Mediation Bill 2017: Second Stage

Question proposed: "That the Bill be now read a Second Time."

I am very pleased to have the opportunity to introduce the Mediation Bill 2017. I look forward to our discussion of its provisions and support from all sides of the House for its early enactment. Its general objective is to promote mediation as a viable, effective and efficient alternative to court proceedings, thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress and acrimony that often accompany court proceedings. Therefore, the Bill also forms part of the Government's overall strategy to tackle the issue of legal costs.

Support for the development of mediation as an alternative to court proceedings has been building in recent years. In its 2010 report entitled, Alternative Dispute Resolution: Mediation and Conciliation, the Law Reform Commission reviewed the development and effectiveness of alternative dispute resolution, ADR, mechanisms and recommended the enactment of legislation to underpin such processes. The Bill incorporates many of the commission's recommendations on mediation. Meanwhile, revised rules of the superior courts which facilitate and encourage the referral of disputes to a process of mediation or conciliation have also come into operation.

Before turning to the main provisions of the Bill, I would like to make some general points. First, "mediation" is defined as a confidential, facilitative and voluntary process in which the parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve their dispute. I emphasise the word "voluntary" in this context: mediation is and under the legislation will remain a voluntary process. Moreover, while the Bill seeks to promote mediation as an effective and viable means of resolving disputes, it also recognises that it would not be an appropriate mechanism for resolving certain proceedings such as claims against the State for alleged infringements of fundamental rights, proceedings concerning children under the child care Acts or proceedings under the domestic violence Acts. These exceptions and some others are outlined in section 3.

Part 3 of the Bill contains two key provisions that impose obligations on solicitors and barristers in respect of mediation. Put simply, the Bill requires solicitors to advise their clients to consider the use of mediation as a means of settling the dispute before embarking on court proceedings and to provide them with information on available mediation services. The Bill makes a similar provision in relation to barristers that will apply if and when in the future barristers are permitted to issue proceedings directly on behalf of clients. In order to ensure this key requirement is given effect in practice, the Bill requires solicitors to make a statutory declaration that the obligations placed on them by this legislation have been respected.

I should add that a new Part was inserted on Committee Stage in the Dáil comprising amendments to the Guardianship of Infants Act 1964, the Judicial Separation and Family Law Act 1989 and the Family Law (Divorce) Act 1996. The purpose of the new Part is to ensure consistency between the mediation related provisions contained in these Acts and the provisions of this legislation.

Section 12 of the Bill makes provision for a mediation council. This provision which did not form part of the general scheme of the Bill stems from submissions received and observations made by the Oireachtas Joint Committee on Justice and Equality on a regulatory framework for the mediation sector. The mediation sector is made up of a diverse range of bodies. For example, seven such bodies attended the public hearings held by the joint committee, while submissions were received from several other interested parties. For this reason, the Bill does not set out to impose a rigid regulatory structure on the sector. Instead, it provides for the possible future establishment of a body to be known as the Mediation Council of Ireland on condition that certain conditions are met.

Section 12 provides that where, at some future date, the Minister for Justice and Equality is satisfied that a body complies with the minimum standards set out in the Schedule and is, at the same time, sufficiently representative of the various mediation interests involved in the mediation sector, he or she may, following a consultation process, make an order declaring that that body will be recognised for the purposes of the legislation as the Mediation Council of Ireland. The council, if and when established, would be conferred with the functions set out in paragraph 1 of the Schedule. The intention is that the council would be self-financing.

I now turn to the main provisions of the Bill. Section 1 makes provision for the entry into operation of the Bill. While it is intended that the general provisions on mediation will enter into operation at the earliest opportunity following enactment, the commencement of sections 12, 13, 15 and 23 will require the making of specific orders at a later date.

Section 2 contains definitions for the purposes of the Bill.

Section 3 provides that the Bill's provisions will not apply to certain proceedings, for example, disputes arising within an employment context referred to statutory dispute resolution processes such as those provided by the Workplace Relations Commission, WRC; matters under tax and customs legislation; proceedings under the child care Acts or the domestic violence Acts.

Other exclusions include judicial review proceedings and proceedings against the State in respect of alleged infringements of fundamental rights and freedoms. Furthermore, nothing in this legislation is intended to replace mediation or other dispute resolution processes in any other statue or under any other agreement or contract. Section 4 on regulations and section 5 on expenses are standard provisions in legislation of this type.

Part 2 of the Bill contains general provisions regarding mediation. Section 6 deals with general conditions under which mediation takes place, making it clear that participation in mediation must be voluntary and that it is for the parties themselves to determine its outcome. Section 7 provides for an agreement to mediate to be signed by both the mediator and the parties to the mediation. The agreement to mediate outlines the manner in which the mediation is to take place and the matters to be included in the agreement.

Section 8 outlines the role of the mediator. It specifies the actions the mediator must take prior to the commencement of the mediation and those that he or she must take during the mediation. Section 8(1) provides that the mediator must supply the parties with information concerning his or her qualifications, training and experience, as well as a copy of any code of practice under section 9 to which he or she adheres. Section 8(4) derives from a recommendation of the Law Reform Commission Report and provides that a mediator may, exceptionally and at the request of all the parties, make proposals for the resolution of the dispute but that it will be for the parties alone to decide whether to accept such proposals.

Section 9 provides for codes of practice for mediators. It provides that the Minister shall, as soon as practicable after the commencement of the Act, prepare or publish a code or codes of practice setting standards for the conduct of mediations. Section 9(2) lists a number of relevant matters that may be covered in such a code or codes. As an alternative, the Minister can approve and publish a code that has been prepared by a mediation body or, indeed, another body which purports to set standards for the conduct or mediations. Subsections (3) to (7), inclusive, make provision for the manner in which a code of practice may be published, amended, revoked or even withdrawn.

