1 General and 2 Management CPD Hours

Chaired by The Honourable Mr. Justice Brian J. McGovern

Mediation has long been an option for parties in dispute. However, the enactment of The Mediation Act, 2017 effectively puts it at the fore-front of litigation strategy. The legislation will significantly increase the proportion of settlements reached through this process.

Mediation can no longer be ignored, disregarded or dismissed as inappropriate for certain types of disputes. Solicitors now have a new statutory obligation to inform and advise litigation clients to consider mediation as a means of resolving their dispute. This obligation also includes advising on the relative advantages of resolution through mediation as well as the benefits of the process. Furthermore, solicitors must now make a statutory declaration confirming that they have complied with this requirement. Clients will expect their solicitor to advise, assist and represent them in mediation. This includes initial process calls/meetings with the mediator, preparing and advising on case summaries and core booklets, providing appropriate legal advice as well as advising on the agreement to mediate and advising on and drafting the mediation settlement.

The object of this seminar is to provide practitioners with a practical guide to the provisions of the Act and to assess its implications for litigation practitioners, in particular. It will examine how the legislation interacts with court practice and procedure. It will also provide an overview on how mediation operates in practice

Introduction:

  • The paradigm shift from litigation to mediation
  • The integration of mediation into the civil justice system.
  • The advantages and benefits of mediation
  • Navigating the mediation process: what every litigation practitioner needs to know.
  • Representing a client in mediation
Implications of the Mediation Act, 2017 for Litigation Practitioners:
  • Scope of the legislation: What is the position in relation to disputes under part 4 of the Workplace Relations Act and proceedings in the High Court by way of Judicial Review?
  • The new obligations on solicitors which must be undertaken before proceedings are commenced.
  • Must the court adjourn the proceedings if the solicitor has not sworn the appropriate statutory declaration?
  • Agreement to mediate and the role of the mediator.
  • Implications for the Statute of Limitations: stopping the limitation clock.
  • What happens when a client declines to offer or accept mediation?
  • Is it advisable to set out in writing the reasons why the invitation to mediate is being refused?
  • Will a court take into account an unreasonable refusal to mediate when awarding costs?
  • Can notes of a mediation be disclosed in subsequent legal proceedings?
  • When can a court invite the parties to consider mediation?
  • Is the mediator obliged to submit a report to the court if the parties subsequently re-enter the proceedings?
  • Enforceability of mediation settlements.
  • Pre-proceedings mediation checklist.