Mediation Bill 2017: Committee and Remaining Stages

Sections 1 and 2 agreed to.
SECTION 3

As amendments Nos. 1, 3 and 4 are related, they may be discussed together.

I move amendment No. 1:

In page 7, after line 36, to insert the following:

"(k) proceedings where there are allegations of domestic violence or assault between the relevant parties;

(l) proceedings where the safety of one of the parties (and/or their children) is at risk.".

I appreciate it has been a long and busy day for all of us. I do not intend to prolong the debate on these amendments, which we flagged when we articulated the case for them during yesterday's Second Stage debate. The rationale for amendment No. 1 is to ensure allegations of domestic violence are removed completely from the Bill. We appreciate that section 3 of the Bill provides that it shall not apply to "proceedings under the Domestic Violence Acts". As the Minister is aware, concerns about this legislation have been raised by Women's Aid. Many women who are in the process of separating from an abusive partner are involved in other family law proceedings such as separation, divorce and child custody, access or maintenance. There does not seem to be a process for ensuring such cases are screened of the provisions of this Bill. Equally, there is no scope to include such proceedings under the Domestic Violence Bill 2017, which is making its way through the Oireachtas.

In its 2010 report on alternative dispute resolution mechanisms, the Law Reform Commission acknowledged that family law disputes which are not suitable for mediation include those covered by the Domestic Violence Acts and those in which the safety of one of the parties or the children involved, or both, is at risk. It recommended that both types of case should be exempted from mandatory information sessions on mediation. The report states:

Therefore, the Commission recommends a party to a family law proceeding would not be required to attend an information session under the following circumstances:

- Where the proceedings involve an application for a safety order, a barring order or a protection order under the Domestic Violence Act 1996; or

- Where a party satisfies the court that his or her personal safety, or the safety of his or her children is or are at risk.

A similar approach would better protect someone who is separating from an abusive partner from unintended negative consequences of mediation. Therefore, the list of proceedings to which the Bill does not apply should be expanded to include family law cases where domestic violence is alleged. We note that amendments based on this recommendation were not accepted in the Dáil on the basis that mediation remains voluntary and that similar obligations on solicitors to advise mediation in family law already exist in other relevant Acts. This misses the point that it may be difficult for a woman to refuse mediation when it is so strongly encouraged by the legal system, even if it is not safe.

I refer to some much more concerning provisions of this Bill, in sections 16 and 21, which may be highly detrimental to victims of domestic violence who are engaged in family law proceedings. These provisions would allow a perpetrator of domestic violence to apply for the court to invite parties to mediation. Under section 21, refusal to consider or attend mediation can be considered when costs are being awarded. This means that a victim of domestic violence may be "invited" to mediation by her abuser, who may use this tactic to protract proceedings. I am concerned that this legislation might lead to a woman being coerced to agree to mediation, even if it is not safe for her or in her best interests. She may well fear that if she does not engage, she will have to pay the costs.

Our amendment is pretty direct and straightforward in what it sets out to do. I appreciate that we laid our case before the Minister and our colleagues in the Seanad yesterday. Given the severity of this problem, and in light of the calls that have been made by survivors of domestic abuse and by reputable organisations like Women's Aid Ireland, we felt it was important to table this considered and nuanced amendment to the Bill, which seeks to safeguard the victims and survivors of domestic abuse and to allow for greater access to the judicial and legal system. It is hoped it will ultimately allow for greater passage through that system in order that these people feel protected and safeguarded and are not forced into situations which would be detrimental to them.

I second these amendments. Senator Ó Donnghaile has touched on why this is so important. I will focus on amendment No. 4, which proposes that mediators should receive training in awareness of domestic violence. It is vital for those who are going to be working with people who end up within the courts system to receive this important training. When two parties are in a room trying to find some reconciliation, the mediator holds the balance of power. We can never really understand the balance of power that exists between those two parties outside that room. That is why we need to ensure people are trained to understand domestic violence, which is not always clear-cut and obvious. It is sometimes difficult to realise that for reasons of manipulation, coercion and risk to personal safety, one party in the room is under the complete power of the other party. Training is vital. Our request for training in this arena to be provided is a modest one. Domestic violence is part of many homes. I support these amendments. I emphasise the importance of training in this area.

I acknowledge the points made by Senators Ruane and Ó Donnghaile during the debate we had on this matter yesterday. I understand and appreciate their intentions in raising the important issues of domestic violence and personal safety in challenging and difficult circumstances. I regret that I am unable to accept these amendments for reasons I will now explain.

I will make two clear points at the outset. I want to underline again that section 3(1)(h) of the Bill, which makes specific reference to "proceedings under the Domestic Violence Acts 1996 to 2011", is a specific, important, intended and deliberate exclusion. It is important to reiterate a point I made a number of times yesterday. I am sure all Senators will accept that mediation is and will remain a voluntary process. This is made clear in the definition in section 2 of the Bill. While the role of a mediator is to help parties to resolve their dispute, it is really a matter for the parties themselves to decide whether to engage in the process of mediation.