Section 10 deals with the crucial issue of confidentiality in mediation. It makes clear that all communications relating to a mediation - including oral communications - will be confidential and cannot be used for or in any other proceedings. A limited number of justified exceptions to the general rule on confidentiality are, however, specified in section 10(2).

Section 11 deals with the enforceability of mediation settlements. It provides that only the parties have the power to decide if a mediation settlement has been reached and the manner in which it is to be enforced. Subject to the exceptions specified in this section, a mediation settlement will be enforceable as a contract at law where it is in writing and signed by all the parties and also by the mediator.

As stated earlier, the Bill contains proposals for a regulatory structure that derive from discussions during pre-legislative scrutiny of the general scheme of the Bill. Section 12 makes provision for the possible future establishment of a mediation council to oversee the development of the mediation sector. Such a council would comprise representation from the main mediation bodies together with a number of public interest members. The intention is that the council would be a self-financing and representative of both mediation interests and the public interest. Under the section, the Minister could, at some future date and by order, declare the establishment of a body to be called the “Mediation Council of Ireland”. The section also provides that there can only be one such council in existence at one time and that the council must be sufficiently representative of mediation interests and must also meet the minimum requirements provided for in the Schedule to the Bill. Section 13 provides for reports of the mediation council to be submitted to the Minister and for the laying of such reports before the Houses of the Oireachtas.

Part 3 of the Bill specifies the obligations concerning mediation which are imposed on practising solicitors and perhaps, at some future date, on barristers. Section 14 is a key provision. It imposes mediation-related obligations on a practising solicitor and specifies the advice and information regarding mediation which a solicitor must provide to his or her client prior to the initiation of court proceedings. The section further provides that the originating document to commence proceedings must be accompanied by a statutory declaration made by the solicitor evidencing that the solicitor has complied with the requirements of the section. Where the required statutory declaration is not lodged with the originating documents, the court must adjourn the proceedings to enable the solicitor to comply with the section at that stage. The section does not apply to certain matters arising under the Guardianship of Infants Act 1964, the Judicial Separation and Family Law Act 1989 and the Family Law (Divorce) Act 1996. Separate mediation-related provisions are already included in those Acts. However, sections 24, 25 and 26 contain amendments to those provisions in order to ensure consistency and coherence between those Acts and the provisions of this Bill. Part 6 of the Bill contains these amendments.

Section 15 outlines the obligations on practising barristers regarding mediation. The provision will apply only when it is lawful for a practising barrister to issue proceedings on behalf of a client who is not represented by a solicitor. Under the section, the Minister may impose obligations analogous to those imposed on solicitors or banisters following the publication of any report under section 34 (1) of the Legal Services Regulation Act 2015 relating to the unification of the professions of solicitor and barrister and after consultation with the Law Society and Bar Council.

Part 4 of the Bill contains provisions regarding the role of the court in mediation. Section 16 empowers a court to invite parties in civil proceedings that have already commenced to consider using mediation to resolve their dispute. Under this provision a court may, on its own initiative or following an application by a party to the dispute, invite the parties to consider using mediation to settle the dispute. The section further provides that where the parties decide to use mediation, the court will adjourn the proceedings and may make an order extending the time for compliance by any party with any provisions of the relevant rules of court or of any order of the court in these proceedings.

Section 17 provides for mediator reports in such cases. It provides that where, following an invitation by the court under section 16, the parties engage in mediation the mediator will then report to the court on the outcome of the mediation. Section 18 concerns the impact of mediation on limitation and prescription periods. In short, it provides for disregarding time taken for mediation under the Statute of Limitations.

Section 19 provides for the adjournment of court proceedings to permit the mediation option to be explored. This provision is in addition to any existing power of the courts with regard to adjournments.

Section 20 deals with the fees and costs of mediation. Under section 7(b), the agreement to mediate should specify the manner in which the fees and costs of mediation will be borne. Such fees and costs must be reasonable and proportionate to the importance and complexity of the issues at stake and, of course, to the amount of work undertaken by the mediator. Section 21 deals with the factors that may be taken into account by a court in awarding costs.

Section 22 is a technical amendment to section 15 of the Civil Liability and Courts Act 2004 which will allow the court of its own initiative to refer a personal injuries action to mediation. Section 15 of the Civil Liability and Courts Act 2004 already provides that a court may at the request of any party to a personal injuries action, direct that the parties to the action meet to discuss and attempt to settle the action at a mediation conference.

Part 5 of the Bill deals with the provision of mediation information sessions in certain circumstances. In its 2010 report, the Law Reform Commission underlined the potential benefits of mediation in family law proceedings as an alternative to adversarial court proceedings and recommended that parties be required to attend information sessions in advance of the commencement of such proceedings during which the benefits and advantages of mediation can be properly and adequately explained.

Section 23 seeks to give effect to this recommendation. It provides that the Minister may, for ensuring the availability of such sessions at a reasonable cost and in suitable locations, prepare and publish a scheme for the delivery of such sessions, or approve a scheme for the delivery of such sessions by another person or body. The Legal Aid Board, for example, is already involved in the provision of a free family mediation service, the benefits of which are widely acknowledged, especially in cases in which children are involved. Details of the procedure for adopting such a scheme are set out in subsections (3) to (7), inclusive. Section 23 (8) clarifies that the section applies to family law proceedings and proceedings under sections 67A(3) or 117 of the Succession Act 1965.

The Schedule outlines the minimum requirements with regard to the establishment of a mediation council under section 12.

