Categories
Family Law

The Enforceability of Family Law Mediation Agreements

Mediation agreements are negotiated agreements between the parties in dispute. They are in common use when it comes to separating couples when the relationship has broken down and the parties seek to do the sensible thing and negotiate certain terms to cover matters such as property, maintenance, custody, access, and so forth.

Mediators guide the parties to their own agreement but do not give legal advice and the mediated agreement is not legally enforceable unless an extra step is taken.

The Mediation Act 2017 is important in this connection, however, as section 11(2) of the Mediation Act 2017 states

(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.

Mediated agreements must be ruled in court in a divorce or judicial separation. However, the court retains its discretion as to whether the agreement makes proper provision and will not rule such an agreement in certain circumstances set out in section 11(3),

where
(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.

The Mediation Act 2017 and solicitors

Section 14 of the Mediation Act, 2017 sets out the obligations on solicitors under the act as follows:
Practising solicitor and mediation

(1) A practising solicitor shall, prior to issuing proceedings on behalf of a client—

(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 in respect of mediation services, including the names and addresses of persons who provide mediation services,

(c) provide the client with information about—

(i) the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and

(ii) 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, and

(e) inform the client of the matters referred to in subsections (2) and (3) and sections 10 and 11 .

(2) If a practising solicitor is acting on behalf of a client who intends to institute proceedings, the originating document by which proceedings are instituted shall be accompanied by a statutory declaration made by the solicitor evidencing (if such be the case) that the solicitor has performed the obligations imposed on him or her under subsection (1) in relation to the client and the proceedings to which the declaration relates.

(3) If the originating document referred to in subsection (2) is not accompanied by a statutory declaration made in accordance with that subsection, the court concerned shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the practising solicitor concerned to comply with subsection (1) and provide the court with such declaration or, if the solicitor has already complied with subsection (1), provide the court with such declaration.

(4) This section shall not apply to any proceedings, including any application, under—

(a) section 6A, 11 or 11B of the Guardianship of Infants Act 1964 ,

(b) section 2 of the Judicial Separation and Family Law Reform Act 1989 , or

(c) section 5 of the Family Law (Divorce) Act .

Solicitors need to ensure clients know that mediation is a voluntary process to arrive at a negotiated solution for the parties. Mediation agreements are intended to be binding but it is advisable that any such agreement is not legally binding until it is put into a legal format. For this reason both parties should be advised and encouraged to obtain legal advice before signing the concluded agreement.

The Law Society advises its solicitors to state that such agreements are not legally binding until further steps are taken to give it binding legal effect. Solicitors are advised to insert the following clause in the agreement:

“We are signing the mediation settlement in recognition of completion of our mediation. We understand that, in signing this, we are not entering into a legally binding and enforceable agreement, for which more steps must be taken to give binding effect to our mediation settlement.”

In summary, the Mediation Act 2017 provides that the mediation agreement shall have effect as a contract between the parties unless expressly stated to be otherwise. The Law Society recommends the clause above to ensure this is the case.

Categories
Litigation

The Zen of the Mediation Act, 2017

mediation act 2017

The Mediation Act, 2017 came into law in Ireland on 1st January, 2018. The purpose of this legislation is to allow parties to a dispute to avoid the costs of litigation and to reduce the number of disputes coming before the Courts.

Mediation is a collaborative process which aims to encourage the parties to a dispute to arrive at their own solution, with the professional assistance of the mediator. The mediator is to facilitate the parties and provide his/her professional expertise and experience but the determination of the dispute is up to the parties themselves.

The mediator can make proposals to resolve the dispute when the parties request this. There may also be a need for experts in a mediation if the issues are complex-for example a financial dispute with taxation implications.

It will have significant implications for solicitors in their daily practice of advising clients, and for clients who wish to institute litigation proceedings.

Before commencing legal proceedings on behalf of a client a solicitor will have to swear a statutory declaration that

  1. He/she has advised the client of the availability of mediation as a way to settle the dispute
  2. Give the client information about the benefits of using mediation, as opposed to instituting legal proceedings
  3. Give the client names and addresses of mediators who may be able to assist in resolving the issues between the parties
  4. Tell the client that mediation is voluntary and may not be appropriate where the safety of the client is at risk or where there is children and their welfare/health/safety is at risk
  5. Advise the client of the need for confidentiality in a mediation and the enforceability of a mediated agreement
  6. Advise the client of the solicitor’s obligation to provide a statutory declaration confirming the provision of the information above to the client

The statutory declaration should accompany whatever document is used to commence legal proceedings. If this does not occur the Court can adjourn proceedings until such time as the solicitor has provided the Court with the statutory declaration.

The Mediation Act, 2017 will not apply to certain proceedings, for example High Court judicial review proceedings and an arbitration under the Arbitration Act, 2010. The full scope of the act is set out in section 3, Mediation Act, 2017.

A court will be allowed to take into account when awarding costs any party’s unreasonable refusal or failure to use mediation.

Part 2 of the Act sets out the provisions re mediation generally including the role of the mediator, codes of practice, and the enforceability of settlement agreements arrived at through mediation.

Part 3 sets out the obligations of solicitors and barristers with respect to mediation and Part 4 sets out the role of the Court.

Section 19, Mediation Act, 2017 is an interesting one as it allows a Court to adjourn court proceedings to facilitate mediation:

9. (1) Where—

(a) parties have entered into an agreement to mediate, and

(b) one or more of the parties referred to in paragraph (a) commences proceedings in respect of the dispute the subject of the agreement to mediate,

a party to the proceedings may, at any time after an appearance has been entered and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to adjourn the proceedings.

(2) On application to it being made under subsection (1), the court shall make an order adjourning such proceedings if it is satisfied that—

(a) there is not sufficient reason why the dispute in respect of which the proceedings have been commenced should not be dealt with in accordance with the agreement to mediate, and

(b) the applicant party was at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary for the proper implementation of the agreement to mediate.

(3) This section is in addition to and not in substitution for any power of a court to adjourn proceedings before it.

Some commentators have advanced the opinion that an employer, with an employment contract containing a clause agreeing to mediation in the even of a dispute, can have Court proceedings adjourned pursuant to section 19. It is too early to say how a Court will view this argument but it is probably advisable for an employer to have such a clause in his contract of employment as he has nothing to lose in doing so.

Section 16 provides for a court inviting the parties to engage in mediation and section 17 provides for the mediator to provide a report to the Court to explain why the parties have not so engaged or to explain why the mediation has failed and they wish to re-enter legal proceedings.

Here is a link to the Court rules concerning the implementation of the provisions of the Mediation Act, 2017.

Conclusion

The Mediation Act, 2017 is to be welcomed as it should allow more parties in dispute resolve their issues without the cost of going to full blown legal proceedings including a Court trial.

And if you are an employer it cannot do you any harm to insert a clause in your contract of employment providing for the use of mediation before instituting legal proceedings.