Mediation

Mediation

Mediation is defined 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. It is for the parties to determine the outcome of the mediation.

The parties to a dispute may engage in mediation as a means of attempting to resolve the dispute. Participation in mediation is voluntary at all times.

The fact that proceedings have been issued in relation to the dispute shall not prevent the parties from engaging in mediation at any time prior to the resolution of the dispute.

The fees and costs of the mediation shall not be contingent on its outcome.

Withdrawal

A party may—

• withdraw from the mediation at any time during the mediation,
• be accompanied to the mediation, and assisted by, a person (including a legal advisor) who is not a party, or
• obtain independent legal advice at any time during the mediation.

The mediator and the parties shall, having regard to the nature of the dispute, make every reasonable effort to conclude the mediation in an expeditious manner which is likely to minimise costs.

The mediator may withdraw from the mediation at any time during the mediation by notice in writing given to the parties stating the mediator’s general reasons for the withdrawal.A withdrawal by the mediator from the mediation shall not of itself prevent the mediator from again becoming the mediator in that mediation.

Where the mediator withdraws from the mediation the mediator shall return the fees and costs paid in respect of that portion of time during which the mediator was paid to act as the mediator and for which he or she will no longer act as the mediator.

Agreement to mediate

Prior to the commencement of the mediation, the parties and the proposed mediator shall prepare and sign a document ( an “agreement to mediate”) appointing the mediator and containing the following information:

• the manner in which the mediation is to be conducted;
• the manner in which the fees and costs of the mediation will be paid;
• the place and time at which the mediation is to be conducted;
• the fact that the mediation is to be conducted in a confidential manner;
• the right of each of the parties to seek legal advice;
• the manner in which the mediation may be terminated;
• such other terms (if any) as may be agreed between the parties and the mediator.

Initial Obligations of Mediator

The mediator shall, prior to the commencement of the mediation—

make such enquiry as is reasonable in the circumstances to determine whether he or she may have any actual or potential conflict of interest, and not act as mediator in that mediation if, following such enquiry, he or she determines that such conflict exists.

He shall furnish to the parties the following details of the mediator that are relevant to mediation in general or that particular mediation qualifications, training and experience, continuing professional development training, and  furnish to the parties a copy of any code of practice published or approved under section 9 to which he or she subscribes in so far as mediation is concerned.

Role of mediator

The mediator shall—

• during the course of the mediation, declare to the parties any actual or potential conflict of interest of which he or she becomes aware or ought reasonably to be aware as such conflict arises and, having so declared, shall, unless the parties agree to him or her continuing to act as the mediator, cease to act as the mediator,
• act with impartiality and integrity and treat the parties fairly,
• complete the mediation as expeditiously as is practicable having regard to the nature of the dispute and the need for the parties to have sufficient time to consider the issues, and
• ensure that the parties are aware of their rights to each obtain independent advice (including legal advice) prior to signing any mediation settlement.

The outcome of the mediation shall be determined by the mutual agreement of the parties and the mediator shall not make proposals to the parties to resolve the dispute. The mediator may, at the request of all the parties, make proposals to resolve the dispute, but it shall be for the parties to determine whether to accept such proposals.

Codes of practice

The Minister shall prepare and publish a code or codes of practice to set standards for the conduct of mediations or approve a code or codes of practice prepared by a person other than the Minister which purports to set standards for the conduct of mediations.

A code of practice referred  may include provisions in relation to any of the following:

• continuing professional development training requirements for mediators;
• procedures to be followed by mediators in the conduct of a mediation;
• procedures to be followed by mediators in the conduct of a mediation requiring consultation, by a mediator, with a child;
• ethical standards to be observed by mediators during a mediation;
• confidentiality of a mediation;
• procedures to be followed by a party for redress in the event of dissatisfaction with the conduct of a mediation;
• determination of the fees and costs of a mediation;
• any other matters relevant to the conduct of mediation.

Confidentiality

All communications (including oral statements) and all records and notes relating to the mediation shall be confidential and shall not be disclosed in any proceedings before a court or otherwise. This does not apply to a communication or records or notes, or both, where disclosure—

• is necessary in order to implement or enforce a mediation settlement,
• is necessary to prevent physical or psychological injury to a party,
• is required by law

It does not apply to a disclosure which is necessary in the interests of preventing or revealing—

• the commission of a crime (including an attempt to commit a crime),
• the concealment of a crime, or
• a threat to a party,or
• is sought or offered to prove or disprove a civil claim concerning the negligence or misconduct of the mediator occurring during the mediation or a complaint to a professional body concerning such negligence or misconduct.

Evidence introduced into or used in mediation that is otherwise admissible or subject to discovery in proceedings shall not be or become inadmissible or protected by privilege in such proceedings solely because it was introduced into or used in meditation.