In particular, it specifies the general functions of the council and its membership. The main functions of the council, if established, would be as follows: to promote public awareness of mediation; develop standards in the provision of mediation, including continuous professional development; prepare codes of practice for mediators; establish and maintain a register of mediators; and advise the Minister on the establishment of a scheme to deliver mediation information sessions.

The council would consist of 11 members, a majority of whom, including the chairperson, would represent the public interest. The council would be independent in the performance of its functions and be self-financing from fees calculated in accordance with its rules.

This Bill will promote mediation as a viable, effective and efficient alternative to court proceedings. I believe that enactment of the Bill will speed up resolution of disputes, reduce legal costs associated with such disputes and reduce or avoid the stress involved in adversarial court proceedings.

I commend the Bill to the House.

I thank the Minister for his very comprehensive outline of the Bill. I now call the group spokespersons, and the first group spokesperson is Senator Catherine Ardagh. The Senator has seven minutes.

I thank the Minister for Justice and Equality for coming to the House to give an outline of the Mediation Bill 2017.

I am a solicitor and am an accredited mediator with Mediation Forum Ireland, however I have never practised. I welcome the Bill.

The Minister has gone into the technical detail of the Bill and I will not repeat it. Fianna Fáil welcomes this overdue Bill. I am really delighted that we are debating it in the House today. Taking a case to court is a serious matter and it can be stressful, and usually it is very contentious. Ultimately if a judge has to make a decision, there is a winner and a loser. There are cost implications. The Bill encourages parties to go to mediation and puts a special onus on solicitors to try to sell the concept of mediation, so that legal costs are reduced. That is very welcome.

It must be outlined that mediation is a voluntary method of trying to resolve a dispute. Nobody will be forced to go to mediation. The mediation environment is very practical. It is not as scary as the idea of going into a courtroom with a judge and barristers in wigs and gowns. That is why mediation would appeal to the public. Mediation is offered in family law cases, but there are other types of mediation. I know that in the family law environment, the mediation services provide proper rooms. There are waiting lists for mediation. Would the Minister consider funding the family law mediation services?

People are trying to figure out, as a punter or a business person, how the mediation legislation would affect them if they were owed a debt which they wished to pursue. This is very different from family law mediation.

Commercial mediation or mediation to resolve small debts involves costs. However, they are not significant costs. Should people decide to take the mediation route, they wonder how to find a mediator. The Bar Council has a list of mediators, the Law Society has a list of mediators, so between the two parties, it is agreed on the best person to pick, based on their experiences, the cases they have handled in the past, personality types so that both parties would have respect and confidence in the mediator. This is warmly welcomed because it means the parties can choose who they want to work with to come to a mediated agreement. Usually what happens once the mediator is picked, is that the mediator takes over and perhaps organises a location to hold the mediation. One usually needs three rooms. There are practicalities involved and some expense, but it is obviously less costly than spending many full days in court.

A date will be set for the mediation, the mediator will organise the three rooms, perhaps in a hotel or conference facility, a mediator's room and a room for each of the parties. It is conducted in a much more relaxed environment. It is not a scary environment. As the Minister outlined, it is a voluntary process. The mediator will spend a lot of time talking to each party and going through the pros and cons of their cases and hopefully coming to a mediated settlement and drawing up a mediated settlement agreement. As the Minister outlined, how the agreement will be implemented is up to the parties. Much of the time it is successful, but obviously just because people enter into mediation discussions, it does not mean it will definitely be successful. Sometimes one has the risk of going down the mediation route and the agreement not working and then having to go to court. In most cases it is worth a try and it is worth putting the onus on practitioners, which I think the Bill does, to encourage parties to go down the mediation route.

I commend the Minister. The Bill is well overdue and I look forward to discussing the finer details at a later Stage in the autumn.

I thank Senator Ardagh. My understanding is, and perhaps the Minister will clarify, that we are dealing with the Committee and Remaining Stages tomorrow. The Minister has indicated this is correct.

Senator Boyhan is our next speaker and he has seven minutes.

I welcome the Minister to the House. I thank the Minister for his comprehensive overview of the Mediation Bill 2017, which I welcome.

The Minister summed up the purpose of the Bill in the final points of his speech. Anything that speeds up the resolution of disputes, reduces legal costs associated with disputes, reduces long waiting times and avoids adversarial court proceedings has to be welcomed. I am reminded of what a judge said to me recently. He said that he personally would not take a case to litigation because he believes that if there is a dispute one goes to the fence and puts one's hand over it and negotiates a settlement. That is the correct thing to do and one will save the legal costs and the stress. Sometimes people get bogged down in vindictiveness and other things so that they cannot reach a settlement. People suffer significantly because of delays, costs and time in getting a resolution to a dispute as quickly as possible. Mediation can help.

Mediation is not always binding. I would like the Minister to talk through a negotiated or mediated settlement, and how binding it is. A binding settlement is really important. We need to understand that.

I want to concentrate on certain aspects of the Bill. Part 3 places obligations on practising solicitors. I do not have to mention in the House that people have been very unhappy with the legal profession and they were perceived to be involved in the resolution of a dispute. People are not always happy with the legal profession in terms of the resolution of a dispute. That is not to knock the members of the legal profession who are Members.

Part 3 of the Bill contains two key provisions relating to the obligations of solicitors and barristers as regards mediation.

Let me draw attention to section 14 which will require practising solicitors "to advise" the client to consider mediation as a means of attempting to resolve the dispute which is the subject of the proposed proceedings. Under section 14(b) a solicitor must provide the client with information in respect of mediation services, including the details of mediator services, information about the advantages and the benefits of mediation and information of confidential obligations and enforceable mediation settlements. I think that has to be welcomed. However, the solicitor has to advise. The legal profession is a business at the end of the day. Some solicitors, not all of them, will encourage litigation. That is a fact of life. Many people will have had experience of that. We need a stronger wording than "advise" in this section.