Amendment No. 1 seeks to amend section 3 to exclude "proceedings where there are allegations of domestic violence or assault between the relevant parties" or "proceedings where the safety of one of the parties (and/or their children) is at risk". I must make it perfectly clear that the Mediation Bill 2017 is exclusively concerned with disputes that may result in civil proceedings. As the Bill relates to civil proceedings only, it does not really have a role or function in criminal proceedings. Therefore, mediation would not have any role to play in cases of assault or other criminal activity. In such cases, the advice would be to report the matter to the Garda in order that the appropriate gathering of evidence can take place and a prosecution can take place under our criminal code and criminal laws.

I will set out the position in respect of family law proceedings where domestic abuse is alleged or the safety of any party or child is an issue.

Again, I refer to the Dáil debate where the Bill was amended to ensure coherence and consistency between its provisions and those of other family law-related legislation, particularly the Judicial Separation and Family Law Reform Act 1989 and the Family Law (Divorce) Act 1996. Sections 5 and 6 of the 1989 Act require solicitors acting for both the applicants and the respondents in a judicial separation case to discuss the options of mediation with their respective clients and to provide them with names, addresses, details of persons and organisations qualified to provide mediation services. I refer Senators to sections 6 and 7 of the Family Law (Divorce) Act 1996, which impose the same obligations on solicitors acting for parties in divorce cases. Discussing mediation options is a duty. Neither of these Acts specifically excludes solicitors' mediation-related obligations in cases in which domestic abuse is alleged or indeed in cases where safety issues are put forward by a party. There are no such exclusions in the 1989 Act and the 1995 Act because mediation is a voluntary process and that will remain very much the core of the engagement under this legislation. A party who has experienced domestic abuse, and I say this to Senators Ruane and Ó Donnghaile who make their points very sincerely, is really unlikely to enter into any form of mediation unless he or she is doing so to protect children from the ordeal of court proceedings. My difficulty is that the amendments would not alter the existing obligations on solicitors to discuss mediation options with parties in cases where domestic abuse is alleged. That would require amendments to the 1989 and 1996 Acts but not in this Bill. If one recalls yesterday's debate, we underlined the point that mediation offers a less stressful, less adversarial, less difficult and often speedier alternative to court proceedings in family law cases, particularly where children are involved and where the legacy of bitterness, hostility and problems that often result from long-drawn-out court proceedings are avoided. I am unable to accept the amendments for the reasons I stated.

Amendment No. 3 proposes to amend section 8 by requiring the mediator to inquire separately of the parties whether there has been domestic abuse in the relationship and to take a view on whether mediation is appropriate. If we were to require or charge the mediator to engage in the type of activity the amendment proposes, we would be extending the role and function of the mediator in a way that could be described as intrusive and could cause practical difficulties. It would run against it being a matter for the parties to decide whether to seek a resolution of their own dispute through mediation. As amendment No. 3 would impose a general obligation on mediators, not having regard to the type of dispute involved, while the intention would be that it would only apply in family cases, the manner in which it is drafted means that a mediator would also be required to make such inquiries in other cases, for example, commercial cases or disputes between neighbours concerning a hedge, boundary or overhanging tree. For this reason, I am unable to accept amendment No. 3. Are we discussing amendment No. 4 now?

Yes. It is related as well.

Amendment No. 4 seeks to insert training for mediators with regard to domestic violence into the code of practice. I would prefer to see that in a code of practice for actual mediators and not for those who seek to become mediators. While I envisage a role for training standards, I do not envisage it being provided under this section. I draw attention to paragraph 1(b) of the Schedule, which provides that the functions of the Mediation Council will include reference to developing standards and a system of continuing professional development training. Training in domestic violence awareness is more appropriate to developing standards in the provision of mediation services by the council rather than in the code of practice under section 9. I note that codes of practice for mediators in other jurisdictions do not include the provision for such training. I have sympathy with what the Senators wish to impose by way of these amendments and I regret it is not possible to accept in the form as proposed.

We have reached an impasse in this regard. I take the Minister at his word that he accepts the sincerity with which the amendments have been made by Senator Ruane and me and others. I should probably have referred more specifically to amendments Nos. 3 and 4 given that we are taking them together. As we discussed the spirit of them yesterday, I appreciate the Minister's response in acknowledging all of that.

