any exhibits shall be served on each other party to the mediation settlement and filed not later than 14 days before the date fixed for the hearing of the application.

(3) Each other party to the mediation settlement may serve and file a replying affidavit not later than seven days before the date fixed for the hearing of the application.

6. (1) A mediator’s report required by section 17 of the 2017 Act shall be entitled as in the proceedings to which it relates and shall be submitted to the Court by the filing by the mediator of an affidavit verifying and exhibiting the report.

(2) An application under section 17(2) of the 2017 Act for a direction to dispense with the requirement that a copy of the report be given to the parties at least seven days prior to its submission to the Court may be made ex parte.

7. Every statutory declaration required by section 14(2) or, as the case may be, section 15(2) of the 2017 Act shall be filed in the Office and a copy served on the defendant.

8. Notwithstanding any other provision of these Rules, if proceedings are referred to mediation, the time for taking any step in the proceedings under any of those Rules shall, unless the Court otherwise orders, be calculated as if time did not run during the period of any adjournment to facilitate the mediation.

9. (1) The Court, on the application of any of the parties or of its own motion, may, when it considers it appropriate and having regard to all the circumstances of the case, order that proceedings or any issue therein be adjourned for such time as the Court considers just and convenient and—

(i) invite the parties to use another ADR process to settle or determine the proceedings or issue, or

(ii) where the parties consent, refer the proceedings or issue to such process,

and may, for the purposes of such invitation or reference, invite the parties to attend such information session on the use of another ADR process, if any, as the Court may specify.

(2) Where the parties decide to use another ADR process, the Court may make an order extending the time for compliance by any party with any provision of these Rules or any order of the Court in the proceedings, and may make such further or other orders or give such directions as the Court considers will facilitate the effective use of that process.

10. An application by a party for an order under rule 9 shall be by notice of motion, on notice to the opposing party or parties, or without such motion at any other time when the proceedings are before the Court.

11. Save where the Court for special reason to be recited in the Court’s order allows, an application for an order under rule 9 shall not be made later than 28 days before the date on which the proceedings are first listed for hearing.

12. Where the Court has adjourned proceedings to enable the parties to consider using mediation or another ADR process,

(a) the Court may list the proceedings from time to time for a report as to the extent of progress made in the mediation or other ADR process;

(b) any party may, on notice to the other party, apply for any order made under rule 9 or any consequential order made or direction given to facilitate the use of mediation or another ADR process to be varied or discharged.