Section 14(2) states that if a practising solicitor is acting on behalf of a client who intends to institute proceedings, the originating document by which proceedings are instituted shall be accompanied by a statutory declaration made by the solicitor confirming that the obligations under section 14(1) have been discharged. What happens if this declaration is not provided? There must be a remedy. One may say that the solicitor will be asked for the declaration, but how can we be sure that the declaration is provided for? Will the Minister clarify the position of the declaration.

The Minister sets out the role of the mediation council in section 12. As this is done well, I am not going to rehearse it, but how is it intended to finance the mediation council? I understand it is envisaged in the Bill that the mediation council will be self-financing. I do not know how that works.

The Minister might elaborate on how he intends the mediation council to be funded and who will contribute to that fund. In conclusion, people need speedy resolution of disputes, they want curtailed legal costs and to avoid the stress of the adversarial courts process. On the whole, therefore, I welcome the Bill, for which the Minister has my support.

I welcome the Minister to the House. There is never an easy day as Minister for Justice and Equality and today is no different. It is certainly not an easy day for our esteemed colleague for whom I have huge regard, especially with the report of the Committee of Public Accounts and its damning findings on the Garda Commissioner. While the Minister is probably not in a position to comment on that, I have recorded my view that the Commissioner should do the decent thing and go.

That is not relevant to the debate.

I know it is not.

The Senator might address the Bill.

It is worthy of comment because it was a committee of the Oireachtas. That said, the Bill before the House is welcome although it is a pity it did not happen some time ago. When I was appointed as spokesperson on justice in the Seanad in 2013, following my colleague, Paul Bradford, being kicked out of Fine Gael, mediation was----

There was a lot of kicking people out there.

Paul Bradford was the spokesperson on justice prior to my appointment at the time. I felt then that mediation had a long way to go in this country to come anywhere near what our European colleagues had to resolve disputes. I decided then to use the mechanisms available to Members to put down a Private Members' motion calling on the Government to develop legislation on mediation. I commend my colleague, Deputy Josepha Madigan, who was a Fine Gael councillor at the time, for being the only person in the country to have written a textbook on mediation. That textbook has certainly informed academic opinion on mediation. There are some very good courses on mediation in some of our third level institutions, in particular in Maynooth University, which are informed by the work done by Deputy Madigan in a former life. Her assistance to me in drafting that Private Members' motion to promote mediation was very useful and we received a great deal of media coverage. I think it was 2013 or possibly 2014. While the Bill is late, therefore, it is very welcome.

With his own experience in the legal profession over many years, the Minister, Deputy Flanagan, sees the merits of mediation. There are others in the legal profession, however, who see it as a threat. We have high legal fees and one way to deal with that is by promoting mediation. Senator Boyhan expressed concern about the declaration from solicitors but the Bill provides that they are required to provide the certificate and that a case will be adjourned until that is done. Senator Boyhan's concerns are genuine, but the matter is covered in the Bill. I just wanted to point that out before the Senator left the Chamber.

In terms of what mediation can achieve, we have a long way to go before we are in line with our European counterparts. Certainly, a code of practice as required by the Bill is important. A mediation council, to which the legislation aspires, is something that should be put in place in early course. If there was an effective, well-funded, properly resourced and well-informed mediation council, it could set a code of ethics. Any code of ethics is an evolving document which is always being improved. While it is an aspiration within the legislation, I urge the Minister to set up a mediation council to take charge of the area in early course.

I am glad barristers are being included because the legal profession has resisted change more than most other professions. It is not in the cultural thinking of the profession to embrace and engage with change, but this is change that is necessary to ensure we are competitive and that there are other options outside litigation to be explored. The funny thing about mediation is that it has remarkable successes. When an independent individual is involved, listens to both sides and engages with them, it can have an enormously calming effect. Obviously, the Bill specifies issues like ensuring costs are kept at an appropriate level and that confidentiality is protected and promoted. It provides for proper training and ongoing professional development. Society changes, standards change and mediation techniques and mechanisms will change too. Continuous professional development is, therefore, appropriate.

Going through the Bill, I also noted that a mediator will be required to make his or her credentials and experience known to the parties prior to being retained to do the work. That is important. While 99% of people are bona fide and honest about their endeavours, requiring under law the provision of copies of qualifications, credentials and experience can eliminate the rogue. It removes the embarrassment of having to make a request for parties. As such, a great deal of thought has gone into the Bill. I note that Women's Aid has an issue with the legislation and I am sure that will be dealt with on Report Stage. I was surprised to receive correspondence from Women's Aid as the Bill is an extraordinarily positive step forward to bring Ireland into line with best international practice. While we have already achieved a great deal when it comes to arbitration, mediation seems, unfortunately, to have been the poor relation. The Bill is an extraordinary step in the right direction to bring us into line with best international practice.

I thank the Minister for being here again today. Broadly speaking, Sinn Féin supports the Bill albeit we have some concerns which we attempted to have addressed in the Dáil. We call on the Minister to ensure that as the legislation progresses in the Seanad those modest and doable amendments are made.

Sinn Féin supports the Bill's general objective of promoting mediation as a viable, effective and efficient alternative to court proceedings with the potential to reduce legal costs and speed up the resolution of disputes. I am not sure the following even applies to the Minister who is newly in office, but his predecessor took on board some concerns raised by the Opposition. It is disappointing that the then-Minister did not go so far, however, as to address the specific concerns Sinn Féin raised about domestic violence, which the Minister touched on in his opening contribution. I have no doubt the issue will arise as the Bill progresses through the House.