I will push these amendments to a vote because as the Minister rightly acknowledged, we are coming at this from a sincere point of view and think there is merit in it. At the heart of this is a victim-centred approach - a human rights-centred approach. I have made the points. The amendments speak for themselves. It would have been remiss of me, my Sinn Féin colleagues and other colleagues had we not articulated the real human experience and concerns that drove the intention behind these amendments. I believe it would have added to this Bill and would have gone some way towards assisting survivors of domestic abuse who find themselves in this situation. Senator Ruane spoke very passionately and eloquently about that yesterday and I have no doubt she will do the same today. I thank the Minister but on this point, we must agree to disagree.

I will pick up on two points. The Minister stated it would almost be intrusive to ask whether domestic violence exists. I would much prefer a solicitor being intrusive than ending up in a situation that would harm me or my children. Consequently, I would choose someone being intrusive any day. The Minister also said he could not imagine somebody entering into mediation if they had ever experienced domestic violence. This is completely untrue. Experience tells me that it is untrue. People enter their homes at night when they experience domestic violence. They live in homes with people who abuse and batter them. They go to family gatherings where abusers are to be found. They sometimes have to work in the same building as their abusers and to assume a person would not enter a mediation room because their abuser is in the room with him or her is a completely false idea.

I have supported many women, especially in the family law courts. I will not be able to use them as examples because I have to protect their identity, but one of them, who is no longer with us having passed away several years ago, went into mediation with not only her abuser but somebody who solicited her to feed his drug habit and who subsequently warned her that if she did not enter the mediation room he would lie about her ability to look after her child and that he would then take her through the courts to get custody of that child. He kept that threat hanging over her in a mediation room in order that she would agree to access and certain maintenance. People will enter a room with their abuser. They do it every day. That is a completely false way to look at this.

I agree with the Minister on this matter. This Bill has been carefully drafted and he has taken into account all of the issues. I also take on board the concerns of the proposers of the amendments. They are very genuine concerns but the way this matter has been dealt with in the Bill is the appropriate manner. We should not accept the amendments as set out and we should accept the Bill as brought forward by the Minister to this House.

Amendment put:
The Committee divided: Tá, 16; Níl, 21.

  • Bacik, Ivana.
  • Black, Frances.
  • Boyhan, Victor.
  • Conway-Walsh, Rose.
  • Craughwell, Gerard P.
  • Devine, Máire.
  • Dolan, John.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Kelleher, Colette.
  • Nash, Gerald.
  • Ó Donnghaile, Niall.
  • Ó Ríordáin, Aodhán.
  • O'Sullivan, Grace.
  • Ruane, Lynn.
  • Warfield, Fintan.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Conway, Martin.
  • Feighan, Frank.
  • Gallagher, Robbie.
  • Hopkins, Maura.
  • Horkan, Gerry.
  • Lawless, Billy.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • O'Sullivan, Ned.
  • Richmond, Neale.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Paul Gavan and Niall Ó Donnghaile; Níl, Senators Gabrielle McFadden and John O'Mahony..
Amendment declared lost.
Section 3 agreed to.
Sections 4 and 5 agreed to.
SECTION 6

Amendments Nos. 2, 5 and 9 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 2:

In page 9, between lines 5 and 6, to insert the following:

"(d) request interpretation services where a language barrier exists.".

This is very important not just where English is not the first language of both parties but where it is not the first language of one person. That may already cause a conflict. There is also the deaf community to be considered. We have all been thinking about them recently because we have been debating the Irish Sign Language for the Deaf Community Bill 2016. People can only engage in a meaningful mediation if they have language support. There is a power balance to consider if English is the first language of only one of two parents who are separating. It is important that there is somebody there who can support the other party and keep the balance of power between them. The amendment is obvious. I do not feel that anyone is listening.

I am listening to Senator Ruane. We support the amendment for the reasons outlined by Senator Ruane.

We would also like to take the opportunity to outline our concerns regarding interpretation services and the legal system as it stands in a broad sense. It is astonishing that in this day and age there is no regulation of the standards of interpretation. Court and legal interpretation is a highly specialised area that needs a significant level of training, as the Minister will appreciate. All that appears to be required for interpreters now is that they speak English and the language they are translating.

Senator Ruane mentioned sign language and all the issues of extreme marginalisation the deaf community face. This would be another example of that and one we could help resolve by accepting this amendment.

I support the amendment which is very important to ensure equal access to the law. If we are proposing mediation as an alternative to legal process, it is important that it does not serve as a disadvantage or that it does not imply a lower standard of equality before the law or within a process. There are wider concerns such as our international protection Acts and the question of documents translated through services such as Google Translate. There is concern about the lack of accountability and standards in respect of interpretation and translation of necessary documents. This is a relevant amendment and I encourage the Minister to accept it. If he is not going to accept it can he indicate how he plans to address this concern and ensure that it is addressed in mediation?

