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Judges to request proof of mediation effort

Judges may increasingly begin to request certificates showing that solicitors have complied with their obligations under the Mediation Act 2017, a conference at the Law Society has heard.

Mediation was one of the main topics at the Litigation Committee Annual Update 2024, held in collaboration with Law Society Professional Training (23 October). 

There was a particular focus on the implications of a recent High Court judgment, in which Mr Justice Kennedy disallowed the plaintiffs a small portion of their costs because of non-compliance with section 14 of the 2017 act, which obliges solicitors to advise clients of the option of mediation. 

Ms Justice Eileen Roberts told the event that it was not always apparent to judges that solicitors had complied with section 14, and that they might increasingly seek copies of the relevant certificates to ensure that clients had been advised on mediation at an early stage.

‘No meaningful attempt’

“One of the surprising revelations to me now, as a judge, is the number of disputes litigated right through to trial, where it appears there has been no attempt, or no meaningful attempt, at mediation or settlement,” she stated.

Ms Justice Roberts also expressed surprise at how little open correspondence on mediation was exchanged between parties before trial, adding that such correspondence could be “of great assistance” in cost applications.

The event also heard that, despite its advantages, mediation was not a panacea.

IRB mediation

Stuart Gilhooly of HJ Ward told the conference that the Injuries Resolution Board (IRB) had been heavily promoting its mediation option since its introduction last year, but he pointed out that the process remained voluntary.

He said that, although the IRB was advising insurers that respondents should pay towards the costs of mediation, it could not enforce this.

Gilhooly added that some of the procedures involved, particularly the pre-mediation form, needed to be fixed.  

Overall, Gilhooly told the conference that there was “a long way to go” to make the IRB mediation process work, but there was a place for mediation, and urged solicitors to “keep an open mind”.

Awards ‘on the low side’

Gilhooly also spoke about the impact of the Personal Injury Guidelines, telling the conference that he believed that, although IRB awards under the guidelines had increased, they were still on the low side.

Outlining recent litigation under the guidelines, he described uplift (awards for non-dominant injuries) as the “key battle area”, adding that there was more care being given to how the uplift was calculated.

He said that a dominant injury received the full award that fell under the guidelines. All other injuries were then calculated within their range in the guidelines, but then discounted back, with the discount varying. 

Gilhooly added that he expected a new set of guidelines to come before the Oireachtas after the election and come into effect “sometime next year”. 

Witness statements 

In her address, Ms Justice Roberts also urged solicitors to “firmly” take control of the discovery process at the outset of their instructions, pointing out that the costs of discovery could easily double the costs of any litigation.

Ms Justice Roberts also warned solicitors against being “too interventionist” in witness statements.

While acknowledging that most witnesses needed some assistance, she said that “increasingly, witness statements sound and feel less like the evidence of the witness himself or herself”.

“Many witnesses have to admit under oath that their solicitor drafted their witness statement, or even that they do not understand what certain parts of their witness statement mean,” she stated, adding that judges preferred statements “that sounded like the witness”.

The judge also told solicitors that their correspondence could be reviewed by a court, and that the tone of such correspondence was important.

“The party who sticks to the facts, argues the law, and confines its dispute to points of substance will always impress. Inflammatory, over-personalised and self-serving correspondence will be seen for what it is, and it should be avoided,” she told attendees.