“The Mediation Act (the “Act”), which was signed into law on 2 October 2017, places a new statutory obligation on litigants to consider mediation as a means of resolving a dispute. It is due to commence in the coming weeks. This is a welcome development in so far as it will relieve the backlog of cases currently before the courts and will significantly reduce time and costs involved in resolving a dispute for those who engage in the mediation process.
Obligation to Advise Parties to Engage in Mediation
Prior to issuing court proceedings, the Act requires a practising solicitor to advise the client to consider mediation as a means of attempting to resolve the dispute and to provide the client with information in respect of mediation services and the advantages of engaging in mediation. In the event that court proceedings nonetheless commence, the practising solicitor will have to swear a statutory declaration to the effect that this obligation was complied with. If, for any reason, the practising solicitor fails to comply with this obligation, the court has the power to adjourn the proceedings for such period as it considers reasonable to facilitate the solicitor to comply with the obligation. Importantly, in-house solicitors are considered “practising solicitors” for the purposes of the Act and so too must ensure compliance with this obligation.”