The Mediation Act 2017 and the advantages of mediation for claimants who have suffered catastrophic injuries
The Mediation Act was signed into law on 2nd October 2017 and its underlying objective is to “promote mediation as a viable, effective and efficient alternative to court proceedings” and to promote increased awareness and use of mediation as a method of alternative dispute resolution. Mediation can be used even if proceedings have been issued and the Act has been designed so that mediation will co-exist alongside the court system.
The Act places the obligation to consider mediation on a statutory footing and requires litigants to confirm to the Courts that they have considered mediation.
What is Mediation?
The Act defines mediation as 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 a dispute. It is a collaborative process which offers a valuable opportunity to individuals to resolve disputes by way of negotiation and agreement either before court proceedings are initiated or before those proceedings come to trial.
Mediation can be particularly effective in complex and serious cases such as claims for catastrophic or serious spinal injury*, birth injury* and brain injury*.
Obligations on Solicitors to advise their clients about mediation
Section 14 requires practicing solicitors to advise clients to consider mediation as an alternative to court proceedings. For this purpose, they must provide clients with information on mediation services, including details of mediators, information about the advantages and benefits of mediation, and information on confidentiality obligations and the enforceability of mediation settlements. This advice must be in writing and solicitors are required to swear a Statutory Declaration confirming that these obligations have been discharged in relation to the client and the proceedings to which the declaration relates. The Statutory Declaration must be filed in Court when proceedings are being issued. If the declaration is not filed, the Court can adjourn the proceedings until the solicitor complies with the requirements.
Who is the Mediator and what is their role?
The mediator is a neutral person who has received training in the process of mediation to help the parties to try to negotiate the resolution of the dispute. Both parties will agree on who the mediator will be and in personal injury cases, the mediator is often a Senior Counsel who has extensive experience practising in that area.
The role of a mediator is to assist parties to a mediation agreement to reach a mutually acceptable agreement to resolve the dispute or to reach a settlement agreement in the case. The mediator will be given the relevant documents and expert reports in the case in advance of the meeting. In a case for compensation for catastrophic injuries, the mediator will receive copies of the court paperwork which is called the pleadings as well as copies of reports from experts such as the rehabilitation consultant, the occupational therapist, the nursing consultant, the physiotherapist and vocational assessor so that they are fully aware of the nature of the injury and the potential level of compensation that could be awarded in Court if the case were to go to trial.
Section 8 of the Act sets out the steps to be taken by a mediator prior to the commencement of mediation, including the requirement that the mediator must give a copy of any code of practice to which he or she adheres to the parties so that they are informed of the standards to which their mediator has committed.
The Agreement to Mediate
As per section 7 of the Act, before the commencement of mediation the parties and the proposed mediator must sign an “agreement to mediate”. The agreement must set out:
- 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;
- subject to section 6(6) of the Act, the manner in which the mediation may be terminated.
Is mediation confidential?
The Act provides that confidentiality of the mediation process enjoys statutory protection. Section 10 of the Act provides that all communications (including oral statements) and all records and notes relating to the mediation remain confidential. Any such statements or records provided for the purposes of mediation will not be disclosed in any proceedings before a Court. It may also lead to cases of a confidential nature concluding at the mediation stage where parties may not want details of a sensitive nature being heard in open court.
What are the advantages of mediation in personal injuries cases?
Litigation can often be a difficult and stressful process for claimants, particularly for those who have suffered a catastrophic or life changing injury.
Mediation offers many advantages to parties to litigation as both sides are encouraged to reach a compromise without going to a full hearing in Court. It is a flexible process that can be tailored to fit each individual case. The mediator is a skilled professional whose aim is to try and secure an agreement between the parties in a non-adversarial environment. The mediator can engage with the parties both together and separately to try and narrow the issues and bring the parties towards a resolution. It can also be a more cost-effective way of resolving a case as it saves on the legal costs of proceeding with a full trial of the case.
Mediation can be particularly effective in cases for claimants who have suffered life-changing injuries such as a spinal injury, brain injury or birth injury as these cases are more challenging and complex than other personal injury cases and require extra care, time and skill and achieving a good outcome.
We at McMahon Goldrick Solicitors pride ourselves on the standard of care we offer to our clients. We act exclusively for individuals and families that have been affected by spinal cord injury, traumatic brain injury and birth injury resulting in permanent disability. Please, as always, email or telephone us with any queries on a non-committal basis.
