Mediation Bill 2017: Second Stage

I move: "That the Bill be now read a Second Time."

I am very pleased to have this opportunity to introduce the Mediation Bill 2017 and I look forward to the discussion in the House on its early enactment. The general objective of the Bill 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 which, as we know, often accompanies court proceedings. The Bill also forms part of the Government's overall strategy to tackle the issue of legal costs.

The mediation service is very important. More than 20 years ago, when I was chair of the National Women's Council, we had a fledgling mediation service under Maura Wall Murphy and the Government of the day intended to abolish it. I intervened and ensured it was allowed to continue and we have seen its progress over the years. It gives me particular personal satisfaction to bring forward the Bill today. I saw the potential of mediation 20 years ago and I see it today. It has a vital role to play in reducing stress levels for people involved in various disputes and in providing a speedier, more efficient and less costly alternative to going to court.

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, that great body, the Law Reform Commission, once again reviewed the development and effectiveness of alternative dispute resolution mechanisms and recommended the enactment of legislation. The Bill takes on board much of what the Law Reform Commission had to say at the time. Meanwhile, revised rules of the Superior Courts, which facilitate and encourage the referral of disputes to a process of mediation or conciliation, have come into operation.

This matter has been discussed by the Joint Committee on Justice, Defence and Equality and no doubt members of the committee will have comments to make on the various consultations done by the committee. Many of them have been taken on board.

Mediation is defined in the Bill as a facilitative 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 use of the word "voluntary" in this context. Mediation is, and must remain, a voluntary process although, of course, the court can recommend it and court proceedings can be put aside when people take part in the mediation. Moreover, while the Bill seeks to promote mediation as an effective and viable means of resolving disputes, it is inappropriate for certain types of disputes, such as claims against the State for alleged infringements of fundamental rights or proceedings concerning children under the Child Care Acts. The Bill outlines the areas where we feel it is not appropriate for mediation to be used.

I have no doubt Deputy Jim O’Callaghan will be interested in the next aspect, and I look forward to hearing his practical experience on it, and this is with regard to the obligation it puts on solicitors and barristers with regard to mediation. Put simply, the Bill requires solicitors to advice their clients to consider the use of mediation. I have no doubt many solicitors and barristers already do this and anecdotal evidence certainly suggests this is so. The Bill also requires them to provide their clients with information on available mediation services before embarking on court proceedings. It makes this provision for solicitors and it will apply to barristers if and when in future they are permitted to issue proceedings directly on behalf of clients.

The Bill also requires that solicitors make a statutory declaration that the obligations placed on them by the legislation are discharged. We also make provision in the Bill for the development of a mediation council. This is not part of the general scheme of the Bill, but the legislation contains an enabling provision so such a council could be established. As we know, various bodies are involved in mediation. If they come together and, at a future date, the then Minister with responsibility for justice is satisfied that body can do the work of regulation in this area and develop an appropriate council, the Bill contains an enabling provision for this to happen.

We want the main provisions of the Bill to come into operation at the earliest possible opportunity but specific orders will be required at a later stage. We have various definitions in section 2. I have already spoken about the fact that the Bill will not apply to disputes arising in certain areas such as those covered by the Workplace Relations Commission, matters under tax and customs legislation, child care, domestic violence, judicial review and proceedings against the State in respect of alleged infringements of fundamental rights. Nothing in the Bill is intended to replace a mediation or other dispute resolution process in any other statute or in any contract or agreement. The Bill also contains a number of standard provisions on expenses.

Section 6 makes it clear that participation in mediation must be voluntary and it is for the parties themselves to determine the outcome of the mediation. The approach includes qualifications for mediation, an outline of how the process will be used, the role of the mediator, the actions the mediator must take prior to the commencement of mediation and how the mediator must behave during mediation sessions. A mediator may, exceptionally and at the request of all parties, make proposals for the resolution and the Law Reform Commission stated this could happen, but generally speaking it will be for the parties to the dispute to agree the resolution.

For the first time we will have a code of practice in statute for mediators. Everyone will agree this is important. This may be prepared and published by the Minister. If another body comes into existence at a later time that body can draw up regulations and the Minister can approve them.

Confidentiality is very important in mediation. All communications by the mediator with the parties and all notes and records relating to mediation will be confidential and cannot be used in other proceedings. However, there are some exceptions. There is also a section dealing with enforceability.

With regard to section 12, I have already spoken about the possibility of a mediation council, which would be known as the mediation council of Ireland, having a role. The section also provides that there can only be one mediation council in existence at one time and the council must be sufficiently representative of mediation interests and must also meet the minimum requirements provided for in the schedule to the Act. There is also the possibility of revocation. If such a mediation council comes into existence, it could make reports to the Dáil or Minister to outline its work.

Section 14 is a key provision which imposes obligations on a practising solicitor regarding mediation. It 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 the originating document to commence proceedings must be accompanied by a statutory declaration. This will be outlined in court and a statutory declaration will be written and signed. We must be absolutely clear that those who could benefit from mediation will be told this by a solicitor or, in future, by a barrister.

Section 16 empowers a court to invite parties in civil proceedings which 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. This is a very important section. If the section is used a report will be made to the court.

Sections 18 to 22 deal with the technical way mediation will be approached and fees and costs of mediation are also dealt with. The Bill also makes a technical amendment to the Civil Liability and Courts Act 2004 whereby mediation could be used for personal injuries actions on occasion.

Part 5 is about the provision of mediation information sessions in certain circumstances. 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 could be explained, and section 23 gives effect to this. The Minister may, for the purpose of 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 is, for example, already involved in the provision of a free family mediation service, the benefits of which are widely acknowledged.

This Bill is intended to 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 for many people. It is an extremely worthwhile Bill and I hope it will get widespread support across the House. It offers great potential for people in the circumstances which I have outlined and is a very positive alternative to court proceedings for certain situations. It will not be universal and I have described the variety of areas to which it will not apply, but there is potential to help many people who would otherwise face costly adversarial court procedures. Many people have trained in this area and it is well established. I look forward to the mediation council for which the Bill allows. I commend the Bill to the House.

Debate adjourned.