The success of mediation as an alternative method of dispute resolution is widely recognised. Following the commencement of the Personal Injuries Resolution Board Act 2022 on 14 December 2023, it is anticipated that mediation will become increasingly widespread as a means of resolving personal injury claims in Ireland.
Why Mediation?
Mediation affords the opportunity to manage a dispute in a confidential setting. It can be resorted to at any point, even after court proceedings have been commenced. If mediation takes place following the commencement of court proceedings, it will always be without prejudice to the litigation and everything that has occurred at mediation remains confidential.
The Mediation Act 2017 was commenced on 1 January 2018. Section 2 of the Act defines mediation as “a confidential, facilitative and voluntary process in which the parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve a dispute”. Importantly, either party may withdraw from the mediation at any stage.
It is the parties themselves who are in control of the process and who resolve their dispute, with assistance from the mediator. Section 6(9) provides that, “It is for the parties to determine the outcome of the mediation”.
What are the Stages in the Mediation Process?
There are several stages in the mediation process: the preparation phase, the opening phase, the exploration phase, the negotiation phase and the concluding phase.
What are the Benefits of Mediation?
The benefits of mediation to the parties to a dispute include, but are not limited to, the following:
The Personal Injuries Resolution Board Act
The Personal Injuries Resolution Board Act 2022 was commenced on 14 December 2023. The 2022 Act amends the Personal Injuries Assessment Board Act, 2003 and renames the Personal Injuries Assessment Board (“PIAB”) as the Personal Injuries Resolution Board (“PIRB”) to reflect the expansion of its remit.
The 2022 Act gives the Board the power to invite the parties to consider mediation as a means of resolving a personal injuries claim. First and foremost, it obliges the Board to provide the parties with information about the objectives and benefits of mediation.
Legally Binding Agreement via Mediation
In mediation, the parties can explore issues of importance such as the claim value, extent of injury, liability, negligence or future treatment requirements. Where there is agreement during mediation, a written agreement is signed by the parties and a ten-day cooling off period commences. The agreement then becomes legally binding and the Board issues an Order to Pay which has the same standing as a court order.
Claim Assessment
If mediation is unsuccessful, the Board will refer the claim for assessment, provided the respondent has consented to the assessment of the claim. If the respondent has not consented to the assessment of the claim, the claim will be released by the Board. It then becomes a decision for the claimant if they wish to pursue the claim through litigation.
Conclusion
The Board’s new focus on mediation will enhance its role and transform the resolution process for personal injury claims. Mediation is currently available for employer liability claims only, with motor liability claims and public liability claims expected to follow later this year.
The speed at which the mediation service is rolled out to these claims, and the overall success of the new service, is awaited with interest.
For Further Information
To find out more, please contact Avril Scally, Partner or Nicholas Moore, Solicitor in our award-winning Medical Negligence & Personal Injury Team.
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