We note that while the Bill rules out mediation where disputes pertain to the Domestic Violence Acts 1996 to 2011, it will not cover the scope of the new domestic violence legislation which is making its way through the House. Rather than simply excluding proceedings under the Domestic Violence Acts from the scope of the Bill, it would be of more use in situations where domestic violence is an issue but may not have been prosecuted. It is simply not appropriate for a solicitor to advise clients to attend mediation in cases of custody or access where there has been domestic violence. Abusers may attempt to bring forward mediation proceedings to prolong matters, which is one of the key concerns of those who have passed information to us.

In a 2010 report on alternative dispute resolutions, the Law Reform Commission stated they were not suitable where they involved proceedings under the domestic violence Acts. It suggested a broad wording to include situations where there are safety issues. That is what we are attempting to reflect in the amendment we tabled on Report Stage in the Dáil. We would also like the Bill to provide that a mediator, prior to commencing mediation, would make inquiries about whether there has been domestic abuse in the relationship. This was also advocated by those in the sector dealing with the effects of domestic violence and those who have helped people who have suffered abuse by a spouse or other relative. There is a possibility that victims of abuse could be pushed into mediation settings, which would be wholly inappropriate. These amendments reflect the concerns of people who have worked with victims. The Law Reform Commission has also made suggestions along these lines. I hope the Minister will accept them on that basis.

As an addition to these amendments we would also like to see training provided for solicitors, barristers and mediators to give them the skills to identify domestic violence and work with abusers and victims. If the Minister will not accept there should be no scope for mediation in domestic violence cases, it would be of benefit if he will ensure there is training at the very least.

Another matter which is of importance to me is provision for mediation services through the Irish language. There are thousands of Irish speakers who would like to use Irish as their language on a daily basis in the courts and in justice matters but they simply cannot because officialdom does not consider it important enough to make provision for. This must be addressed on the next Stages of the Bill. The Minister will know, given his previous brief, that it is reminiscent of the Administration of Justice (Language) Act (Ireland) 1737, which pertains in the North. It is a penal law that is still on the statute books in the North and prohibits the use of Irish in the courts. We should not allow anywhere on this island, but in particular in this jurisdiction, a prohibition, delay or inability to use the Irish language in the courts.

We must also look at allowing for the recognition of mediation services in the Six Counties for the purposes of this Bill. It will come as no surprise to the Minister. He will understand the nuances of it. There may be people who are geographically located in the 26 Counties but who will find it easier to access mediation across the Border. It is imperative that no block is placed on recognising those mediation processes and that no bar is placed on Northern mediation practitioners from providing a service in this jurisdiction. It is particularly pertinent given the prospect of Brexit.

The Minister may not agree but I know he will understand the nuances of the issues for people who live along the Border. Hopefully the Bill can reflect and assist them in enabling the very worthwhile and important mediation services that this Bill provides for.

Sin mo mhéid.

I thank the Minister for his time and congratulate him on his new appointment. I wish him every success.

I will begin by welcoming the legislation and expressing my support to the State in trying to facilitate the resolution of disputes outside the court system wherever possible and appropriate. Such mechanisms are welcome in terms of reducing the burden on our court system but also because a mediation setting can be a less formal and adversarial environment for disputes to be considered which will often allow for a more positive outcome for all parties involved. It is my experience that many people who do not have regular, positive interactions with the criminal justice system, particularly if they are from disadvantaged, minority or marginalised backgrounds, can often feel intimidated by the prospect of a formal judicial adjudication. Any attempt to provide greater access to mediation services for the general population should be welcomed.

There are many positive aspects to the Bill but I will raise an issue that was raised in the Dáil by Deputy Aengus Ó Snodaigh, that is the danger of initiating mediation in family law cases where domestic violence may have occurred. In section 3, domestic violence cases are exempted from these provisions. It is clear recognition by the Minister that these procedures are entirely inappropriate where domestic abuse has occurred, which is very welcome. My concern is that circumstances may arise where domestic violence may have occurred but no formal allegation was made or prosecution filed so solicitors may recommend that partners enter into mediation with their former abuser. This is a major concern and a number of NGOs are working in this area, such as Women's Aid, which others have mentioned. I read over the Report Stage debate in the Dáil and the Minister's response to the issue was that because mediation is a voluntary process, a party who has experienced domestic abuse will not be forced to engage with the process if he or she does not wish to. The Minister also made the extraordinary claim that if we were to make a change, women could simply claim they had been the victim of domestic abuse so that their solicitors would not have to provide them with the information on mediation services. That is a separate matter.

My concern is that by exempting domestic violence cases from these procedures we acknowledge they are wholly unsuitable environments for domestic violence issues to be raised. Yet in family law cases where domestic violence has occurred but charges have not been filed, we are potentially allowing a situation where women will engage with former abusers. The only safeguard against this is the woman herself putting her hand up to say she does not want to do it. It is not acceptable. What about cases of vulnerable women who might be intimidated by the prospect of formal court proceedings and may feel that mediation is their only option? We could be forcing a woman to engage with an abuser and nowhere in the mediation process is there any obligation on any parties to ascertain whether domestic violence is a factor in the mediation process. Such obligation should exist. Sinn Féin tabled two amendments to this effect in the Dáil. It would comprehensively address the issues I have raised. Committee Stage amendment No. 8 would create an obligation on the mediator to at least make inquiries with the parties as to whether domestic abuse has occurred in the relationship. Will the Minister consider tabling amendments in the same spirit? We have a busy schedule this week and we all want to get this Bill passed before the recess but we need to consider this vital issue and I appreciate the Minister's thoughts on it. I will introduce amendments to this effect if the Minister does not.

