The Legal Status and Enforceability of Mediated Settlement Agreements
| Date | 01 January 2013 |
| Author |
The Legal Status and Enforceability of
Mediated Settlement Agreements
DR RONÁN FEEHILY1
Provision for mediation has been made in various pieces of Irish legislation.
In the area of family law it is provided for in the Judicial Separation and
the Children Act, 1997.
4
Each Act imposes a legal obligation on solicitors to
discuss with their clients the possibility of engaging in mediation as an alternative
to contentious family law proceedings.
The Labour Relations Commission offers a voluntary mediation process
where an external professional mediator assists employers and their employees
to resolve disputes when they are unable to reach agreement between them.
5
In the area of equality, the Director of Equality Investigations offers a voluntary
mediation service in disputes under the Employment Equality Act 1998
6
and
the Equal Status Act 2000.7 Similarly, the Department of the Environment
established a Private Residential Tenancies Board to deal with Landlord and
Tenant disputes. The Board deals with disputes to conclusion with appeals
to the Courts only on points of law. The Board’s Dispute Resolution process
includes a voluntary mediation service.8 The Civil Liability and Courts Act
2004, which deals primarily with personal injuries litigation, provides that
at the request of either party a court may at any time before trial direct that
the parties meet to discuss and attempt to settle the action in what is described
by the Act as a ‘mediation conference’.9 Similarly in the area of social inclusion,
provision has been made for the resolution of disputes by mediation.10
Under the rules governing the Commercial Court, a judge has the power
to adjourn the proceedings in order to allow the parties to consider whether
the dispute ought to be referred to mediation. This option can be exercised
at a very early stage at the Initial Directions Hearing, where the Commercial
1 Dr Ronán Feehily, Honorary Fellow of Commercial Law, Durham University
2 Judicial Separation and Family Law Reform Act 1989 (No.6 of 1989), s.6
3 Family Law (Divorce) Act 1996 (No.33 of 1996), s.6
4 Children Act 1997 (No.40 of 1997), s.20
5 See www.lrc.ie [Accessed on 27 September 2012]
6 Employment Equality Act 1998 (No.21 of 1998), s.78
7 Equal Status Act 2000 (No.8 of 2000), s.24(1)
8 Residential Tenancies Act 2004 (No.27 of 2000), s.164
9
Civil Liability and Courts Act 2004. See also Liam Kennedy and Aoife Gaughan
“Growth of Commercial Mediation” IBA Legal Practice Division, Mediation Committee
Newsletter April 2005
10
See for example s.19, Disability Act 2005 and s.55, Social Care Professionals Act 2005.
01 Feehily 2.indd 1 11/06/2013 10:24
2
RO NÁ N F EE HI LY
Court judge first considers the nature of the case and gives directions as to
the exchange of pleadings, to define the issues and to direct expert witnesses
to consult with each other. At that stage, it is open to the judge to adjourn
the proceedings for 28 days in order to allow the parties to consider whether
the matter could be satisfactorily resolved in mediation, conciliation or
arbitration. Even if the parties to the dispute themselves do not raise the
possibility of mediation, the Commercial Court possesses the power to direct
the parties to consider mediation.
11
In addition to such legislative provisions,
contracts frequently provide that the parties must first attempt to resolve
their dispute through the process of mediation, prior to issuing court proceedings
or employing the services of an arbitrator.
When mediation concludes with a settlement, the issue arises as to what
happens if one of the parties contends that no agreement exists or that the
agreement is unenforceable for some reason. With the growth of mediation,
the conflicts that can arise in such circumstances have given rise to a substantial
body of case law in other jurisdictions.12 While enforcement of mediated
settlement agreements does not currently appear to be a difficulty in Ireland,
as mediation is increasingly adopted as the process to resolve various forms
of disputes, the discussion below will have increasing importance.
The parties’ intentions, the mediation context, relevant statutory requirements
and principles of contract law are all relevant factors in determining the
legal status of mediated settlement agreements.13 The parties may reduce
their agreement to a ‘heads of agreement’ document and there may also be
a cooling-off period, or it can take the form of a formal comprehensive
signed agreement that will be binding and enforceable according to normal
contractual principles provided it is correctly drafted.
14
In the event of non-
compliance by one party, the other party cannot pursue the original course
of action, but can sue on the settlement agreement.
15
Similar to non-compliance
of an agreement to mediate, damages for breach, specific performance or
an injunction are possible remedies for non-compliance with the terms of
a mediated settlement agreement and the rules of law applicable to those
11
Rules of the Superior Courts (Commercial Proceedings) 2004 (s.20 of 2004), s.6(XIII).
While the court possesses the power to direct that parties consider mediation, it does
not have the power to compel mediation.
12 Regarding the US experience, see Edna Sussman “A Brief Survey of US Case Law on
Enforcing Mediation Settlement Agreements over Objections to the Existence or Validity
of such Agreements and Implications for Mediation Confidentiality and Mediator
Testimony” IBA Legal Practice Division Mediation Committee Newsletter, April 2006,
p.32
13
Laurence Boulle and Alan Rycroft, Mediation: Principles, Process, Practice (Butterworths,
1997), p.249
14 Ibid.
15
It is for this reason that a term was sometimes included in the mediated settlement
agreement that, in the case of non-compliance, the parties’ rights to pursue the original
course of action were reinstated. See Laurence Boulle and Miryana Nesic, Mediation:
Principles, Process, Practice (Butterworths, 2001), p.507
01 Feehily 2.indd 2 11/06/2013 10:24
To continue reading
Request your trial