Mediation Act 2017

PART 1 Preliminary and General

1.. Short title and commencement

1. (1) This Act may be cited as the Mediation Act 2017

(2) This Act shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2.. Interpretation

2. (1) In this Act—

“agreement to mediate” has the meaning assigned to it by section 7;

“Council” has the meaning assigned to it by section 12(1);

“dispute” includes a complaint;

“family law proceedings” means proceedings before a court of competent jurisdiction under any of the following enactments:

(a) section 8 of the Enforcement of Court Orders Act 1940 in so far as that section relates to the enforcement of maintenance orders;

(b) the Guardianship of Infants Act 1964;

(c) the Family Home Protection Act 1976;

(d) the Family Law (Maintenance of Spouses and Children) Act 1976;

(e) the Family Law Act 1981;

(f) the Status of Children Act 1987;

(g) the Judicial Separation and Family Law Reform Act 1989;

(h) the Child Abduction and Enforcement of Custody Orders Act 1991;

(i) the Maintenance Act 1994;

(j) the Family Law Act 1995;

(k) the Family Law (Divorce) Act 1996;

(l) the Protection of Children (Hague Convention) Act 2000;

(m) the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

(n) the Children and Family Relationships Act 2015;

(o) subject to subsection (2), any other enactment which may be prescribed for the purposes of this definition;

“mediation” means 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;

“mediation information session” has the meaning assigned to it by section 23 (1);

“mediation settlement” means an agreement in writing reached by the parties to a dispute during the course of a mediation and signed by the parties and the mediator;

“mediator” means 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;

“Minister” means Minister for Justice and Equality;

“party” means a party to a mediation;

“practising barrister” has the same meaning as it has in section 2 of the Legal Services Regulation Act 2015;

“practising solicitor” has the same meaning as it has in section 2 of the Legal Services Regulation Act 2015;

“prescribed” means prescribed by regulations made under section 4;

“proceedings” means civil proceedings that may be instituted before a court.

(2) In prescribing an enactment for the purposes of the definition of “family law proceedings”, the Minister shall have regard to—

(a) the desirability of resolving, in so far as is practicable, disputes, within a family, that the enactment relates to in a manner that is non-adversarial, and

(b) the need for the expeditious resolution of such disputes in a manner that minimises the costs of resolving those disputes for the parties concerned.

3.. Scope

3. (1) This Act shall not apply to:

(a) an arbitration within the meaning of the Arbitration Act 2010;

(b) a dispute that falls under the functions of, or is being investigated by, the Workplace Relations Commission, including a dispute being dealt with under Part 4 of the Workplace Relations Act 2015, whether by a mediation officer appointed under section 38 of that Act or otherwise;

(c) a matter that may be determined by—

(i) an Appeal Commissioner appointed under section 8 of the Finance (Tax Appeals) Act 2015,

(ii) the High Court under section 949AR of the Taxes Consolidation Act 1997, or

(iii) a property arbitrator appointed under section 2 of the Property Values (Arbitrations and Appeals) Act 1960 in relation to a decision of the Revenue Commissioners as to the market value of any real property;

(d) an application under section 901, 902A, 907, 907A, 908, 908B or 1077B of the Taxes Consolidation Act 1997;

(e) proceedings under—

(i) sections 960I, 960M, 960N, 1061, 1062 or 1077D of the Taxes Consolidation Act 1997,

(ii) section 20 of the Customs Act 2015, or

(iii) section 127 of the Finance Act 2001;

(f) proceedings in the High Court by way of judicial review or of seeking leave to apply for judicial review;

(g) proceedings against the State in respect of alleged infringements of the fundamental rights and freedoms of a person;

F1[(h) proceedings under the Domestic Violence Act 2018;]

(i) proceedings under the Child Care Acts 1991 to 2015;

(j) subject to subsection (3), any other dispute or proceedings relating to a dispute which may be prescribed for the purposes of this subsection.

(2) Nothing in this Act shall be construed as replacing a mediation or other dispute resolution process provided for in any—

(a) other enactment or instrument made under any other enactment, or

(b) contract or agreement.

(3) In prescribing, under paragraph (j) of subsection (1), a dispute or proceedings relating to a dispute for the purposes of that subsection, the Minister shall have regard to—

(a) the unsuitability of mediation as a means of resolving the dispute or proceedings relating to a dispute,

(b) the availability and suitability of means, other than mediation, of resolving the dispute or proceedings relating to a dispute, and

(c) the rights (if any) of the parties to the dispute or proceedings relating to a dispute to engage in proceedings before a court to resolve the dispute or proceedings relating to a dispute.

4.. Regulations

4. (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.

(2) Without prejudice to any provision of this Act, regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(3) Every regulation under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

5.. Expenses

5. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

PART 2 Mediation in General

6.. Mediation

6. (1) The parties to a dispute may engage in mediation as a means of attempting to resolve the dispute.

(2) Participation in mediation shall be voluntary at all times.

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

(4) A party may—

(a) withdraw from the mediation at any time during the mediation,

(b) be accompanied to the mediation, and assisted by, a person (including a legal advisor) who is not a party, or

(c) obtain independent legal advice at any time during the mediation.

(5) Subject to subsection (4)(a), 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.

(6) Subject to subsections (7) and (8) and subject to the confidentiality of the mediation, 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.

(7) A withdrawal under subsection (6) by the mediator from the mediation shall not of itself prevent the mediator from again becoming the mediator in that mediation.

(8) Where the mediator withdraws from the mediation under subsection (6), 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.

(9) It is for the parties to determine the outcome of the mediation.