As someone who has used mediation services in the family law courts, I found them very positive but I was not in fear for myself, my children or my life so I was able to engage positively and actively in a healthy manner in that mediation. One part that always stood out to me with regard to women going into mediation as an alternative to the courts system, especially in the family law courts in Dolphin House, was that there was no enforcement of agreements. Women would enter into negotiations, often around access to their children and maintenance, but there was no way to enforce agreements. It can be a tiring and disheartening process to go through, to have to come back and then end up in the court system. What are the Minister's thoughts on an enforcement element in mediation?

I welcome the Minister to the House and wish him every success in his new role. As a practising solicitor I am a little concerned at the views expressed on this area by some people. I think the Minister will agree with me. Solicitors do everything possible to get a resolution to a dispute. If one looks at cases listed for hearing, one will find that in the vast majority of cases people try to get them settled. When it comes to the day of the hearing, one will find that anything up to 70% to 80% of cases listed for a particular day will settle on the day because people will know they are leaving it in the hands of a third party to make the final decision.

Those in the legal profession make every effort to bring resolution to a dispute at a very early stage and try to close the file and move on to the next item. From my experience of an arbitration matter I was involved in, because it was the contract our clients had entered into, we had to go through the arbitration process rather than go through the litigation process. After 30 days, we were still on the first witness. For 11 days there was a dispute about whether there was one contract or five. I welcome the Bill. It is important but it is also important it is not used as a delaying process. I am very concerned about the Statute of Limitations where the time used for mediation is not counted, so it is most important that the system is not abused.

There should be no loophole that allows a party to use the mediation process to delay the entire procedure. I have been involved in litigation and one matter in which I have been involved has been ongoing for 16 years. One of the parties has used the court system extensively and that has involved everything up to judicial review of a Circuit Court judge to the High Court and on to the Supreme Court, knowing at the time that there was a delay of up to four years in getting a hearing in the Supreme Court. There are people who can and will use a process to suit themselves. If we find four or five years after passing this Bill into law that it must be tweaked, we should be prepared to do that.

Overall, however, I welcome the Bill. It is important that an experienced person conducts the mediation of disputes. I refer back to the arbitration matter I was dealing with, where we found that the person dealing with it was not of real assistance in bringing forward early decisions on questions that were being asked. In arbitration it is important that the arbitrator is able to bring people along and ensure that there is compromise at each step so an overall agreement can be reached.

My colleague, Deputy Ardagh, raised the cost of mediation. One of the cost issues, especially with mediation, is the cost of booking independent facilities. In the arbitration I referred to, an arbitration centre was booked along with adjoining rooms. After 30 days there was a huge bill. It is important that this is not abused in the case of mediation, whereby one of the parties is eventually forced to arrive at an agreement that is far less than what that party would have been entitled to. All of these issues must be taken into account when dealing with mediation to ensure people are dealt with in a fair and proper manner.

I thank the Minister and the Department for bringing the legislation forward.

I welcome the Minister and congratulate him on his recent appointment to the justice brief. I also welcome the opportunity to debate the Bill. The Labour Party supports this important Bill. We are conscious that it is overdue, as others have said. We have been working on it for a long time. Indeed, looking back through my files I saw that I had addressed the Chartered Institute of Arbitrators about the Bill in April 2015. The Joint Committee on Justice, Defence and Equality, of which I was then a member, had conducted pre-legislative scrutiny and held hearings on the heads of the Bill in March 2012, some three years prior to that. I believe Senator Conway was a member of that committee as well. It has taken a long time to progress it, but it is welcome to have it before us today. It is unfortunate, perhaps, that we are rushing to deal with it in two days, given how long the gestation period has been, but we are all conscious that it must be supported and passed.

When the hearings were held by the joint justice committee all the stakeholders gave evidence, including the Chartered Institute of Arbitrators, the Centre for Effective Dispute Resolution, Family Mediation Ireland, Dublin Solicitors Bar Association, the Irish Commercial Mediation Association and the Mediators' Institute of Ireland. All of them stressed the importance of having legislation in place to underpin what is already quite an extensive ongoing practice of mediation in this jurisdiction. They made the point, which I founding striking, that Ireland could and should become an important centre for international dispute resolution and that the introduction of comprehensive legislation underpinning the practice of mediation would be an important step towards achieving that goal. It has a huge economic benefit for our country. It was agreed in the programme for Government in 2011 that the Government would support, encourage and facilitate the use of mediation. We are also aware of the Law Reform Commission report of 2010 which also fed into this Bill.

The Minister has outlined the purpose of the Bill. The hope and expectation is that the Bill will bring about reductions in legal costs, speed up the resolution of disputes and, importantly, relieve stress for parties involved in court proceedings. Another point stressed by the bodies that made submissions to the hearings I mentioned was that it would provide greater access to justice for people in a more affordable and effective way, notwithstanding the practical points made by Senator Colm Burke about delays in the system and the important points raised by Women's Aid and so eloquently by Senator Ruane as to whether mediation is appropriate where domestic violence is alleged. Section 3 precludes mediation in domestic violence cases but, as Women's Aid points out, there are other proceedings where domestic violence might be alleged which are not caught by the exemption in that section. I believe there is provision in the Bill under which the Minister may consider other types of proceedings in which mediation would not be appropriate. Clearly, as the Law Reform Commission acknowledged in 2010, where the safety of a party or their children is at risk the dispute, even if it is not directly a domestic violence dispute, is not suitable for mediation. That must be kept under review, even if the Bill is not to be amended.

I am aware that amendments on this issue were rejected in the Dáil, but Women's Aid raises an important matter. We must be cognisant that mediation will not be appropriate in all proceedings. Ruling out domestic violence proceedings specifically, as section 3 does, might not catch all the proceedings in which safety is at risk.

