1. Implications for your practice
The Mediation Act 2017
Implications for your practice

2. Presentation Outline Introduction Definitions and Scope
Mediator Obligations
Agreements to Mediate
Confidentiality
Voluntariness
Codes of Practice / Mediation Council

3. What are the implications for my practice?

5. Is it Perfect? “It is legislation after all…”
Please some of the people some of the time…
Is it Perfect?
“It is legislation after all…”

6. What is does not do Define what exactly it applies to
Set out training / accreditation standards
Give the MII any particular role… (yet!)
Put any funding towards mediation
 Your observation here 

7. Presentation Outline Definitions and Scope Mediator Obligations
Agreements to Mediate
Confidentiality
Voluntariness
Codes of Practice

9. S.2(1)- Definitions
“mediation” means a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute;

10. S.2(1)- Definitions
“mediation” means a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute;

11. S.2(1)- Definitions
“mediator” means a person appointed under an agreement to mediate to assist the parties to the agreement to reach a mutually acceptable agreement to resolve the dispute the subject of the agreement;

12. S.2(1)- Definitions
“mediator” means a person appointed under an agreement to mediate to assist the parties to the agreement to reach a mutually acceptable agreement to resolve the dispute the subject of the agreement;

13. “this Act shall apply to any civil proceedings”
Scope – Section 3
“this Act shall apply to any civil proceedings”
S6(1): “The parties to a dispute may engage in mediation as a means of attempting to resolve the dispute.”

14. Scope – Section 3 WRC Revenue Arbitration Act Domestic Violence Acts
Child Care Acts

15. Presentation Outline Mediator Obligations Agreements to Mediate
Definitions and Scope
Mediator Obligations
Agreements to Mediate
Confidentiality
Voluntariness
Codes of Practice

16. Mediator Obligations
To give general reasons for withdrawal in writing & return portion of fees
Not to make fees contingent on outcome
To manage conflicts of interest
To give details of qualifications etc.
To act with “impartiality and integrity and treat parties fairly”
“May” make proposals if requested.
“make every reasonable effort” to minimise costs etc.

17. Agreements to Mediate
the manner in which the mediation is to be conducted;
the manner in which the fees and costs of the mediation will be paid;
the place and time at which the mediation is to be conducted;
the fact that the mediation is to be conducted in a confidential manner;
the right of each of the parties to seek legal advice;
the manner in which the mediation may be terminated.

18. Fees & Costs Costs to be shared equally
Unless provided otherwise in Agreement to Mediate
Agreement to Mediate must provide the manner in which the fees and costs of the mediation will be paid anyway, so….

19. Presentation Outline Confidentiality Definitions and Scope
Mediator Obligations
Agreements to Mediate
Confidentiality
Voluntariness
Codes of Practice

20. Confidentiality What is the story with third parties?
Is there a “Mediator Privilege”?
Not really, so…

21. Presentation Outline Voluntariness Definitions and Scope
Mediator Obligations
Agreements to Mediate
Confidentiality
Voluntariness
Codes of Practice

22. Voluntariness
My Solicitor said it would look bad if I was not seen to be trying this…

23. “Participation in mediation shall be voluntary at all times.” S. 6(2)
Voluntariness
Lawyer encouragement
Court encouragement
Information Sessions

24. Is this really the right way?
Referral to Mediation: Solicitor Obligations
Is this really the right way?

25. Court referral to mediation

26. Mediation Information Sessions
Family and Succession
“Available at a reasonable cost and in suitable locations.”
Who should provide them?

27. Codes of Practice / Mediation Council
Presentation Outline
Definitions and Scope
Mediator Obligations
Agreements to Mediate
Confidentiality
Voluntariness
Codes of Practice / Mediation Council

28. Codes of Practice

29. Mediation Council