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- Developments

The Mediation Act 2017 came into effect as of 1st January 2018

The Mediation Act 2017 came into effect as of 1st January 2018. The prime objective of the Act is to promote mediation as an effective and efficient alternative to court proceedings and thereby alleviating the high costs associated with court litigation.
The Act places a requirement on solicitors to provide their clients with information on mediation services and inform them of the advantages and benefits of mediation. This is reinforced in the Act by requiring that where a solicitor issues court proceedings on behalf of their client that the application for same must be accompanied by a statutory declaration confirming that they have complied with said obligations in relation to their client and the proceedings to which it relates.

The Act will not have any impact on disputes being mediated or investigated by the Work Relations Commission (“WRC”). The Act will however have a significant effect on non-WRC claims such as bullying/stress as the claimant will have to be informed and consider the process of mediation before lodging any court proceedings with their solicitor signing a statutory declaration to that effect.

The Act is likely to have a significant effect on injunction strategy as the Act provides parties with the opportunity to adjourn proceedings at any time if there is a pre-existing mediation agreement in place. Employers are likely to include a mediation clause in future employment contracts so as to avail of this. This may severely affect the element of surprise in injunction cases and could inevitably completely undermine the proceedings.

The legislation also makes it clear that participation in mediation is to be voluntary and another person, such as a legal representative, can accompany the parties involved. The court can also suggest mediation or provide parties with information of the benefits of mediation during court proceedings and specifies that even where legal proceedings have already issued the parties can initiate mediation at any time prior to the resolution of the dispute. It is also worth noting that the court have the discretion where they feel it just to do so, to award costs against any party who unreasonably refuses to attend mediation.

The implications of the Mediation Act are yet to be seen however, it is clear that it is fundamental that legal practitioners practising in employment law will need a good understanding of the mediation process.

The Act can be accessed on the below link:
http://www.irishstatutebook.ie/eli/2017/act/27/enacted/en/html

5th February 2018

Anne O’Connell
Solicitors
1-3 Burton Hall Road
Sandyford
Dublin 18
www.aocsolicitors.ie

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