Amendment No. 2 proposes to amend section 6(4) by inserting a provision whereby a party may request interpretation services where a language barrier exists. I would draw the House's attention and that of the Seanadóirí who have tabled this amendment to section 6(4)(b) of the Bill which provides that a party may: "(b) be accompanied to the mediation, and assisted by, a person (including a legal advisor) who is not a party". I believe that section 6(4)(b) covers a situation where a party requires translation services. My Department has been informed by the Mediators Institute of Ireland, MII, that the presence of an interpreter during mediation is already a relatively frequent occurrence. I do not see the need for the amendment.

Amendment No. 5 proposes to insert into section 9, which deals with codes of practice, a provision relating specifically to the issue of Irish language proficiency standards for mediators. I accept the point made about our native tongue but I believe that a code of practice for mediators is not the correct place to deal with training standards or language proficiency and, therefore, I cannot accept it. Developing standards in the provision of mediation services will be a matter for the mediation council following its establishment.

Amendment No. 9 seeks to insert in the Schedule to the Bill a further function for the proposed mediation council, the establishment and maintenance of a register of mediators who are able to provide mediation services in the Irish language. I do not believe that requiring the council to establish two separate registers is necessary or desirable. It could lead to confusion for clients looking for a mediator.

There is an obligation on the mediator to furnish the parties with information regarding his or her qualifications, experience, training and continuing professional development under 8(1)(b) of the Bill. The Mediators' Institute of Ireland has confirmed the availability of Irish language services so there should not be significant difficulty in procuring such services should they be required. I do not see the amendment as adding anything to the services which already exist and therefore I do not accept it.

I do not believe the provisions set out in section 6(b) are an adequate solution. Simply saying that people may be accompanied by a party places the obligation to source their own interpreter entirely on them. It privileges those who may have financial resources that are greater than others, so once again, we are introducing inequality into the process.

I remind the Minister that this entire Bill is about directing people into mediation services. We are not merely suggesting that we impose standards or regulations on a particular sector out of the blue. This Bill seeks to make sure that people are informed, that solicitors will have to sign affidavits to say that they have told clients about mediation, and have encouraged them into that. If, through this legislation, we direct people towards the mediation process, I believe it is appropriate for us to ensure that the best standards are in place.

Every public body and Department has a duty to equality and human rights. It is set out in our equality legislation. There is a positive, public duty to equality and human rights so where there is any concern that an inequality may arise through a legal provision that we are putting forward in law, it is a matter for the Oireachtas and the Minister and his Department. If he cannot address it through the legislation, I suggest he would engage meaningfully with the question of standards and equality and that he suggest what he would do in this area by way of a ministerial order or other guidance or standard setting. It is not acceptable to say that this is an area outside of us, when we are legislating towards it.

On being accompanied by a person, it is very important to be clear that a solicitor is not an interpreter. It says "a person". Will an individual have to decide between a solicitor and an interpreter? Will we have to hope that people find solicitors who can speak 20 languages and one of these happens to be their own? Are we leaving ourselves vulnerable to the heartbreaking situation which we heard in this House, particularly with regard to Irish Sign Language, where inappropriate situations can arise such as when children are asked to come in and interpret in disputes between their parents or in situations of violence. Are we asking that people would find their own person and have someone within their community to interpret, denying them privacy? This is a very reasonable provision and I ask that if the Minister cannot accept it as an amendment because he wishes to push this Bill through, that he would at least hear it as a concern and plan to take action in future.

Ba mhaith liom cur leis an méid ata ráite ag an Seanadóir Ní hUiginn. We spoke on amendment No.5 on Second Stage yesterday. While I welcome that this jurisdiction allows people the opportunity to engage with the legal system through the medium of Irish, I do not see what harm there is in allowing for the training and adequate provision of people with the necessary fluency and proficiency in Irish to provide mediation services.

Of course there is not any harm.

I accept that. I am not diverging from the spirit in which we have approached these amendments.

I am only replying to what the Senator said. There is no harm.

In that case I contend that the Government should accept the amendment and provide for what is allowed for in the Constitution, namely, for people to engage with the State and its structures and processes through the medium of Irish. I accept that there is provision within the legal system and sometimes people do not have the opportunity to do that because that sector does not employ people with proficiency in Irish. This is something my colleagues have been examining in the context of the judicial appointments Bill, for instance, so that there would be more members of the judiciary able to engage through Irish.