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

7.. Agreement to mediate

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

(a) the manner in which the mediation is to be conducted;

(b) the manner in which the fees and costs of the mediation will be paid;

(c) the place and time at which the mediation is to be conducted;

(d) the fact that the mediation is to be conducted in a confidential manner;

(e) the right of each of the parties to seek legal advice;

(f) subject to section 6(6), the manner in which the mediation may be terminated;

(g) such other terms (if any) as may be agreed between the parties and the mediator.

8.. Role of mediator

8. (1) The mediator shall, prior to the commencement of the mediation—

(a) (i) 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

(ii) not act as mediator in that mediation if, following such enquiry, he or she determines that such conflict exists,

(b) furnish to the parties the following details of the mediator that are relevant to mediation in general or that particular mediation:

(i) qualifications;

(ii) training and experience;

(iii) continuing professional development training,

and

(c) 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.

(2) The mediator shall—

(a) 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,

(b) act with impartiality and integrity and treat the parties fairly,

(c) 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

(d) ensure that the parties are aware of their rights to each obtain independent advice (including legal advice) prior to signing any mediation settlement.

(3) Subject to subsection (4), 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.

(4) 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.

9.. Codes of practice

9. (1) The Minister shall, as soon as practicable after the coming into operation of this section and having had regard to the matters specified in subsection (2)—

(a) prepare and publish a code or codes of practice to set standards for the conduct of mediations, or

(b) 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.

(2) A code of practice referred to in subsection (1) may include provisions in relation to any of the following:

(a) continuing professional development training requirements for mediators;

(b) procedures to be followed by mediators in the conduct of a mediation;

(c) procedures to be followed by mediators in the conduct of a mediation requiring consultation, by a mediator, with a child;

(d) ethical standards to be observed by mediators during a mediation;

(e) confidentiality of a mediation;

(f) procedures to be followed by a party for redress in the event of dissatisfaction with the conduct of a mediation;

(g) determination of the fees and costs of a mediation;

(h) any other matters relevant to the conduct of mediation.

(3) Before publishing or approving a code of practice under this section, the Minister shall—

(a) publish a notice on the website of the Department of Justice and Equality and in at least one daily newspaper circulating generally in the State—

(i) indicating that he or she proposes to publish or approve a code under this section,

(ii) indicating that a draft of the code is available for inspection on that website for a period specified in the notice (being not less than 30 days from the date of the publication of the notice in the newspaper), and

(iii) stating that submissions in relation to the draft code may be made in writing to the Minister before a date specified in the notice (which shall be not less than 30 days after the end of the period referred to in subparagraph (ii)),

and

(b) have regard to any submissions received pursuant to paragraph (a)(iii).

(4) Where the Minister prepares or approves a code of practice under this section, he or she shall cause a notice of the preparation or approval to be published in Iris Oifigiúil and the notice shall specify the date from which the code shall come into operation.

(5) Subject to subsection (6), the Minister may—

(a) amend or revoke a code of practice prepared or approved under this section, or

(b) withdraw approval in respect of any code of practice previously approved under this section.

(6) The requirements of subsections (3) and (4) shall, with all necessary modifications, apply to a code of practice that the Minister intends to amend or revoke or in relation to which the Minister intends to withdraw his or her approval.

(7) Where the Minister amends or revokes, or withdraws his or her approval in respect of, a code of practice under this section, he or she shall cause a notice to that effect to be published in Iris Oifigiúil specifying—

(a) the code to which the amendment, revocation or withdrawal of approval, as the case may be, relates,

(b) whether the code is to be amended or revoked or whether approval in relation to the code is to be withdrawn,

(c) if the code is to be amended, particulars of the amendment, and

(d) the date from which the amendment, revocation or withdrawal of approval, as the case may be, shall come into operation.

(8) In this section “code of practice” includes part of a code of practice.

10.. Confidentiality

10. (1) Subject to subsection (2) and section 17, 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.

(2) Subsection (1) shall not apply to a communication or records or notes, or both, where disclosure—

(a) is necessary in order to implement or enforce a mediation settlement,

(b) is necessary to prevent physical or psychological injury to a party,

(c) is required by law,

(d) is necessary in the interests of preventing or revealing—

(i) the commission of a crime (including an attempt to commit a crime),

(ii) the concealment of a crime, or

(iii) a threat to a party,

or

(e) 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.

(3) 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 mediation.

11.. Enforceability of mediation settlements

11. (1) The parties shall determine—

(a) if and when a mediation settlement has been reached between them, and

(b) whether the mediation settlement is to be enforceable between them.

(2) Notwithstanding subsection (1) and subject to subsection (3), a 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.

(3) Without prejudice to sections 8 and 8A (inserted by section 20 of the Status of Children Act 1987) of the Family Law (Maintenance of Spouses and Children) Act 1976 and subject to subsection (4), 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—

(a) the mediation settlement—

(i) does not adequately protect the rights and entitlements of the parties and their dependents (if any),

(ii) is not based on full and mutual disclosure of assets, or

(iii) is otherwise contrary to public policy,

or

(b) a party to the mediation settlement has been overborne or unduly influenced by any other party in reaching the mediation settlement.

(4) Where a mediation settlement relates to a child, a court, in determining any application with regard to the mediation settlement, shall be bound by section 3 (amended by section 45 of the Children and Family Relationships Act 2015) of the Guardianship of Infants Act 1964.

12.. Council

12. (1) Subject to subsections (2) to (4) and (7), the Minister may, by order, declare that such body as is specified in the order shall be recognised for the purposes of this Act, and a body standing so recognised for the time being shall be known as the Mediation Council of Ireland (in this Act referred to as the “Council”).

(2) Not more than one body shall stand recognised under this section for the time being.

(3) Before making an order under subsection (1), the Minister shall—

(a) publish a notice on the website of the Department of Justice and Equality and in at least one daily newspaper circulating generally in the State—

(i) indicating that he or she intends to make an order under subsection (1),