On Monday 2 October the Mediation Bill 2017 was signed into law by the President and a commencement order is expected in the coming weeks. Once commenced, the Act will place on a statutory footing the obligation to consider mediation, and requires litigants to confirm to the courts that they have considered mediation.
Of particular interest to legal practitioners is section 14 which requires “practising solicitors”, prior to issuing proceedings, to advise clients to consider mediation as a means of resolving their dispute and provide clients with information on mediation services. Practising solicitors are required under the section to make a statutory declaration evidencing that their obligations under Section 14 have been properly fulfilled. This statutory declaration accompanies the originating document (e.g. Civil Bill, Summons or Originating Notice of Motion) and both are filed in the relevant court office.
In-house solicitors should be aware that the definition of “practising solicitor” in the Act is broad and therefore the obligations under section 14 of the Act equally apply to in-house solicitors, who have been admitted as solicitors, are on the roll of solicitors, provide legal services and hold a practising certificate (unless exempt by section 56 of the Solicitors (Amendment) Act 1994).
While some companies may exclusively outsource their litigation work to solicitor firms, other companies may expect their own in-house solicitor to initiate proceedings and therefore the requirements under section 14 should be reviewed carefully.
For further information on the general provisions of the Mediation Bill 2017, please see previous William Fry article here.
A link to the Mediation Bill 2017 as enacted, can be found here.
Contributed by Rebecca MacCann.
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