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Signed: Ben Harper Date: 08/12/2021

Student Number: 20089107 Course: Bachelor of Arts (Hons)

Mediation is a voluntary process through which a neutral third party, known as a mediator, assists disputing parties to arrive at a mutually acceptable resolution to their disagreement, in a confidential setting (Monaghan & Pilkington, 2018). Mediation finds wide application in resolving legal conflicts within families and seeks to foster relationships beyond the conflict resolution process. This essay examines the vital role that family mediation plays in the Irish legal system, and specifically after the commencement of the Mediation Act 2017. It explores the contents of the act, its significance, positive and negative outcomes, and seeks to establish the extent to which the Act has transformed Irish Family law.

The Mediation Act 2017, which became law on 1st January 2018, was enacted to encourage the use of mediation, an alternative dispute resolution mechanism (ADR), as an efficient means of dispute settlement (Brennan, 2018). Mediation aims to provide parties to a dispute with a platform to collaboratively resolve their issues, under the guidance of a mediator, saving the time, cost and stress associated with more traditional legal proceedings. The involvement of a mediator is pivotal and ensures that parties follow a structured and fair process to resolve their disputes or disagreements. From a cost perspective, mediation is more affordable than traditional litigation. Prior to the introduction of mediation, ADR in Irish legal proceedings was rarely employed to resolve disputes. In fact, only 0.7% of cases in the courts used mediation as the primary form of dispute resolution. This lack of reliance on ADR created significant financial and logistical obstacles for the courts and aggravated the backlog of cases. These limitations rendered mediation inaccessible to many Irish people. Studies have suggested that the adoption of this Act has the possibility of making positive changes to the Irish legal system by aligning the country with more established jurisdictions, which are heavy on ADRs (Carroll, 2017).

The implementation of the Mediation Act 2017 marked a significant improvement for the promotion of mediation in Irish legal proceedings. It provided legal backing to mediation as a recognized ADR method for resolving conflicts in Ireland. Prior to the enactment of the law, many questions were raised regarding the efficacy of mediation, and its adoption was more often experimental and inconsistent. With the backing of the Act, mediation has become more formalized and is a more considered approach in legal matters. Countries such as the United States, have a high success rate when it comes to the adoption of mediation, with a success rate of 80% in cases (Bramley, 2016). It is hoped that the implementation of the Act and the partnership between the mediator and the parties will facilitate the settlement of conflicts as they emerge, bringing stability, dignity, and preserving relationships to the legal process. The future of Family mediation in the Irish legal system seems to lie in the integration of mediation in all dispute resolution mechanisms, ensuring a fair, just, and efficient legal system for all parties involved.

The Mediation Act of 2017 clearly outlines the mediator's role in conflict resolution. Their primary task is to aid opposing parties in reaching a mutually agreed solution to their issues. Mediation is a two-party process, and a mediator ensures that both parties can reach a consensus. The mediator cannot put forth a proposal unless both parties request it. This role may seem simplistic to some, but it plays a vital role in reducing tensions and animosity between parties. Though mediators might seem to have it easier compared to solicitors, they have to navigate through complex legal facts and emotions to enable a more peaceful resolution.

The 2017 Act provides that all communication, notes, and records pertaining to mediation must remain confidential. These statements and documents cannot be used in court proceedings. This measure ensures that the parties' privacy is safeguarded, and sensitive information does not get exposed. However, this confidentiality may not apply if it is necessary to implement a settlement reached via mediation, or if it is legally required to prevent harm to any party. The new confidentiality measures under the Mediation Act provides members of the public seeking help with familial issues with the necessary privacy to resolve such matters. They get to avoid court proceedings that can make them feel humiliated and shamed.

The Mediation Act also urges mediators to comply with a code of practice that outlines best practices while handling familial disputes. The code of practice stipulates the Continuing Professional Development (CPD) requirements, ethical standards, procedures, and dealing with children's voices in mediation. The code of practice creates a standard to which mediators must adhere. Before the Act, the profession of mediation was hardly heard of, but this regulation has created a set standard for mediators to practice competently. These measures are necessary as dealing with people in vulnerable emotional states requires the highest ethical standard. Conflict resolution should seek to help people become more stable, not air their dirty laundry in a public arena.

In a nutshell, the Mediation Act of 2017 seeks to create a private and intimate place where issues can be resolved through peaceful and mutually agreed solutions. Mediations provide parties with privacy, confidentiality, and an opportunity to reach amicable agreements rather than engage in expensive and public court proceedings. Mediators work hard to navigate through legal facts and emotions to enable happier family solutions.

Building on the previous point, there are some concerns regarding the effectiveness of the Mediation Act 2017, particularly with regards to the establishment and running of the Mediation Council. There were initial fears about how the Council would secure the necessary funding to keep it running. Although the Act provided for the creation of a group overseeing mediators, it was unclear when and if a Council needed to be established in Ireland. Moreover, the Act did not specify who would shoulder the fees needed to keep the Council running. This could discourage parties from pursuing mediation, as they already have to pay for the mediator's fee and other costs associated with resolving disputes.

Many stakeholders were initially apprehensive about the Council's potential impact on the practice of mediation, which is primarily driven by parties working towards a mutually agreed resolution. They worried that unnecessary regulations and overheads could detract from the relaxed and client-focused nature of the process. However, the Act's introduction was still viewed as a positive development in enhancing public access to justice, a sentiment endorsed by the Chief Justice at the time.

The Act secured the essence of mediation by establishing voluntary collaborative agreements that afford disputing parties greater control over the process. It builds upon the foundation established by previous legislation and augments the case for mediation as a preferred alternative to litigation. Although mediation is not a panacea for all family law disputes, the legislation encourages parties to try resolving conflicts without resorting to expensive court battles. Statutory obligations also incentivize solicitors to recommend mediation to their clients.

While mainstream mediation in Ireland has yet to reach the levels of the United States and other countries, there are signs of progress. The creation of governing bodies and the legal obligation for solicitors to suggest mediation as an option illustrate the shift towards embracing conflict resolution methods. As the Irish State continues to create a conducive environment for mediation, it may well become the go-to solution for resolving disputes in the future.

Reference

The Law Society of Ireland has published a legal guide on dispute resolution, which includes information on mediation. The guide can be accessed on the Law Society's website. Additionally, the Mediation Act of 2017 is an important piece of legislation in Ireland that deals with alternative dispute resolution.

In a 2017 article in the Irish Jurist, Garret Sammon discusses the challenges that mediation policy in Ireland faces. The article raises important questions about how to improve the implementation of mediation as an effective tool for dispute resolution.

Another article on family mediation in the wake of the Mediation Act 2017 was published in the International Journal of Family Law in 2020. The authors, Sinéad Conneely, Shane Dempsey, and Róisín O'Shea, discuss how mediation can be used to resolve family disputes in a practical setting.

The Mediation Act of 2017 is a key piece of legislation in Ireland that seeks to promote alternate dispute resolution. It establishes a legal framework for mediation, including procedures for initiating and conducting mediation, confidentiality rules, and the enforceability of agreements reached through mediation.