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Mediation Bill Published

01 March, 2017

Published on 13 February 2017, the Bill seeks to formalise what is already a popular non-adversarial method for resolving many different types of disputes. For the first time, solicitors (including in-house solicitors providing legal services) and barristers will have a statutory obligation to advise clients to consider using mediation as a means of resolving their dispute. The obligation includes advising:

the client generally to consider mediation as a means of resolving the dispute;
on mediation services, including details of qualified mediators;
on the advantages and benefits of mediation;
on the confidentiality of the process; and
the enforceability of mediation settlements.
If a client decides not to mediate, the solicitor must swear a statutory declaration that they advised their client to consider mediation. Where such declaration is not filed, the Court will adjourn any proceedings issued until such times as it is provided. In an effort to alleviate the pressure on the already over-exerted Courts' system, the Bill imposes costs sanctions on parties for unreasonably failing to engage in mediation.

It is important to note that mediation is an option at any stage of the proceedings. Equally, parties may withdraw from mediation at any time. Any agreement is voluntary and both its terms and the extent to which it may be binding is up to the parties. The fees and costs of the mediation shall not be contingent on its outcome (unlike the Court process). Mediation also has the advantage of being an entirely confidential process.

If mediation is the preferred process, the parties and the proposed mediator shall prepare and sign an "agreement to mediate" which appoints the mediator and sets out the agreed framework for the mediation. This is a new obligation and should facilitate the reaching of an agreement between the parties on certain matters (fees and costs, location and time of mediation, right to terminate mediation etc.). From the date of signing the agreement to mediate, the time will effectively stop for bringing claims under the Statute of Limitations until 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.

While the Mediation Bill imposes an obligation on parties to seriously consider mediation, not all disputes are amenable to mediation and so long as refusal to mediate is not unreasonable, the Court process will remain the main forum for resolving disputes.