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This article was co-authored by Ella Kelly, Trainee Solicitor.
On 8 May 2024 the Irish Injuries Resolution Board’s mediation service was extended for public liability along with employers’ liability personal injury claims. According to Dara Calleary, Minister of State for Trade Promotion, Digital and Company Regulation, "this is part of the work of the government’s Action Plan for Insurance Reform which set as a primary goal the enhancement and reform of the then Personal Injuries Assessment Board which has been achieved through the Personal Injuries Resolution Board Act 2022.”
What is mediation?
Mediation is a form of alternative dispute resolution (ADR) introduced under the Mediation Act 2017. It provides parties with the option to resolve a claim outside of the court system and is a confidential and voluntary process. Mediation involves a mediator liaising with parties to reach an agreement. Mediators are accredited and independent and they are typically experienced litigators. If an agreement is not reached, the legal rights of the parties are unaffected and the matter can proceed through the court system.
Why mediate?
- Time efficiency – mediation is often more time efficient than court proceedings as claims tend to be resolved at an earlier stage, and in some cases, pre-litigation. For example, Circuit Court claims generally take between 12 to18 months to resolve and High Court Claims can generally take over two years. The Injuries Resolution Board estimates the mediation process to be completed within three months.
- Less expensive as it can save the legal costs of litigation.
- The mediation process is confidential.
- Legally binding agreements – a mediation agreement has the same enforcement as a court order.
- Mediation is voluntary; all parties must consent.
Reform under the Personal Injuries Resolution Board Act 2022
The Personal Injuries Resolution Board Act 2022 introduced changes to the Injuries Board, now known as the Injuries Resolution Board. A welcome and notable change for insurers is the introduction of a new mediation service. Parties to a dispute will now be given the option of availing of mediation from the outset of the claims process. The Act was commenced on 14 December 2023.
Types of claims that can be mediated
The Injures Resolution Board currently provides mediation for employers’ liability and public liability claims. It plans to expand the service to motor claims later in 2024.
Cost
There is no additional cost if parties opt into the mediation service provided by the Injuries Resolution Board. This differs from mediation that occurs after the commencement of proceedings, where there are a number of costs involved.
Assessment
If the parties do not wish to engage in mediation, they may proceed to decline or consent to assessment as usual. Should they also agree to mediation then mediation occurs first. If no agreement is reached, the claim proceeds to assessment.
Process
When applying to the Injuries Resolution Board, a claimant can opt into the mediation service. The respondent(s) will then be given the option to consent to mediation.
The Injuries Resolution Board have a panel of experienced mediators. They will generally communicate with both the claimant and respondent(s) over the phone. The parties involved do not have to directly communicate with one another. While parties do not need a legal representative for the mediation, they can choose to have one to either accompany or represent them.
If an agreement is reached, both parties must sign an agreement. A statutory 10 day cooling off period follows. After 10 days, if neither party has invoked the cooling off period, the agreement becomes legally binding. The Injuries Resolution Board will then issue an order to pay.
Parties can withdraw from the mediation process at any stage without impacting their legal rights. Should an agreement not be reached, the discussions during the mediation are confidential and cannot be used in later court proceedings.
Conclusion
The introduction of a mediation service by the Injuries Resolution Board is a welcome and positive step forward for insurers. It encourages a focus on alternative, voluntary and early resolution to claims without necessarily having recourse to an adversarial litigation system. Mediation at the Injuries Board stage can reduce legal spend, the life cycle of the claim and therefore the overall cost of the claim for insurers.
It may also be a preferred option for dispute resolution where the parties wish to maintain confidentiality over the terms of any agreement as opposed to the open and public nature of the courts.
The fact that the mediation service by the Injuries Resolution Board comes at no extra cost makes this a cost effective option for resolving claims where the parties wish to save both time and money.
Ireland