Ireland’s Mediation Adventure – A practitioner flying on “mutinous winds”

By mediators Sinéad Conneely,  Shane Dempsey, and Róisín O’Shea.

In referencing Shakespeare’s The Tempest throughout this piece, we acknowledge that there has always been a “rough magic” to the practice of mediation; something elemental about the ability to bring peace in the midst of “roaring war”. Yet peace itself, can sometimes be controversial and the magic of mediation is grounded in carefully honed professional skills.

What’s past is prologue

The Mediation Act 2017, “the Act” was a long time coming in Ireland, incubating for over a decade before being commenced in its entirety in January 2018. The Act represents a significant turning point for the Irish Civil Justice system and is very significant for mediation. This legislative framework applies to almost all forms of civil disputes (exceptions set out in section 3) providing the necessary support for the development of a vibrant mediation sector and firmly establishes the foundations for the development of mediation as a distinct profession. It offers users choice and autonomy while providing a clear map of the intersections between the two systems of mediation and litigation. At all times, even at the late stage when proceedings have commenced, the Act encourages disputants to step away from the courtroom and self-determine a solution in ways that reflect the 2008 EU Mediation Directive.

The Act defines mediation as having three main elements; The process is voluntary, confidential and facilitative. Section 2(1)(o) provides definitions for mediation, a mediator, and defines the output of mediation as a ‘mediation settlement’. Section 7 describes the commencement of mediation as the point when the ‘Agreement to Mediate’ is signed. Section 8 sets out the role of the mediator and section 9 enables the Minister to approve code(s) of practice. Section 10 clearly sets out what mediation confidentiality is and when it can be lifted. Section 11 is noteworthy in that it codifies self-determination, empowering the parties to decide when they have reached an agreement and whether they wish that agreement to be legally enforceable between them.

It is this section of the Act that has perhaps predictably created economic tensions between mediators and legal professionals. Two of the writers have practised mediation for over 11 years as of July 2021. We can draw from the experience of over 500 mediation cases in our private practice. Between January 2010 and December 2017, in excess of 80% of the cases our mediation firm had completed in those 8 years were referred by solicitors. The majority of these cases were family disputes including separations, divorces, maintenance and parenting negotiations. A striking and unexpected impact on our work, following the commencement of the Mediation Act, was a rapid dissipation from this steady flow of solicitor referrals to a trickle of approximately 5% of cases in 2018-2019. A subsequent upturn from mid 2020 to-date has been influenced by the pandemic and referrals from legal practitioners outside our geographical area. Interestingly, public awareness of mediation as a dispute resolution option grew steadily from January 2018 with online searches, digital marketing and word of mouth supplanting solicitor referral.  

The difficulties that have arisen in practice centre on end-of-relationship family disputes, particularly disputes between separating spouses who may choose mediation as the forum to agree a legally binding separation agreement. This has resulted in a challenge from the Irish Law Society who in a practice note addressed to the profession published in May 2020 (Law Society Gazette) sought to distinguish family mediation from any other form of mediation, a distinction that the Act does not make. The practice note stated that “…and practitio