We believe that if the State is going to direct people to use mediation that they should be sure that it is available in both official languages of the State and that is why we have tabled this amendment. Má táimid chun daoine a stiúriú chun leas a bhaint as an bpróiseas seo, ba cheart go mbeidís in ann úsáid a bhaint as an nGaeilge nó as an mBéarla - pé teanga a roghnaíonn siad chun a saol a chaitheamh - mar atá curtha i leith i mBunreacht an Stáit. Creidim go bhfuil fadhb ollmhór anseo. Dar ndóigh, amharcfaimid air de réir mar a théann sé ar aghaidh. Muna bhfuil an tseirbhís seo curtha ar fáil trí mheán na Gaeilge do dhaoine atá ag iarraidh a gcuid idirghabhála, a gcuid gnó agus a gcuid idirbheartaíochta a dhéanamh trí mheán na Gaeilge, beidh impleachtaí dlíthiúla i gceist. Má ta an Stát ag cur bac ar an ábaltacht sin, is fadhb ollmhór é. Mar a dúirt mé inné, tuigim go maith cad a tharlaíonn nuair nach gcuirtear an Ghaeilge ar fáil tríd an gcóras dlí. Ar an drochuair, tá bac iomlán curtha ar úsáid na Ghaeilge sa chóras dlí ó Thuaidh. Tá deis againn dea-shampla a leagadh síos sa chomhthéacs seo a thaispeánfadh go bhfuil an Stát agus an Rialtas - as muidne mar Baill an Oireachtais - go daingean i dtacaíocht leis an bhforáil seo. Ba cheart go mbeimid in ann struchtúirí praiticiúla a chur ar fáil a ligfeadh do dhaoine an teanga a úsáid chomh minic agus chomh ábalta agus is féidir leo.

I would never question the sincerity of the person putting forward this amendment, as I know it is sincerely meant. However, we can make legislation far too prescriptive and it can have the opposite effect to that which was intended.

This Bill proposes that there will be a code of practice and a mediation council. The mediation council will have an obligation to ensure that the code of practice has a broad discretionary influence and power, and reflects all the nuances that exist. I do not see the logic in putting the need for mediators who can work through the medium of Irish in the legislation. Of course we have mediators who can work through Irish because it makes sense.

If someone is a trained mediator and has fluent Irish, he or she will attract business from those who wish to engage through Irish. There was a case in Galway where a plaque or sculpture had to be removed at enormous cost to Galway County Council because it featured three mistakes in the Irish section. They were only small mistakes, and some people interpreted the text differently and argued that they were not really mistakes at all. We have to be realistic. Putting an amendment such as this in the Bill serves no purpose and achieves nothing. We are far better off ensuring that the mediation council is established and that its code of practice is as detailed as possible, including all the nuances which have arisen in the course of this debate.

Senator Conway has put his finger on it. I do not see the necessity for Senator Ó Donnghaile's amendment in so far as the proficiency of mediators in the Irish language is concerned. It is a matter that will be dealt with in the context of training and standards under the auspices of the council which is the most appropriate place.

I make a similar comment on those who wish to conduct a legal or court case through the Irish language. Such services are freely available. I am not sure to whom Senator Ó Donnghaile is referring when he states that people do not have this opportunity. I do not believe it to be the case. Anybody who wishes to litigate or appear in the courts of the land through the medium of the Irish language is accommodated. I expect the same level of service to be accommodated to people wishing to mediate through the Irish language.

I missed Senator Higgins's contribution on Second Stage but I certainly bemoan the aggressive tone of her contribution. This is a Bill on the part of the Government that has cross-party support and is long-awaited and broadly welcomed. There is no intention on the part of the Government or anybody to restrict the avenues through which people might engage in mediation. Nobody is trying to put obstacles in front of anybody. The Senator referred to cost and under the legal aid scheme, as I am sure she is particularly aware, the Legal Aid Board will cover the cost of interpretation or language services when legal aid is provided under the criteria. It is also somewhat disingenuous of the Senator to make the point that the legal adviser would also be the interpreter. I do not know of any instance where that is the case and I do not believe there is such an intention in the law. For the reasons I made clear earlier, I do not intend to accept the amendments.

I not believe I am speaking in an aggressive manner; I am speaking in a robust manner because every piece of legislation that comes through needs appropriate scrutiny. We speak of cross-party support but we are a group within the Seanad and we are asking questions. It is not a simple matter and we are not here to rubber-stamp proposals. We are here to ask appropriate questions.

Nobody suggests obstacles have intentionally been put in place. It was never a suggestion. We simply reminded the Minister and the House that there is a positive public duty - a proactive duty - to ask if we are actively supporting equality in this and actively working to ensure an equality of process. That is what is set out in the founding legislation of the Irish Human Rights and Equality Commission and what public duty means. It means we need to be constantly vigilant to ensure we are actively working to promote an equality of experience and access. I am certainly not saying obstacles are intentionally being put in the way but rather I am concerned as to whether we are giving due consideration to equality matters. It is an important question that should be asked of every piece of legislation and the earlier in the process, the better.

