Personal Injuries Resolution Board Act 2022
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Mediation | ||
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9. The Principal Act is amended, in Part 2, by the insertion of the following Chapter after Chapter 1: | ||
“Chapter 1A | ||
Mediation | ||
Application and definitions | ||
18A. (1) This Chapter applies to— | ||
(a) a relevant claim in respect of which an application was, before the commencement of this section, made under section 11 where— | ||
(i) an authorisation has not issued in respect of the relevant claim concerned, and | ||
(ii) neither the claimant nor any of the respondents have— | ||
(I) responded to a notice served in accordance with section 30, nor | ||
(II) been deemed to have accepted or not accepted, as the case may be, an assessment in accordance with section 31, | ||
and | ||
(b) a relevant claim in respect of which an application was, on or after the commencement of this section, made under section 11. | ||
(2) In this Chapter— | ||
‘date of the completion of the mediation’ means— | ||
(a) the date that the document referred to in section 18C(1)(b) is signed by each of the parties, or | ||
(b) where the document is signed by the parties on different dates, the last of those dates; | ||
‘mediation’ means a confidential, facilitative, and voluntary process in which parties to a relevant claim, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the relevant claim; | ||
‘mediator’ has the meaning assigned to it by section 18B(4). | ||
Mediation process | ||
18B. (1) Notwithstanding anything contained in this Part the Board may, where it considers it appropriate— | ||
(a) invite the parties to consider mediation as a means of attempting to resolve the relevant claim, and | ||
(b) provide the parties with information about the objectives and benefits of mediation in attempting to resolve the relevant claim. | ||
(2) The objective of mediation, in relation to a relevant claim, is to have the claim resolved by agreement reached by the parties and the Board shall, in order to promote engagement in the mediation process, ensure that the objective is understood by each of the parties. | ||
(3) Where each of the parties state that he or she consents to the relevant claim being the subject of mediation, the Board shall arrange for the claim to be the subject of mediation under this Chapter. | ||
(4) Mediation of a relevant claim shall be made by— | ||
(a) such employees of the Board for the time being assigned the performance of functions under this Chapter as the Board may direct, or | ||
(b) such persons as may be appointed under section 18D, | ||
each of whom, in this Chapter, shall be referred to as a ‘mediator’. | ||
(5) A mediator shall— | ||
(a) inquire fully into each relevant aspect of the relevant claim concerned, | ||
(b) provide to, and receive from, each party such information as is appropriate, and | ||
(c) generally make such suggestions to each party and take such other actions as he or she considers appropriate, | ||
with a view to achieving the objective referred to in subsection (2). | ||
(6) Participation in mediation by the parties is voluntary, and a party may— | ||
(a) withdraw from mediation at any time prior to the date of completion of the mediation, and | ||
(b) be accompanied to the mediation, and assisted by a person (including a legal advisor) who is not a party to the relevant claim. | ||
(7) The Board may, prior to the date of completion of the mediation, where the mediator has failed to furnish his or her report within the period specified by rules under section 18F and where the Board considers it appropriate to do so, abandon an attempt to resolve a relevant claim by mediation. | ||
(8) Where the Board abandons an attempt to resolve a claim by mediation under subsection (7), section 18C(6) shall apply. | ||
(9) The Board shall not be required to arrange for mediation of a relevant claim where there are 2 or more respondents as respects the relevant claim and one or more of them— | ||
(a) makes a statement in writing of the kind referred to in section 14(1)(b)(i), or | ||
(b) is a respondent on whose part a failure of the kind referred to in section 14(1)(b)(ii) occurred in relation to the relevant claim. | ||
(10) Subject to subsection (11), all communications (including oral statements) and all records and notes relating to a mediation including a report under section 18C shall be confidential and shall not be disclosed in relation to an assessment made under section 20 or any proceedings before a court or otherwise. | ||
(11) Subsection (10) shall not apply to a communication or records or notes, or both, where disclosure— | ||
(a) is necessary in order to implement or enforce a mediation settlement, | ||
(b) is necessary to prevent physical or psychological injury to a party, | ||
(c) is required by law, | ||
(d) is necessary in the interests of preventing or revealing— | ||
(i) the commission of a crime (including an attempt to commit a crime), | ||
(ii) the concealment of a crime, or | ||
(iii) a threat to a party, | ||
or | ||
(e) is sought or offered to prove or disprove a civil claim concerning the negligence or misconduct of the mediator occurring during the mediation or a complaint to a professional body concerning such negligence or misconduct. | ||
(12) Evidence introduced into or used in mediation that is otherwise admissible or subject to discovery in proceedings shall not be or become inadmissible or protected by privilege in such proceedings solely because it was introduced into or used in mediation. | ||
Mediation outcome and report | ||
18C. (1) As soon as practicable after the mediation is completed, the mediator shall prepare a report containing the following namely: | ||
(a) a statement of what matters, if any, relating to the dispute are agreed by the parties to be matters of fact; | ||
(b) a summary in writing, signed by the parties, of the matter or matters, if any, whether they go in whole or part to resolving the dispute or not, agreed to by the parties; and | ||