I wish to raise some other points that emerged from the committee's hearings. Those who are involved currently in running commercial workplace and family mediation welcome the legislation, but they made the point that there is a problem with the lack of public awareness about the option of mediation and that it must be highlighted. Section 14 of the Bill provides that solicitors, prior to commencing civil proceedings, must advise a client to consider using mediation. That is welcome, but the justice committee recommended strengthening the duty. There should be an obligation to make particular information available to potential litigants, from the Courts Service, for example, even prior to consultation of the solicitor. Under section 16, the court, of its own volition, can invite parties to attend mediation. Again, however, that is at a point where the case has already gone to the court. The issue of raising awareness about the prospect or possibility of mediation even before parties consult solicitors with a view to litigation could be examined. Some of it could be done simply through a public awareness campaign. It does not require legislation.

A second issue emerged from the justice committee's hearings, and this was addressed by the Minister and is addressed in section 12 and the Schedule to the Bill. It came through strongly to the committee that the lack of awareness about mediation is compounded by the fact that in Ireland there is no single list or register of mediators. Anybody can put up a sign describing himself or herself as a mediator. That is a concern for all those currently involved in the practice of mediation. Indeed, potential clients have no way of knowing if the person they approach as a mediator is, in fact, trained as such or is following a particular code of conduct.

The Chartered Institute of Arbitrators and the Mediators' Institute of Ireland run training for mediators. There is extensive training on offer, but the issue of a national or central register is a problem. Section 12 seeks to address that. I am glad it is included as a result of our hearing, but it is aspirational in nature. Can the Minister state when he envisages being able to put it into effect? He said that there must be evidence that a particular institute or body is sufficiently representative and so forth, but what hoops or hurdles must be gone through to get to that stage? The Schedule sets out a clear list of the important functions a national body or mediation council would carry out. Given that we have acknowledged in the legislation the need for a council to carry out those functions, should we not go a little further in the Bill rather than just stating the aspiration of having a central council?

A related issue raised in the committee's hearings was the absence of adequate regulation for mediators and, in particular, the lack of a central system of redress or complaint for a client who has problems with an individual mediator or the process. Again, a mediation council would address that. However, in section 9 there is provision for codes of practice, which will go some way towards addressing it.

The confidentiality clause in section 10 is very important. It is also something that was stressed to us during the committee's hearings. A significant issue in practice is the withdrawal of a mediator. Again, it was raised with us and is dealt with in section 6 of the Bill. Some of the people who made submissions said that the provision in subsection (6) appears to oblige mediators to give reasons if they withdraw from a mediation.

Mediators raised with us the point that they believed this might not be in accordance with best practice and that it should be possible to withdraw without reasons.

These are some of the issues that will arise as the Bill comes into effect. It is very welcome that it is coming into effect. On Committee Stage in the Dáil, the Minister introduced a new Part 6, dealing with family mediation, and amendments to relevant legislation. Some of the delay has been over the drafting of Part 6 and consultation with bodies on the idea of a mediation council. I tabled questions to the Department about this in recent years. It is certainly very welcome to see the Bill even after these long delays and to be able to raise these points.

I compliment the Minister on the work he did as Minister for Foreign Affairs and Trade. I attended many meetings in Brussels, Malta and Sicily and noted the work he did on preparing Ireland for Brexit must be recognised. I thank him for that. I wish him well in his now tough post in the Department of Justice and Equality. No doubt we will meet over the coming period.

I am delighted to see this Bill in the House and I compliment the Minister for introducing it. I have a couple of small issues. My colleague Senator Bacik just dealt with one of them, the fact that anybody can stick a sign outside the door stating "Mediator". In my time in the trade union movement, particularly while I was president of the union, I always believed that where people spoke to one another, there was a chance to kill off a problem and to bring in mediators quickly. Sometimes, however, we saw the employer go for the cheap option of bringing in a retired principal who would understand the situation and people. That is why the establishment of the council is vital. People say we have too many quangos, which may be true, but this is one quango that would be well justified.

I hear people talking about the Bar Council. One of the first things I did when elected was a Senator was visit the Bar Council. I went down to the Law Library and met its members there. I spoke about the need for them to put in place mediation training for many of the young barristers who are probably finding it hard to make a living. There is a considerable amount of mediation work available. I agree with my colleague Senator Bacik that we could put ourselves front and centre as a mediation centre for international disputes. I will not impede the Bill going through the House but I urge the Minister to consider immediately the establishment of the council as soon as the Bill is passed. It would be work well done.

Professional training needs to be underpinned. We need to be sure it is not just a matter of some fellow who has a bit of experience down through the years. We need to have professional mediators put in place. When president of the Teachers Union of Ireland, I encountered a particular issue requiring mediation. It took 15 months to get two men to stand beside each other and shake hands. That was a major achievement. The mediator involved was an incredible character, as one would have realised if one had known the case. I will not get into it here.

I ask the Minister to ensure a council will be put in place, that it will set standards for mediators, that there will be compulsory continuous professional development available for mediators and that the council will be professional. Regarding the Statute of Limitations, already mentioned by Senator Burke, I would not like to see mediation continuing indefinitely. Senator Burke was talking about periods of two years, 16 years and all sorts of times. If one enters into mediation, there should be a closing-off time. The idea that it might go on forever is one I am sure the Minister will be considering. Overall, I compliment the Minister on this Bill. I hope it is passed over the next couple of days. It is badly needed. I thank the Minister for taking the time to come here.

