Enforceability of Mediation Agreements
On the 1st of January 2018 the Mediation Act, 2017 commenced. The Act was passed to encourage more disputes to be referred to mediation and in this regard introduced the following new initiatives:-
- Solicitors are to provide advice and information in relation to the issuing of proceedings in all litigation. Previously it had only been in family law proceedings that there was such an obligation.
- The Court has the facility to suggest that the parties consider the process of mediation. While this suggestion is not binding on the parties, it is usually very persuasive.
- The Court can take into account, when awarding costs, if one of the parties refused at an earlier stage, to engage in mediation.
In the area of family law in particular, mediation can be a very effective way of resolving disputes particularly as it gives the couple in question the opportunity to resolve matters relating to children and parenting issues as well as other sensitive issues.
It is important to note that pursuant to Section 11(2) of the Mediation Act, a mediation agreement will now be legally enforceable unless the agreement states to the contrary. Previously, it had been the case that a mediation agreement would only amount to a “memorandum of understanding” and was not legally binding.
The potential enforceability of mediation agreements (many of which could be facilitated by non-lawyer mediators who may not be aware of the dangers of facilitating an enforceable agreement) can be as follows:-
- If it is deemed that the mediation agreement is enforceable, it is possible that it will have been negotiated without full financial disclosure that the Court requires in order to make proper provision in the context of a divorce.
- As such the Court may have a difficulty in ruling such an agreement as an Order for Divorce i.e. there may be an enforceable agreement but one that cannot be ruled as a divorce.
- If the parties intend to obtain a Judicial Separation on foot of the mediation agreement, the Court may not be able to make such an order as the enforceable mediated agreement may well mean that the parties are already separated and that the mediated agreement may have the same status as a separation agreement. This would mean that the Court cannot rule the terms as a consent Judicial Separation. This would mean that the parties, if not living separate and apart for two years would have to wait for the two years to expire and seek to have matters dealt with in the context of a divorce.
Accordingly, in circumstances where the mediation would usually have been concluded without the parties having obtained independent legal advice it is very important that the mediated agreement contains a clause stating that the agreement is not intended to be legally binding and that the agreement will not become legally binding until such further steps are taken, i.e. full exchange of financial information and the translation of the agreement into a full binding agreement in the context of either a Judicial Separation or a Divorce.
If you have any queries regarding any family law matter please do not hesitate to contact either Brendan Dillon or Lorna McArdle on 01 2960666.