Enforceability of mediation settlements

The parties shall determine if and when a mediation settlement has been reached between them, and whether the mediation settlement is to be enforceable between them.

Aa mediation settlement shall have effect as a contract between the parties to the settlement except where it is expressly stated to have no legal force until it is incorporated into a formal legal agreement or contract to be signed by the parties.

A court may, on the application of one or more parties to a mediation settlement, enforce its terms except where the court is satisfied that the mediation settlement—

• does not adequately protect the rights and entitlements of the parties and their dependents (if any),
• is not based on the full and mutual disclosure of assets, or
• is otherwise contrary to public policy, or
• a party to the mediation settlement has been overborne or unduly influenced by any other party in reaching the mediation settlement.

Where a mediation settlement relates to a child, a court, in determining any application with regard to the mediation settlement, shall be bound by statutory considerations of the bests interest of the child.

Solicitor’s Duty and mediation

A practising solicitor shall, prior to issuing proceedings on behalf of a client—

• advise the client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings,
• provide the client with information in respect of mediation services, including the names and addresses of persons who provide mediation services,
• provide the client with information about the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and the benefits of mediation,
•  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
•  inform the client of the next mentioned matters.

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 above obligations imposed on him or her in relation to the client and the proceedings to which the declaration relates.

If the originating document is not accompanied by a statutory declaration, 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 and provide the court with such declaration or, if the solicitor has already complied, provide the court with such declaration.

Where it is lawful for a practising barrister to issue proceedings on behalf of a client who is not represented by a practising solicitor. obligations analogous to those imposed above on a practising solicitor in relation to a client of the solicitor may be prescribed, subject to such modifications as may be specified in the regulations concerned, to be performed by a practising barrister in relation to a client of the barrister.

Court inviting parties to consider mediation

A court may, on the application of a party involved in proceedings, or of its own motion where it considers it appropriate having regard to all the circumstances of the case:

• invite the parties to the proceedings to consider mediation as a means of attempting to resolve the dispute about the subject of the proceedings;
• provide the parties to the proceedings with information about the benefits of mediation to settle the dispute the subject of the proceedings.

Where, following an invitation by the court, the parties decide to engage in mediation, the court may—

• adjourn the proceedings,
• make an order extending the time for compliance by a party with rules of court or with any order of the court in the proceedings, or
• make such other order or give such direction as the court considers necessary to facilitate the effective use of mediation.

An application by a party  shall be made by motion to the court on notice to all other parties to the proceedings not later than 14 days before the date on which the proceedings are first listed for hearing and shall, unless the court otherwise orders, be grounded upon an affidavit sworn by or on behalf of the party. This power is without prejudice to any other discretionary power which the court may exercise at any time during the course of proceedings with a view to facilitating the resolution of a dispute.

Mediator report to Court

Where, following an invitation by the court, the parties to the proceedings concerned engage in mediation and subsequently apply to the court to re-enter the proceedings, the mediator shall prepare and submit to the court a written report which shall set out where the mediation did not take place, a statement of the reasons as to why it did not take place.

Where the mediation took place the parties shall prepare and submit to the court

• a statement as to whether or not a mediation settlement has been reached between the parties in respect of the dispute the subject of the proceedings, and
• if a mediation settlement has been reached on all or some only of the matters concerning that dispute, a statement of the terms of the mediation settlement.

Except where otherwise agreed or directed by the court, a copy of a report prepared shall be given to the parties at least 7 days prior to its submission to the court.

Effect of mediation on limitation and prescription periods

In reckoning a period of time for the purposes of a limitation period specified by the Statutes of Limitations, the period beginning on the day on which an agreement to mediate is signed and ending on the day which is 30 days after either—

• a mediation settlement is signed by the parties and the mediator, or
• the mediation is terminated,

whichever first occurs, shall be disregarded.

The mediator in a mediation shall inform the parties in writing of the date on which the mediation ends.

Adjourning court proceedings to facilitate mediation

Where parties have entered into an agreement to mediate, and one or more of the parties commence proceedings in respect of the dispute the subject of the agreement to mediate, a party to the proceedings may, at any time after an appearance has been entered and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to adjourn the proceedings.

On application to it being made, the court shall make an order adjourning such proceedings if it is satisfied that—

• there is not sufficient reason why the dispute in respect of which the proceedings have been commenced should not be dealt with in accordance with the agreement to mediate, and
• the applicant party was at the time when the proceedings were commenced and still remains, ready and willing to do all things necessary for the proper implementation of the agreement to mediate.

Fees and costs

Unless ordered by a court or otherwise agreed between the parties, the parties shall pay to the mediator the fees and costs agreed in the agreement to mediate or share equally the fees and costs of the mediation.

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 respect of proceedings, 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 the proceedings to attend mediation,

following an invitation to do so by the court.