There were questions concerning the Legal Aid Board, interpretation and mediation. I did not suggest that people have to go with solicitors who are also interpreters but I asked the question of whether we have ensured in this legislation that people do not find themselves in a torn position because it sets out that a person would be brought in. Will the Minister address my specific question? Is he concerned that the phrase is "assisted by a person"? Is there any potential difficulty or tension between someone having to choose between an interpreter and a lawyer? It is a legitimate question that is important to ensure people have the necessary supports going into mediation. I would like that question answered.

I am baffled but one can create scenarios. The code of practice that will be developed and put in place by the mediation council will ensure an ethical framework will exist to guarantee that type of scenario just will not happen. To a large extent, it is a fantasy world. It will not happen. I had a motion here on mediation in 2013 and we debated the topic for two hours. Back then there was very little mediation and it is a great that the Government will now have a statutory framework with this legislation so it will be a requirement for solicitors to recommend mediation and give clients names and addresses of mediators. A mediation council will set a code of practice. I do not see the sense in this amendment.

I will be brief as I do not want to hold up the Bill. We have codes of practice across many sectors and this does not mean they are adhered to. They need to be underpinned by legislation. Only last year somebody from the deaf community had to sit through a court proceeding without an interpreter. I am sure there must be some sort of code of practice around that but it was not adhered to. We have people in hospitals and waiting rooms in doctors' surgeries who should also be adhering to codes of practice but instead there are children delivering diagnoses of breast cancer and all sorts of conditions to parents who either do not have English as a first language or are from the deaf community. Codes of practice are only strengthened by having legislation underpinning the process. It is not a positive to always turn to codes of practice and guidelines and we should underpin everything we do by legislation to make it stronger so somebody must have the right to request interpretation.

I point to a long-established practice under Irish and international law. We have obligations under human rights laws that interpretation be provided in these circumstances. That is fundamental. That will be the case under this Bill as well. With regard to the number of persons involved, I point out again the long-established code of law under our interpretation Acts in which the singular includes the plural. I do not see the concerns of the Senator being such as she would like them to be. I assure her it is the desire of the Government in introducing this legislation to provide an alternative that is more cost-effective, less adversarial and to the benefit of the public. That is without any intent on the part of the Government to disadvantage people and certainly not to introduce or tolerate any form of unfairness or inequality; the opposite is the case as far as this legislation is concerned. It is a theme right through the Bill.

Amendment put and declared lost.
Section 6 agreed to.
Section 7 agreed to.
SECTION 8

I move amendment No. 3:

In page 10, between lines 2 and 3, to insert the following:

"(iii) make enquires separately with the parties as to whether there has been domestic abuse in the relationship to assess if the case is suitable for mediation,".

Amendment put:
The Committee divided: Tá, 14; Níl, 21.

  • Bacik, Ivana.
  • Black, Frances.
  • Conway-Walsh, Rose.
  • Devine, Máire.
  • Dolan, John.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Kelleher, Colette.
  • Nash, Gerald.
  • Ó Donnghaile, Niall.
  • Ó Ríordáin, Aodhán.
  • O'Sullivan, Grace.
  • Ruane, Lynn.
  • Warfield, Fintan.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Horkan, Gerry.
  • Lawless, Billy.
  • Leyden, Terry.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • O'Sullivan, Ned.
  • Richmond, Neale.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Paul Gavan and Niall Ó Donnghaile; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.
Section 8 agreed to.
SECTION 9

I move amendment No. 4:

In page 10, between lines 36 and 37, to insert the following:

“(b) training for mediators in relation to domestic violence awareness and working with perpetrators and victims of domestic abuse;”.

Amendment put:
The Committee divided: Tá, 14; Níl, 24.

  • Bacik, Ivana.
  • Black, Frances.
  • Conway-Walsh, Rose.
  • Devine, Máire.
  • Dolan, John.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Kelleher, Colette.
  • Nash, Gerald.
  • O'Sullivan, Grace.
  • Ó Donnghaile, Niall.
  • Ó Ríordáin, Aodhán.
  • Ruane, Lynn.
  • Warfield, Fintan.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Conway, Martin.
  • Daly, Mark.
  • Feighan, Frank.
  • Gallagher, Robbie.
  • Hopkins, Maura.
  • Horkan, Gerry.
  • Lawless, Billy.
  • Leyden, Terry.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Mullen, Rónán.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • O'Sullivan, Ned.
  • Richmond, Neale.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Paul Gavan and Niall Ó Donnghaile; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

Before we move to amendment No. 5, I welcome Deputy Dara Calleary to the House. He has with him the Unity Racing group from County Mayo which will represent Ireland in the world Formula 1 student championship in Malaysia in September. I wish them luck and welcome them to the Chamber.

I move amendment No. 5:

In page 11, between lines 7 and 8, to insert the following:

“(h) Irish language proficiency standards for mediators who wish to provide their service in Irish;”.

Amendment put:
The Committee divided: Tá, 14; Níl, 23.