(c) relevant particulars in relation to the conduct of the mediation (including particulars in relation to the number and duration of sessions held by the mediator and the persons who participated in any such session or sessions), and a list of any documents submitted to the mediator (but without disclosing any of their contents). | ||
(2) The mediator shall, after preparing a report under subsection (1), furnish a copy of it to the Board. | ||
(3) Notwithstanding that, following a mediation, the parties have signed an agreement which resolves the dispute concerned, each of the parties may, not later than 10 days from the date of the completion of the mediation concerned, notify the mediator and the Board in writing that he or she no longer accepts the agreement and does not wish to be bound by it. | ||
(4) Where— | ||
(a) the report furnished to the Board under subsection (2) states that there is agreement between the parties and that the agreement resolves the relevant claim, | ||
(b) a period of 10 days has elapsed from the date of the completion of the mediation, and | ||
(c) in that period none of the parties to the agreement has informed the Board that he or she no longer accepts that agreement, | ||
the Board shall proceed to issue an order to pay pursuant to section 38 to include provision for the monetary value, if any, which the respondent has agreed to pay to the claimant. | ||
(5) Where an order to pay has issued in accordance with subsection (4) the Board shall not issue a document referred to in this Act as an ‘authorisation’. | ||
(6) Where an attempt to resolve a relevant claim by mediation is unsuccessful (including where mediation has been abandoned under section 18B(7)), or if any of the parties responds within the period specified in subsection (3) by stating that he or she does not wish to be bound by the agreement, and— | ||
(a) where the respondent has given consent under section 14(1)(c), and | ||
(b) an assessment has not already been completed, | ||
the Board shall refer the relevant claim for assessment under section 20. | ||
(7) Notwithstanding subsection (6)— | ||
(a) a claimant may withdraw an application in relation to the relevant claim under section 47(1), | ||
(b) the Board may not arrange for the making of an assessment where the respondent has notified the Board of his or her intention not to accept an assessment under section 17(1)(b)(vii), or | ||
(c) the Board may arrange for the making of an assessment under section 20 where the respondent notifies the Board of his or her consent to an assessment. | ||
Appointment of mediators | ||
18D. (1) The Board may from time to time appoint such and so many persons, not being members of staff of the Board, as it considers appropriate to carry out the mediation functions assigned to them by the Board. | ||
(2) The Board may form a panel comprising the names of the persons who stand appointed under subsection (1). | ||
(3) A person appointed under subsection (1) shall be appointed for such period as the Board may determine and, subject to subsection (4), his or her terms and conditions shall be such as the Board may determine from time to time. | ||
(4) A person appointed under subsection (1) shall be paid such fees and expenses as the Board, with the consent of the Minister and the Minister for Public Expenditure and Reform, may determine from time to time. | ||
(5) A person appointed under subsection (1) may, by notice in writing addressed to the Board, at any time resign from his or her appointment and his or her resignation shall take effect on the date on which the Board receives the notice, or the date stated in the notice, whichever is the later. | ||
(6) The Board may for stated reasons revoke an appointment under subsection (1). | ||
(7) Neither the Public Service Management (Recruitment and Appointments) Act 2004 nor the Civil Service Regulation Acts 1956 to 2005 shall apply to a person appointed under this section. | ||
Provisions relating to mediators | ||
18E. (1) In respect of a matter dealt with by him or her under this Chapter, a mediator shall— | ||
(a) declare to the parties at the outset of dealing with the matter any potential conflict of interest of which he or she is aware or ought to reasonably be aware, and | ||
(b) maintain the confidentiality of the proceedings concerned and shall not disclose any report prepared by him or her under section 18C otherwise than in accordance with that section. | ||
(2) Where a declaration referred to in subsection (1)(a) is made to the parties then, unless each of the parties agree to the mediator continuing to deal with the matter, the Board shall appoint another mediator to deal with the matter. | ||
(3) Where a mediator has, in respect of a relevant claim, participated in a mediation he or she shall not— | ||
(a) be an assessor or a retained expert in respect of the relevant claim, or | ||
(b) otherwise participate in the assessment of the relevant claim. | ||
(4) Subject to any rules under section 18F, the manner in which a mediation is conducted shall be at the discretion of the mediator concerned but it shall be the duty of that mediator to ensure that the mediation is conducted without undue formality. | ||
Power of the Board to make procedural rules relating to mediation | ||
18F. (1) Subject to the provisions of this Chapter, the Board may make rules concerning the procedures to be followed under this Chapter. | ||
(2) Without prejudice to the generality of subsection (1), rules under this section may— | ||
(a) specify the period within which— | ||
(i) a mediator shall be assigned to deal with a relevant claim referred to the Board, | ||
(ii) a mediator shall furnish his or her report under section 18C to the Board, | ||
(b) specify any other time periods that the Board considers appropriate for the purposes of this Chapter, | ||
(c) subject to section 18B(10), specify how the confidentiality of the mediation process shall be maintained within the Board, | ||
(d) subject to section 18E(3), specify by which means mediation under this Chapter and an assessment under section 20 shall be independent and separate from each other, | ||
(e) specify that the Board may facilitate the mediation process to take place other than in person, including by way of telephone or other electronic means.”. |