The Mediation Act 2017 (the Act) was just signed into law on 2 October 2017 and is expected to come into force in the coming weeks. The Act applies to all litigation disputes (but not to arbitration or certain disputes under tax and customs legislation). The Act encourages mediation processes which have the potential to achieve better outcomes for the parties and reduce strain on the courts system.
The Act preserves the essence of mediation: voluntary, collaborative agreement where the parties control the process. Mediation has been successfully used for dispute resolution for many years in Ireland but the Act reinforces and supports the process. Although not all disputes are amenable to mediation, the Act encourages parties to resolve their difficulties without having to go through an expensive trial process.
Role of the mediator
A mediator must act in an impartial, facilitative manner to assist the parties to resolve their dispute. Prior to the commencement of mediation, the Act requires the mediator to furnish the parties with his/her experience and qualifications, and to ensure that no conflicts of interest exist. While the mediator may make proposals for resolution of the dispute when requested to do so by all parties, the outcome of mediation must be determined by the parties, not the mediator.
The Act will likely increase the number of mediations, leading to a greater need for mediators, particularly those with specialist expertise. Complex financial disputes involving corporations and multi-nationals may benefit from mediators with experience in business valuations and the application of technical accounting standards. Knowledge of business and commercial common sense will also be key attributes. Experienced accountants have many of these attributes and may well be interested in becoming accredited mediators.
The expected increase in numbers of mediations is also likely to mean that the parties will need professional or expert advice, including financial expertise, at an earlier stage in the dispute process. This will ensure that parties are in a position to fully consider the financial and taxation ramifications of any settlement proposal.
Key points for accountants
Just some things accountants should keep in mind:
- You must actively consider mediation before litigating;
- Before litigating, solicitor's statutory declaration must confirm that the client was advised about mediation process;
- There will be an increased role for financial and taxation experts and advisors at outset of certain disputes;
- There will be a greater need for mediators with financial, taxation and general business experience and expertise
Liam Kennedy, Partner and Head of Commercial Dispute Resolution at A&L Goodbody and accredited CEDR mediator, Joe Kelly, Partner in the Litigation and Dispute Resolution Department at A&L Goodbody and accredited CEDR mediator and Mark O'Shaughnessy, Associate at A&L Goodbody.