The Mediation Act 2017 was commenced on 1 January 2018. The act imposes new obligations on solicitors and:
1) Places an obligation on solicitors to provide advice and information prior to the issuing of any proceeding. A statutory declaration is required to be provided to satisfy same,
2) The court has the facility to suggest that the parties consider the process of mediation, and
3) It allows the court the discretion to take into account, when awarding costs, any unreasonable refusal or failure by a party to the proceedings to consider using mediation.
For those practitioners practising in the area of family law, there are red-line points to be considered under the act. Before reviewing the legislation, it is important to remind ourselves about what mediation is, and how it applies to family law.
Mediation is a voluntary process for resolving disputes, where those in dispute meet with a third party who helps them to negotiate an agreed settlement. Family-law mediation provides a mechanism to help separating couples whose relationships have broken down to negotiate their own settlement, in terms of child custody and access, maintenance, and property rights.
Mediation in this forum is a more informal and flexible dispute-resolution process, with the mediator’s role being one that guides the parties to achieve their own settlement. This works successfully where you have two interested, engaged, and fully invested parties who wish to work to resolve their issues.
It is important to note that, where there is a legal context, a client should have access to legal advice, assistance or representation. Mediators do not give legal advice and, in essence, the agreement is not legally enforceable unless put into a legal format.
However, as practitioners, we need to be aware of the effect of the act on the enforceability of such mediated agreements:
1) Section 11(2) of the Mediation Act 2017 provides that “a mediation settlement shall have effect as a contract between the parties” unless it expressly states the contrary. It is advisable that mediated settlements or notes of understanding should not be legally binding until they are incorporated into a legally binding agreement, or otherwise. So if you wish the agreement not to be legally binding, this must be clearly expressed in the agreement.
2) Mediated settlements in family law are required to be ruled in court in either a judicial separation or divorce. A court will always retain its discretion to determine whether the settlement amounts to proper provision. In addition, the provisions of Section 11 (3) are important in that a court will not rule a mediated settlement where it finds that:
a. It doesn’t adequately protect the rights and entitlements of the parties and their dependents;
b. It is not based on full and mutual disclosure of assets; or
c. A party to the mediation has been overborne or unduly influenced by any other party in reaching the mediation settlement.
3) Where a mediation involves a child or children, a court shall be bound by section 3 (amended by section 45 of the Children and Family Relationships Act 2015) of the Guardianship of Infant Act 1964 regarding the best interest of the child.
4) Practitioners, when dealing with real or personal estate, or any legal proceedings, are restricted by section 58 of the Solicitors Act 1954, as amended.
Requirements of the act
So what does the legislation require of practitioners when advising a client? Solicitors must inform clients that mediation is a voluntary conflict-negotiation and resolution process where they can reach agreement. Clients should also have access to legal advice, be informed about the process by their solicitor, and be apprised of the outcome.
Because mediation settlements, in general, are intended to be binding – unless the parties agree to the contrary, and in circumstances in which best practice in family mediation is that clients should have access to legal advice – it is advisable to ensure that any agreement completed by way of mediation is not binding until it has been put into a legal format. It is important to emphasise the importance of seeking legal advice in advance of formal signing, and that, if one takes part in the process and does not seek appropriate legal advice, the client is at risk of not obtaining all their family-law rights and entitlements.
If parties do obtain legal advice during the process, all legal practitioners should ensure that their clients furnish them with the most current mediated agreement or up-to-date draft agreement, in order to be properly armed to fully advise on what has been discussed during the mediated process.
A statutory declaration is made by the practising solicitor, evidencing that the solicitor has advised the client about mediation services and its advantages.
The Law Society’s Child and Family Law Committee is of the view that practitioners should ensure that mediated agreements should specifically state that such agreements are not legally binding until further steps are taken to give binding effect to the mediation settlement. It is strongly recommended that such mediated agreements should contain the following clause:
“We are signing the mediation settlement in recognition of completion of our mediation. We understand that, in signing this, we are not entering into a legally binding and enforceable agreement, for which more steps must be taken to give binding effect to our mediation settlement.”
In summary, practitioners need to be aware of the above obligations that the act imposes on them, and especially the legally binding nature of the mediation settlement document itself – unless otherwise agreed.
The author acknowledges reference to the Legal Aid Board’s practice note on the enforceability of family or matrimonial mediated agreements (dated September 2019), and certain family law mediation articles published by Mason Hayes & Curran at www.mhc.ie.