Injuries Board Mediation
2022 Act Reforms
The 2022 Act provides for the notification by the Board of a claimant’s application to the respondent and a request as to whether the respondent consents to mediation, assessment or both. ‘Mediation’ is defined in the Act as 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.
If a respondent states in writing in response to a notice within the period specified in the notice that he or she consents to mediation of the relevant claim or fails to so respond in that period, then the Board shall, arrange for mediation of that claim.
Where a respondent consents to mediation and/ or assessment of a relevant claim or is deemed to consent to assessment, that these are not considered to be an admission of liability with regard to the relevant claim.
No Mediation Required
The Board shall not be required to arrange for mediation of the relevant claim concerned (or, as appropriate, shall discontinue any such mediation which it has arranged) if any of following applies in relation to the relevant claim concerned.
- in its opinion, there does not exist, or there has not been previously entered into, in relation to the type of personal injury or injuries to which the relevant claim relates, a sufficient body of case law or, as the case may be, a sufficient number of settlements to which regard may be had by the assessors for the purpose of making such an assessment, or
- in its opinion, it would not be appropriate to do sobecause of the particular complexity of the issues that would require to be addressed were an assessment of the relevant claim to be made such as (without limiting the generality of this clause) issues involving the interaction between each of a number of injuries the claimant alleges he or she sustained in the accident or incident concerned or the interaction between one or more such injuries and any existing condition or disease the claimant suffered from or any injury he or she previously sustained, or
- in its opinion, it would not be appropriate to do sobecause aggravated or exemplary damages are bona fide (and not for the purpose of circumventing the operation of this Act) sought to be recovered in the relevant claim, or
- in its opinion, it would not be appropriate to do soin case the relevant claim arises out of a trespass to the person, because the making of an assessment of the claim by the means to which assessors are limited to employing by this Act would not respect the dignity of the claimant, or
- in its opinion, it would not be appropriate to do sobecause the gravity of any injury or illness of the claimant is such that, were proceedings to be brought in respect of his or her relevant claim, an early trial of the claim would, in the Board’s opinion, be ordered to be held to meet the contingency of the claimant’s dying before the time the claim would otherwise, in the ordinary course of events, come on for trial,
- in its opinion, the person purporting to act as a next friend, or as the case may be, a guardian of the claimant or a respondent has a conflict of interest in the matter, or otherwise would not be entitled to act as a next friend or guardian of the claimant or respondent were the relevant claim to be the subject of proceedings, and steps are unlikely to be taken in a timely fashion to secure an appropriate replacement for him or her, or
- in its opinion, the relevant claim falls within a class of relevant claims as respects which the Board has, with the consent of the Minister and the Minister for Justice, Equality and Law Reform, for the time being declared there to be other good and substantial reasons for its not arranging the making of such an assessment in respect of them, or
- the notice on the person or each of the persons who the claimant alleges in the application is or are liable to him or her in respect of the relevant claim cannot be served on, or given, or issued to the person in accordance with section 79, or
- the respondent has notified the Board of his or her intention not to accept the assessment when made, or
- in its opinion, the relevant claim falls within a class of relevant claims to which Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 20071 on the law applicable to non-contractual obligations (Rome II) applies, or
- in its opinion, the relevant claim falls within a class of relevant claims where a settlement has been negotiated for the benefit of a minor or person of unsound mind (including a dependant minor or person of unsound mind where the relevant claim arises from fatal injuries) to be approved by the court.
Mediation Process
The Board may, where it considers it appropriate—
- invite the parties to consider mediation as a means of attempting to resolve the relevant claim, and
- provide the parties with information about the objectives and benefits of mediation in attempting to resolve the relevant claim.
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.
The Board may make rules regarding the procedures to be followed for mediation.
Mediation of a relevant claim shall be made by appointed employees of the Board or such persons as may be appointed from the panel below.
A mediator shall—
- inquire fully into each relevant aspect of the relevant claim concerned,
- provide to, and receive from, each party such information as is appropriate, and
- generally make such suggestions to each party and take such other actions as he or she considers appropriate,
with a view to achieving the above objective.
Participation in mediation by the parties is voluntary, and a party may—
- withdraw from mediation at any time prior to the date of completion of the mediation, and
- be accompanied to the mediation, and assisted by a person (including a legal advisor) who is not a party to the relevant claim.
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 and where the Board considers it appropriate to do so, abandon an attempt to resolve a relevant claim by mediation.
Communications
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.
This does not apply to a communication or records or notes, or both, where disclosure—
- is necessary in order to implement or enforce a mediation settlement,
- is necessary to prevent physical or psychological injury to a party,
- is required by law,
- is necessary in the interests of preventing or revealing— the commission of a crime (including an attempt to commit a crime), the concealment of a crime, or) a threat to a party, or
- 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.
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.
Completion
As soon as practicable after the mediation is completed, the mediator shall prepare a report containing the following namely:
- a statement of what matters, if any, relating to the dispute are agreed by the parties to be matters of fact;
- 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
- 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).
The mediator shall, after preparing a report , furnish a copy of it to the Board.
Accepting Agreement & Order to Pay
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.
Where—
- the report furnished to the Board states that there is agreement between the parties and that the agreement resolves the relevant claim,
- a period of 10 days has elapsed from the date of the completion of the mediation, and
- 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 include provision for the monetary value, if any, which the respondent has agreed to pay to the claimant. An order to pay may include any outstanding charges payable to the Board by the respondent.
Where an order to pay has issued the Board shall not issue an ‘authorisation’.
Assessment if Mediation Fails
Where an attempt to resolve a relevant claim by mediation is unsuccessful (including where mediation has been abandoned , or if any of the parties responds within the period specified by stating that he or she does not wish to be bound by the agreement, and—
- where the respondent has given consent , and
- an assessment has not already been completed,
the Board shall refer the relevant claim for assessment.
Notwithstanding the above
- a claimant may withdraw an application in relation to the relevant claim
- 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 or
- the Board may arrange for the making of an assessment where the respondent notifies the Board of his or her consent to an assessment.
Panels of Mediators
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.
The Board may form a panel comprising the names of the persons who stand appointed. A person shall be appointed for such period as the Board may determine and his or her terms and conditions shall be such as the Board may determine from time to time.
A person appointed 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. He or she may resign. The Board may for stated reasons revoke an appointment.
A mediator must declare any potential conflict of interests . A mediator is excluded from acting as an assessor on a claim which they have mediated.