Practical implications of the Mediation Act 2017 for family lawyers

Keith Walsh, chair of the Child and Family Law Committee of the Law Society examines how the new Mediation Act 2017 which was commenced on the 1st January 2018 will affect family law practice and procedure.

The newly commenced Mediation Act 2017 is to be welcomed by family lawyers as it will encourage all those involved in the resolution of legal separation, divorce and private child law disputes to seriously consider mediation as an alternative to court. While the Act only contains 26 sections, it contains a number of changes which came into effect from the 22nd January 2018 and are immediately relevant to family law practice and procedure especially in the Circuit Family Court. First we briefly examine the Mediation Act, then we will look at the provisions which only apply to family law matters before finishing with other provisions which are relevant to family law.

The Mediation Act

Definition of Mediation and Mediator

Mediation is defined in section 2 as ‘a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute’

 A mediator is described as ‘a person appointed under an agreement to mediate to assist the parties to the agreement to reach a mutually acceptable agreement to resolve the dispute the subject of the agreement.’

What are the objectives of the Mediation Act ?

The Mediation Act is intended to:

facilitate the settlement of disputes by mediation
specify the principles applicable to mediation
specify arrangements for mediation as an alternative to the institution of civil proceedings or to the continuation of civil proceedings that have been instituted;
provide for codes of practice to which mediators may subscribe;
provide for the recognition of a body as the Mediation Council of Ireland for the purposes of the Act and to require that Council to make reports to the Minister for Justice and Equality as regards mediation in the State;
provide, by means of a scheme, an opportunity for parties to family law proceedings or proceedings under section 67A(3) or 117 of the Succession Act 1965 to attend mediation information sessions;
amend the Guardianship of Infants Act 1964 , the Judicial Separation and Family Law Reform Act 1989 and the Family Law (Divorce) Act 1996 ; and to provide for related matters.

The Mediation Act contains principles in relation to the mediation process, agreements to mediate and the role of the mediator. Codes of practice for the conduct of mediations to include the conduct of mediators must be published by the Minister ‘as soon as practicable’ and following submissions by interested parties. A Mediation Council may be set up by Minister.

Although not specified as one of the objectives of the Act in the long title, one of the most practical effects of the Mediation Act is to increase the obligation on solicitors to inform clients about mediation prior to the issue of civil proceedings.

Provisions of the Mediation Act which relate specifically to family law

The Mediation Act and the new Rules of Court increase safeguards to ensure those intending to issue proceedings pursuant to the Judicial Separation and Family Law Reform Act 1989, the Family Law (Divorce) Act, 1996 and the Guardianship of Infants Act, 1964 are aware of alternatives to going to Court

Solicitors in family law cases must now give more information about mediation to clients before starting the above cases. In addition greater proof of compliance with these duties is required by the Courts following the introduction of the new Rules of Court in relation to mediation which came into effect in the District, Circuit and High Court as and from the 22nd January 2018.

The additional information that must be supplied by solicitors relates to the confidentiality of mediation agreements and their enforceability pursuant to section 10 and 11 of the Mediation Act.  

The level of proof of compliance by solicitors is increased from the solicitor having to provide a certificate of compliance with sections 5 and 6 of the Family Law Reform Act 1989 or sections 6 and 7 of the Family Law (Divorce) Act 1996 and section 20 and 21 of the Guardianship of Infants Act with the obligation of now having to make a statutory declaration to this effect. It is likely that both these measures will increase the numbers of people using mediation as an alternative to court and is to be welcomed.

The new Circuit and High Court Rules contain new Family Law Statutory Declaration forms and these Statutory Declarations have replaced the old Section 5/6/7 Certificates for Judicial Separation and Divorce for proceedings issued as and from 22nd January 2018. Family lawyers will need to replace their section 5,6,7 Certificates with the new Statutory Declarations as set out in the rules of court. Information sessions on mediation for family law and succession act matters may be introduced by the Minister pursuant to section 23 of the Mediation Act as part of a scheme following public consultation. Prior to the enactment of this legislation there was some discussion about requiring mandatory attendance at information sessions on mediation by intending litigants prior to issue of court proceedings in family law matters but this was not included in the Mediation Bill or the Act as passed by the Oireachtas.

Other provisions of the Act which are relevant to family lawyers

Other elements of the Mediation Act which will impact on family lawyers but which are not exclusive to the area of family law include:

greater role for the courts in directing mediation either on application of one of the parties or on its own intiative, any such applications by one of the parties to be made by notice of motion not more than 14 days before the hearing date, section 16(4)
where the court directs mediation, it may order a mediator to produce a report for the court which would state if mediation did not take place, why it did not take place, details of any mediation agreement reached and if some agreement reached, the terms of that agreement. Any report must be given to the parties at least 7 days before it is lodged in the court by the mediator.
Section 20 states in relation to mediation fees, that unless otherwise ordered by the court or otherwise agreed, the costs of mediation will be paid equally by the parties and ‘the fees and costs of a mediation shall be reasonable and proportionate to the importance and complexity of the issues at stake and to the amount of work carried out by the mediator’.
In awarding costs in relation to proceedings where an application was made to direct mediation, a court may, where it considers it just have regard to any unreasonable refusal or failure by a party to the proceedings to consider using mediation and any unreasonable refusal or failure by a party to attend mediation following an invitation to do so pursuant to section 16(1). 

While the Mediation Act has been a long time coming, it was hoped that there would be a more formal system of regulation of mediators contained in the Act. However this new Act is a good start to encouraging mediation of disputes and it is to be hoped that it will result in earlier and most cost effective resolution of judicial separation, divorce and private child law cases in the coming years.

Keith Walsh is a Dublin solicitor practising primarily in the area of family law and family disputes, chairman of the Child and Family Law Committee of the Law Society and is a qualified mediator and collaborative lawyer.