  • Bacik, Ivana.
  • Black, Frances.
  • Conway-Walsh, Rose.
  • Devine, Máire.
  • Dolan, John.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Kelleher, Colette.
  • Mullen, Rónán.
  • Nash, Gerald.
  • O'Sullivan, Grace.
  • Ó Donnghaile, Niall.
  • Ó Ríordáin, Aodhán.
  • Ruane, Lynn.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Conway, Martin.
  • Daly, Mark.
  • Feighan, Frank.
  • Gallagher, Robbie.
  • Hopkins, Maura.
  • Horkan, Gerry.
  • Lawless, Billy.
  • Leyden, Terry.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • O'Sullivan, Ned.
  • Richmond, Neale.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Paul Gavan and Niall Ó Donnghaile; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.
Section 9 agreed to.
Sections 10 to 13, inclusive, agreed to.
SECTION 14

Amendment No. 6 is in the name of Senators Ruane, Higgins, and Black. Amendments Nos. 6 to 7, inclusive, are related and may be discussed together by agreement.

I move amendment No. 6:

In page 15, between lines 4 and 5, to insert the following:

“(d) advise the client that mediation is voluntary and may not be an appropriate means of resolving the dispute if domestic abuse has occurred,”.

The Civil Engagement group supports the Bill as a whole. There was some mention earlier that we had implied the Government would be putting obstacles in the way. That is not what we are trying to do; we are trying to identify the obstacles and asking the Government to work with us to remove them. We are not saying the Government is putting those obstacles in place. They are two very different things.

Amendments Nos. 6 to 8 are underpinned by the same principle and spirit. I have decided to withdraw amendments Nos. 6 and 8 so I will speak to amendment No. 7, which is the mildest of the three. It also answers the questions the Minister had about barristers or solicitors feeling they were being intrusive when asking somebody if there was any sort of safety implications or violence within the household. The effect of amendment No. 7 would be to insert in page 15, between lines 4 and 5, the provision that the solicitor must "advise the client that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk". It is just a line to remind the person that it is voluntary and may not be an option for the person if there is a risk to his or her safety. It does not mean asking the person questions or getting involved in his or her domestic dispute. Its purpose is to remind the parties that mediation is voluntary and it does not have to be taken up as an option. I will not go on. I will finish on that because we have a very important Bill to get to at 5 p.m. It is a mild amendment and I hope the Minister can support us on it.

I second the amendment, which is a new one and different from any amendments that were tabled in the Dáil. It is a very simple instruction. When solicitors are explaining the option of mediation to clients, they would include in the explanation advice that mediation is voluntary and may not be an appropriate means of resolving a dispute where the safety of the client or his or her children is at risk. I will not go into the contact we have had which we have already talked about. It is a simple proviso that makes sure a situation will not arise where people feel because a professional is telling them they have to do something that they need to do it.

If there is an underlying concern in respect of domestic violence, even if it is not the issue at hand, it may affect the power dynamic and it may affect the experience of mediation. It is a neutral proviso which can be communicated by solicitors to all clients. As the Minister outlined earlier, people will have the option to choose not to proceed because it is voluntary but this underscores the option for people who may come from a climate of intimidation and may feel intimidated or pressed to oblige. It would be constructive if the Minister accepted this amendment.

I wish to repeat what my colleague, Senator Ruane, said. We support the legislation but this amendment is very important for a number of reasons. In my work with the RISE Foundation, which works with families who have somebody they love with an alcohol, drug or gambling problem, families often experience trauma particularly when it comes to some form of domestic violence or controlling behaviour and they do not know how to cope with it. They might present themselves in front of a lawyer such as a solicitor, terrified, feeling the trauma and looking for guidance. My only concern is that if this is recommended to them, they will do it and it may be dangerous for them. That is my concern so this is a really important amendment. I hope with all my heart, in particular, because of the families I work with, that the Minister will support it.

I am conscious we dealt with this issue yesterday on Second Stage and also in the earlier grouping of amendments. I support the spirit of these amendments, in particular amendment No. 7, which is the most precisely drafted of the three. It seeks to address the issue identified by Women's Aid and others and it is recognised in the text of section 3 of the Bill that domestic violence cases are not suitable for mediation. This is a sensible way of seeking to address cases which are not directly domestic violence proceedings but in which there may be safety issues for a client and his or her children. It is a sensible way of seeking to address the concerns we all expressed, including those I expressed yesterday on Second Stage.

While I fully accept the intentions of the proposers of the amendment, the section sets out quite clearly that a client should be advised to consider mediation as a means of attempting to resolve a dispute which is the subject matter of proceedings. It is about advising clients to consider mediation, not that they must engage in mediation. It is about considering it which is adequately dealt with in the section. Every legal adviser has to advise people that going into mediation is voluntary and that they do not have to go into mediation if they do not want to. They would have a legal obligation regardless of what is in the Act. It is about considering going into mediation, not saying that a person has to. The Bill adequately deals with that issue.

