Mediation: An Alternative to Litigation for Personal Injuries Cases

Introduction

There are currently two specific processes in Ireland for dealing with personal injuries claims: an application to the Personal Injuries Assessment Board and, if the matter is not resolved at that stage, the issuance of legal proceedings through the courts.  However, with the lengthy delays and significant costs associated with litigation, there is a pressing need for swift, low-cost but fully effective justice in personal injuries claims.

Mediation is a viable and pragmatic alternative, and Vincent & Beatty LLP is currently handling one of the first shuttle mediation processes in a personal injuries case in the country.

What is Mediation?

The Mediation Act 2017 defines mediation as a “confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve a dispute”. Section 11 of the Act provides that all mediation agreements are binding unless expressly stated to be otherwise.

Notably, Part 3 of the 2017 Act introduces an obligation on both solicitors and barristers to advise their clients in respect of mediation as an alternative to litigation and before proceedings are brought. Furthermore, they must provide their clients with the names and addresses of specific mediators and advise their clients about the possibility of using mediation prior to issuing proceedings.

A statutory declaration must be sworn to this effect by a solicitor acting on behalf of the applicant prior to proceedings being issued, as evidence that their statutory obligation has been complied with.

Mediation as a Solution for Personal Injuries Cases

Mediation is beginning to gain traction in the area of personal injuries. In particular,  parties are increasingly beginning to avail of s. 15 of the Civil Liability and Courts Act 2004 to seek a court order compelling the other side to attend a mediation meeting (as seen in McManus v Duffy, Unreported HC, 4 Dec 2006).

Mediation, as a dispute resolution method, offers many advantages to parties to litigation.

Mediation has the potential to be more resource and cost-effective than litigation as parties are encouraged to reach a compromise without going to the steps of the court. It is a flexible process that can be tailored to fit each individual case. For example, the option of shuttle-mediation is available for particularly sensitive disputes, where separating the parties can prevent further escalation of the conflict.

Mediation is also a more collaborative way of resolving a dispute. Practice shows that presenting a lone figure during normal settlement talks serves to focus all of the energy on that figure alone, while alienating parties further. In mediation, on the other hand, parties are encouraged to compromise and find a mutually-workable solution.

Above all, what sets mediation apart from litigation in terms of personal injuries cases is its emphasis on face-to-face conciliation. This is a key function of the Mediator, who offers a non-judgmental presence and has the capacity to speak privately with each party and hold confidences.

Finally, parties can be comforted by the fact that the courts take a realistic approach by acknowledging that mediation is not a one-size-fits-all solution for personal injuries cases, particularly if the parties do not want to engage in it.

In Ryan v Walls [2015] IECA 214, Mr Justice Kelly (an ardent supporter of mediation) overruled the decision of the High Court to refer a case to mediation under s. 15 of the 2004 Act, stating that “the normal method of settling personal injury litigation is by face-to-face negotiation. That has not occurred in this case. The court should be slow to invoke a compulsory mediation procedure where the parties have not themselves endeavoured to bring about a settlement of the litigation in the normal way.”

Indeed, Mr Justice Kelly advises in Walls that mediation has the greatest prospect of success if it is sought immediately after the pleadings have been closed but prior to the commencement of a costly and time consuming discovery process.

Therefore, the courts’ position in Ireland remains as follows: if it is not possible for a matter to be settled by a traditional “without prejudice” settlement meeting, mediation should strongly be considered.

Conclusion

Mediation, as an alternative method of dispute resolution, can result in a practical reduction of costs and resources expended in personal injuries actions; that is, if it is engaged in tactically and willingly.