Mediation Act 2017: Obligation of practising solicitors to advise clients about mediation before starting proceedings

Practitioners are reminded that section 14 of the Mediation Act 2017 requires that, ‘prior to issuing proceedings’, a solicitor must provide the client with specific advice and information of about mediation.

Alternative Dispute Resolution 10/09/2024

Practitioners are reminded that section 14 of the Mediation Act 2017 requires that, ‘prior to issuing proceedings’, a solicitor must provide the client with specific advice and information of about mediation. Section 14(1)[1] sets out in detail the required content of this advice and information. The solicitor must:

  • (a) advise the client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings,

  • (b) provide the client with information about mediation services, including the names and addresses of persons who provide mediation services,

  • (c) provide the client with information about—

    1. the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and

    2. the benefits of mediation,

  • (d) 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,

  • (e) inform the client of the matters referred to in section 10 (confidentiality), section 11 (enforceability of mediation settlements), section 14(2) (solicitor’s obligation to make a statutory declaration of compliance with these obligations before commencing proceedings) and section 14(3) (court duty to adjourn the proceedings if this is not done).

Under section 14(2), the originating document by which proceedings are issued by a solicitor must be accompanied by a statutory declaration made by the solicitor evidencing that he or she has performed the above obligations.

There are precedent forms of advice letter and statutory declaration on the Law Society website.

A copy of the statutory declaration should be served with the originating document. If possible, it should be filed in the court office when proceedings are issued. The committees are aware that some court offices currently do not file the statutory declaration without an order of the court.[2]

Section 14(3) provides that if the originating document is not accompanied by a statutory declaration made in accordance with section 14(1), the court concerned ‘shall’ adjourn the proceedings for such period as it considers reasonable to enable the solicitor to comply with that subsection and provide the declaration (or, if he or she has already complied, to provide the declaration).

These requirements apply to all civil proceedings in court, with very limited exceptions set out in sections 3(1) and 14(4).

It has come to the Committee's attention that some practitioners may still not be aware of these provisions. Failure to comply with section 14 may result in delay and other adverse consequences for practitioners and their clients. For example, in Byrne v Arnold [2024] IEHC 308, the plaintiffs’ solicitor had failed to comply with section 14. This came to the court’s attention during a hearing. Kennedy J rose to allow the plaintiffs’ solicitor give the required advice and information (late). He made it clear that the court would not necessarily extend this latitude were such a breach to occur again. In the event the plaintiffs were successful and awarded costs, but the costs were reduced because of their solicitor’s failure to comply with section 14. The judge said that he had considered a 15% reduction. He reduced the party-and-party costs by 5% to reflect the plaintiffs' defaults (primarily with regard to section 14, but also delay in delivering their statement of claim). But he warned that ‘courts may be less lenient in the future’.[3]

Practitioners’ attention is drawn also to Practice Direction HC127 of 19 June 2024, which requires that the solicitors for all parties in High Court non-jury proceedings complete and sign a Trial Summary Form, which must include, among other things, confirmation that the solicitors for all parties have complied with their obligations under section 14 and the date of the required advices.

 

[1] References to sections are to sections of the Mediation Act 2017.

[2] Notwithstanding the requirement that the originating document ‘shall be accompanied by’ the statutory declaration.

[3] For a detailed consideration of this decision see Bill Holohan SC, ‘Speak to Me’, Law Society Gazette, July 2024, page 26.