I support the amendment for all the reasons the proposers have outlined and for others. A remark made by Senator Black is worth reiterating at this late stage. We support the Mediation Bill, what it is about and what it is trying to do. We have tried to work with the Minister as I said yesterday to try sincerely to enhance the nature of the Bill. The proposal contained in this amendment is a modest one. It is in many ways a bit of a compromise proposal. Perhaps in the spirit of an pholaitíocht nua - the new politics - the Minister might reflect on what contributors have said and the reasons why they want to make the proposal in this amendment a reality.

I have been considering this amendment and the consequences to which it would give rise since it was tabled. I acknowledge the Senators' intention, but I do not believe new politics is the exercise of consensus just for the sake of it. We have an obligation to ensure that the laws we enact and the amendments we make do not have consequences that might not be immediately apparent. I have listened carefully to the contributions of the four Senators but to achieve the objective they seek would require amending the Judicial Separation and Family Law Reform Act 1989 and the Family Law (Divorce) Act 1996. This amendment will not achieve the objective in question because the relevant Acts to which the Senators refer are those I mentioned.

Section 14 of the Bill imposes obligations on those acting for clients, particularly legal professionals, to advise the clients to consider using mediation as a means of resolving the dispute, as Senator Colm Burke said, and to provide them with information concerning the advantages and benefits of using mediation as an alternative to court proceedings. They must provide the information on the availability of services, including details of persons who will provide such services.

As we have acknowledged from the outset, the core principle in this legislation is that mediation is a voluntary process. Having regard to the voluntary nature of the process, there are times when mediation will not be an appropriate means of resolving a dispute and one of those is where domestic violence has occurred or where the safety of a party or a minor is at risk. I again emphasise that the core of the Bill is that mediation will remain a voluntary process. This is clear from the definition in section 2, so there is no need to mention the voluntary aspect of mediation anywhere else in the Bill. It is already included.

I understand the concerns of Senators regarding cases in which domestic abuse or safety issues might arise in the context of family law proceedings or in cases involving custody issues or access for children. As I mentioned with regard to an earlier amendment, section 14(4) provides that this section, including its obligations on solicitors and legal personnel, does not apply in cases of applications under the Judicial Separation and Family Law Act 1989 and the Family Law (Divorce) Act 1996. Separate mediation related obligations on solicitors are set out in sections 5 and 6 of the 1989 Act in the case of judicial separation applications and in sections 6 and 7 of the 1996 Act. Those sections are amended in sections 25 and 26 of the Bill in order to ensure consistency and coherence between the 1989 and 1996 Acts and this legislation.

I note what the Senators said about opting for what has been described as the softest of the amendments, No. 7, but I am unable to accept any of the amendments because section 4(14) disapplies its provisions in respect of family law proceedings under the 1989 Act and divorce proceedings under the 1996 Act. That is the difficulty. Of course, should the Seanad decide to accept the amendment, however well-intentioned that decision might be, it would have the effect of requiring the Dáil to sit next week to deal with the matter.

I do not mind.

All bets are off.

Senator Mark Daly does not appear to have a difficulty with that. I am in the hands of the Seanad. We have given some time to debating this legislation today. I can stay here all night but I am subject to the rules of the Oireachtas where amendments are concerned. It was my hope, and it was the hope of Senators earlier, that we would be able to pass this important legislation to Áras an Uachtaráin for signature at the earliest opportunity. Should the House decide to accept any of these amendments, however, I will be in its hands. Acceptance of amendments would prolong the process for the sake of something that, as Senator Colm Burke said, might well be adequately catered for in the legislation in any event.

Amendment, by leave, withdrawn.

I move amendment No. 7:

In page 15, between lines 4 and 5, to insert the following:

“(d) advise the client that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk,”.

Amendment put:
The Committee divided: Tá, 21; Níl, 16.

  • Bacik, Ivana.
  • Black, Frances.
  • Conway-Walsh, Rose.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Devine, Máire.
  • Dolan, John.
  • Gallagher, Robbie.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Horkan, Gerry.
  • Kelleher, Colette.
  • Leyden, Terry.
  • Mullen, Rónán.
  • Nash, Gerald.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • Ó Donnghaile, Niall.
  • Ruane, Lynn.
  • Warfield, Fintan.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Richmond, Neale.
Tellers: Tá, Senators Frances Black and Lynn Ruane; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared carried.
Amendment No. 8 not moved.
Section 14, as amended, agreed to.
Sections 15 to 26, inclusive, agreed to.
Amendment No. 9 not moved.
Schedule agreed to.
Title agreed to.
Bill reported with amendment, received for final consideration and passed.