Ba bhreá liom fáilte a chur roimh an Aire. I wish him the very best in his new brief. Mediation is not a new concept. It has been in operation across various sectors in the State, as has been said, and it is an appropriate mechanism for various parties to arrange mutually acceptable solutions in different types of rows or disputes. This Bill is very welcome. It is a long time in the works, as has been said. We have accorded ourselves the reputation of being a litigious nation. I do not have the evidence to prove it but it seems we are quick to acquire the services of solicitors when seeking to rectify wrongs or perceived wrongs in civil matters. I hope this Bill can help to remove some of the impulsiveness and drama witnessed during some civil proceedings and will allow for more measured ways of addressing disputes from the start before they escalate into intractable Bleak House-type situations of the kind described by Senator Burke, lasting up to 16 years. The resolving or circumnavigation of any intractable, stressful, financially crippling legal issues through appropriate recourse to mediation is very welcome.

By directing lawyers to advise their clients to consider mediation first as a method of resolving disputes, I hope the current overwhelming civil case load in the court system can be reduced, particularly as mediation becomes increasingly regarded as an acceptable and established way of resolving conflict among potential litigants, confidentially in many cases. I hope litigation will become more expedient as a route for people and that it will prove to be cost-effective in reality. Much time and energy are wasted in court at present on issues that could better be resolved and disposed of in mediation.

The Bill will mean a solicitor - or possibly a barrister in the future - must make a statutory declaration that he or she advised clients to consider mediation as a means of dealing with a dispute that is the subject of proposed proceedings. Solicitors must also provide their client with information on mediation services. This is a relatively innovative addition to the current civil legal framework.

I hope the Bill will have a positive effect on the way people communicate in personal arguments among themselves. I hope it will create in society generally a culture of compromise, in the good sense of the word, that has been absent until now. It must be stated, however, that while the concept of mediation is great in theory, its applicability will vary in practice from case to case. Many aggrieved would-be litigants will still want their day in court and to have their costs fully paid.

This relatively short Bill has 23 sections and I believe it is flexible and fair overall. Section 6 provides that participation in mediation will be voluntary at all times, and allows for the withdrawal from the process by the parties involved, and also by the mediator. It also guarantees that independent legal advice can be availed of during mediation.

I wonder whether section 7(b), pertaining to the agreement to mediate, is too general or whether it could do with some additional wording. It states that prior to the commencement of mediation, a document should be signed by the parties and the mediator regarding the terms of reference for the mediation. The section uses the wording “manner in which the fees and costs of the mediation will be paid”. Has the existing wording the potential to be problematic? Will people who have never engaged in a mediation process before be nervous, or perhaps unsure of what to expect, and therefore unsure as to what a justifiable amount to be paid would be?

I remember when, as a barrister starting off, I was invited to conduct a mediation. It never came to pass. I went to a senior counsel in the Law Library, a person known for his affability and experience in the area of mediation and asked him how much I should charge for my role. He sat down, looked at me judiciously and asked me what I thought myself. I quickly realised he did not want to give me an answer of his own making and that he wanted to avoid the question. Very often, the question of costs is one that people want to avoid in advance. I wonder whether it should be the case that the required document would provide for the manner in which the fees and costs of the mediation would be paid, to whom, by whom and by when. Would this add more certainty to stipulations regarding payments for mediation which themselves could become a very contentious issue?

I am conscious I am out of time. I do not want to hold up this Bill. It is very welcome. I commend the Minister on brining it before the House. I hope it will lead to serving the public well, doing people good and helping them to avoid unnecessarily costly and stressful legal proceedings by providing ever more for a better way of dealing with their disputes.

I congratulate the Minister on his new appointment and I wish him every success. I call on him to conclude Second Stage.

I thank Senators Ardagh, Ó Donnghaile, Ruane, Conway, Burke, Bacik, Craughwell, Boyhan and Mullen for their contributions. I acknowledge the broad welcome of Seanadóirí of all parties and none for this Bill. I hope we can advance it. Notwithstanding the beckoning summer vacation, I hope we might be in a position to conclude the debate before the end of the week.

I hope that before the end of the week we might be in a position to conclude the debate. A number of issues have been raised which were also well aired in the Dáil and to which we will return between now and the completion of the debate.

A submission on the Bill made by Women's Aid was circulated to all Members, on foot of which, four recommendations were suggested for inclusion in the Bill. There are a number of reasons amendments were not accepted. They were not accepted on the basis that the Bill already provided that it should not apply to proceedings taken under the domestic violence code, for reasons I outlined. Similarly, it is important that throughout the debate we acknowledge that the process covered by the Bill is voluntary. That is made clear in the definition in section 2 in which it is outlined that the mediator's role will be "to assist the parties" to bring about a resolution of the dispute. That will be a matter entirely for the parties. There will be no enforced settlement or duress on the part of anybody involved; it will remain solely a voluntary process for the parties.

The issue became clear in the course of the contributions of Seanadóirí. I compliment Senator Martin Conway, in particular, on his comments. He pointed out that mediation offered a less adversarial arena within which matters in dispute could be addressed. Mediation can be speedier and offer an alternative to court proceedings and, of course, there is the issue of costs, notwithstanding the point made by an Seanadóir Rónán Mullen. I hope the Whips will acknowledge the fact that Senator Catherine Ardagh and her party, Senator Niall Ó Donnghaile and his party, Senator Ivana Bacik and her party and Senator Martin Conway, as spokesman for my party, have all acknowledged the importance of proceeding with this legislation with a view to having it enacted at the earliest opportunity. I hope we can do so.

I acknowledge the points raised by Seanadóirí Niall Ó Donnghaile, Lynn Ruane and Ivana Bacik about issues they felt should have been included in the legislation. I hope that in the next couple of days we might have an opportunity to deal with them in more detail as we proceed towards enactment of the legislation. I hope that might be done in the next few days, but, of course, I am in the hands of this assembly.

Question put and agreed to.

When is it proposed to take Committee Stage?

Committee Stage ordered for Wednesday, 19 July 2017.
Sitting suspended at 4.45 p.m. and resumed at 5 p.m.