Mediation Bill 2017: From the Seanad

The Dáil went into Committee to consider an amendment from the Seanad.
Seanad amendment No. 1:
Section 14: 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,".

The amendment to the Mediation Bill passed in the Seanad just before the recess inserts a new provision in section 14, which requires a solicitor to advise a 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 a matter of risk.

I opposed this amendment for various legal reasons and my views are on the record in both the Seanad and here in Dáil Éireann following a detailed debate. I intend to keep the operation of the amendment under review to ensure that it does not have a detrimental effect on the effectiveness of the legislation, the fundamental purpose of which is to encourage the use of mediation by people to resolve their disputes rather than going down the costly and often stressful route of court proceedings and all that entails. Of course, by its very nature, mediation is a voluntary process. That is spelled out in the definition of mediation in section 2 of the Bill.

In the interests of speedy enactment and implementation of this important and long-awaited Bill, I am not opposing the amendment agreed by a majority and passed in the Seanad. However, based on the amendment being made, I would like to formally request a correction of the text of the Bill to move the word “and” from its current position on line 4 of page 15 to line 7 and to re-designate the original sub-paragraph (d) as sub-paragraph (e). This is necessary to ensure that the text reads correctly. I do not want to impose any undue complication or difficulty on Members but I believe it is essential that everything we do is clear so I ask the indulgence of Members of the House for this correction in the text of the Bill, which will ensure there is a proper and correct textual context.

I repeat that court proceedings can be very costly. They can also be very stressful and time-consuming. This Mediation Bill will promote mediation as a viable, effective and efficient alternative to such court proceedings. Enactment of the Bill will speed up the resolution of disputes, reduce legal costs associated with these disputes and reduce or avoid the stress involved in court proceedings which, by their very nature, are adversarial.

Once the Bill is passed and enacted, I look forward to receiving submissions from interested parties regarding the publication of codes of practice for mediators under section 9 and the setting up of a scheme to provide mediation information sessions for people involved in family law disputes as provided for under section 23.

In addition, I repeat my call to various bodies active in the mediation sector to come together to meet, collaborate and submit proposals regarding the setting up of a mediation council as provided for in section 12 of the Bill. I believe the early establishment of such a body would provide further stimulus to the use of mediation following enactment of the legislation.

I repeat my thanks to Deputies for their support for this important legislation. I hope that we could complete debate on this issue in its entirety this evening, but I am in the hands of Deputies in that regard.

Fianna Fáil will also be supporting the amendment accepted by Seanad Éireann. I also put on the record that I agree with what the Minister has said in respect of correcting the text and moving around the proposed amendment within the body of the Mediation Bill.

The amendment that has come from Seanad Éireann seeks to ensure that a solicitor or barrister, when advising their client about mediation, recognises that it may not be appropriate in certain instances. In fairness to the draft legislation that went through this House previously, it is recognised that the Act shall not apply to proceedings under the Domestic Violence Acts and under the Child Care Acts. The Domestic Violence Acts deal with issues where there is domestic violence. It would be wholly inappropriate for mediation to apply in that context. Similarly, under the Child Care Acts, there are provisions such as section 12 and other provisions dealing with instances where children are to be taken into custody. In those instances, it would also not be appropriate.

One argument would be that on the reading of the Bill as it is at present, it is unnecessary to make the amendment but, nonetheless, there is a benefit in putting an obligation on a solicitor to ensure that if he or she believes it is not an appropriate means of resolving the dispute because of a threat to the safety of the client or the client's children, this should be so advised by the solicitor. Even if this provision was not contained within the Mediation Bill, any competent and reliable solicitor would recognise that it would be important to advise the client of those particular circumstances.

We will support the amendment. It is hoped we can now move quickly to get this legislation passed through both Houses of the Oireachtas. It is important to recognise, however, that notwithstanding the fact that the amendment probably covers issues that would be referred to as family law issues, mediation is something that should be availed of by practitioners within family law. It is much more appropriate for people who are married, getting separated or divorced if they try to resolve their differences between themselves with the benefit of mediation rather than having to have a court imposed solution. One may never get exactly what one wants in every respect, but it is far better if there is an agreement as opposed to an imposition of a solution on the parties. We will be supporting the amendment.

We, too, strongly support the amendment and welcome the Bill. I ask the Minister to respond to me by advising how his change of the numerical order of the amendment will impact on the overall intention of the Senators' amendment. As I understand it, they recognise that these measures are already in the Bill but that this will copperfasten the idea that legal advice should be given to those to whom mediation is being recommended, that it is not always in their interests to go down that route, and that they might have to reconsider it.

One of the strongest recommendations for supporting this amendment should come from the fact that it is supported by Women's Aid, an organisation that is working on the ground and has experience over many years of the circumstances of dealing with this horrendous social issue, which is on the increase and is a very worrying response of modern society to both women and children and family life in general. The question of having no other option but to go into mediation should be considered, and not just on the basis of reducing legal costs, although I accept that is important.

There are all sorts of ways of reducing costs or making things more efficient. However, families should not be forced into situations that might be dangerous or not in their best interests or circumstances that might put them in any way at risk. In addition, mediation should not be forced upon them. I can certainly think of a few cases I personally know of where mediation would not work and could put women, children or the abused parties at risk, so it is very important that clause is there and is copperfastened in legal language. I commend the Senators on tabling the amendment but I ask the Minister to explain clearly the impact his moving things around and renaming them will have on the overall intention.

Ba mhaith liom cuidiú leis an leasú. Is dóigh liom go dtabharfaidh sé cúnamh agus cosaint bhreise do dhaoine sna cásanna seo. Cinnteoidh sé go bhfaighfidh siad comhairle chuí óna ndlíodóirí sa chomhthéacs seo. I support the proposed amendment, commend Senators Ruane, Higgins and Black on having proposed it and welcome the fact that the Minister is not opposing it. That is positive. While there are provisions that, it could be argued, cover the amendment, it is appropriate that there is a provision outlining the fact. It is just a matter of full disclosure to people in this situation. I think that is important and welcome to people who are potentially concerned about domestic violence.

I commend the Bill to the House. We will not oppose it and we support the Minister's comments that mediation has a very valuable role to play, that it is under-utilised and that it can achieve cost savings and, very often, more satisfactory results.

I thank the Deputies for their support and acknowledge their contributions. To respond to Deputy Bríd Smith, the changing of the numerical order is merely to facilitate the amendment. The amendment, as passed by the Seanad, is being incorporated into this legislation. It is merely for ease of reading that the order of the paragraphs has been changed. I felt in the Seanad that the amendment was unnecessary and I still feel that way but I acknowledge the will and wishes of the Seanadóirí when the matter was voted upon. In that context, I am following to the letter the wishes of Seanad Éireann by not opposing the amendment on this Stage. I assure Deputy Bríd Smith that the correction I propose to the text of the Bill is based on the amendment having been made by the Seanad. I am not in any way interfering with the subject matter of the amendment in such a way as to impact on the wording, other than to accept the Seanad amendment, notwithstanding the reservations I expressed on the evening in question.

I think the Minister needs to read his amendment again into the record of the House. Will he do so? He had a slight correction to make.

The amendment, as made by the Seanad, which I am anxious to be included in the final text of the Bill, reads:

SECTION 14: 1. 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,".

However, in effect, the text will move to subparagraph (e) for ease of reading. That is, a re-designation of the original subparagraph (d) as subparagraph (e).

Seanad amendment agreed to.
Seanad amendments reported.