The Mediation Act 2017 (the Act) imposes new obligations on solicitors, including a statutory declaration, and is expected to commence in January 2018.
Under the Act, practising solicitors are required, prior to issuing proceedings on behalf of a client, to:
Where a solicitor is acting on behalf of a client who intends to institute proceedings, the originating document by which proceedings are instituted, is to be accompanied by a statutory declaration made by the solicitor evidencing (if it be the case) that the solicitor has performed the obligations imposed on him or her under the Act in relation to the client and the proceedings to which the declaration relates. If the originating document is not accompanied by such declaration the court concerned shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the practising solicitor to comply with the obligation and provide the court with such declaration or, if the solicitor has already complied with the obligation, provide the court with such declaration.
Scope of the Act
The Act shall not apply inter alia to an arbitration within the meaning of the Arbitration Act 2010, proceedings in the High Court by way of judicial review or of seeking leave to apply for judicial review, and proceedings against the State in respect of alleged infringements of the fundamental rights and freedoms of a person.
The Rules of the Superior Courts are also due to be amended to reflect the Court’s discretion to take into account any unreasonable refusal or failure by a party to the proceedings to consider using mediation, and any unreasonable refusal or failure by a party to the proceedings to attend mediation in accordance with sections 16 and 21 of the Act, when considering awarding costs.