Amendments Nos. 1 and 3 to 9, inclusive, are related and may be discussed together.
Mediation Bill 2017: Committee Stage
Section 1 agreed to.
SECTION 2
I move amendment No. 1:
In page 5, between lines 26 and 27, to insert the following:
“ “civil dispute” means any civil dispute to which this Act applies by virtue of section 3;”.
I have three amendments in this section, amendments Nos. 1, 4 and 7. The whole purpose of the grouping is to seek to clarify that the Bill applies to a wider group of disputes rather than only those in which civil proceedings have been issued. We feel that the use of the word "proceedings" is likely to cause confusion for the public and for the mediators themselves and could give rise to a belief that in order for the protections of the Bill to apply, proceedings will have had to have been issued. It is to try to clarify some of those points. I know the Minister has tabled amendment No. 3 to change the definition of proceedings to civil proceedings that may be initiated before a court. What I am asking the Minister to clarify here is that this amendment means that the Bill applies to any dispute in which there is a potential to litigate, that the proceedings do not have had to have been issued. Could he clarify that in the context of this amendment and what kinds of disputes he thinks would be excluded from the provision? Notwithstanding the Minister's amendment, the argument remains that for the avoidance of doubt in the public's mind, a "dispute" is better than "proceedings". It heads off any potential confusion. This is a critically important Bill as far as we are concerned. We want to encourage people to use mediation as an alternative to court.
We do not want people thinking it has to go through the courts process. There are situations in which this could cause irrevocable damage, for example, a dispute between neighbours. If somebody starts litigation it is very hard to come back from that and go into a mediation process. We want people to know they can get to mediation before the issue goes to court and that they can have an early intervention to de-escalate things. In that sense, I think "dispute" is a better word. I know Deputy Wallace has "dispute" rather than my wording, which is "civil dispute". I am open to that argument.
I thank Deputy Daly. I invite the Minister to respond. He has amendments in this grouping also.
This group of eight amendments, namely, amendment No. 1 and amendments Nos. 3 to 9, inclusive, all relate to the scope of the Bill. I acknowledge the contribution of my predecessor, the Tánaiste, Deputy Fitzgerald, on this legislation. I hope we can advance matters today and set a date for future progress also.
Following publication of the Bill and Second Stage discussions, my Department received a number of submissions on scope-related issues. It was felt by some that section 3 was so structured as to create an impression that the Bill would apply only to civil proceedings and not to disputes which had not reached the stage of proceedings. That, of course, is not the intention. My Department has held discussions with the Office of the Attorney General, the Courts Service and mediation groups, including the Mediators' Institute of Ireland, in an effort to find a wording that would ensure the Bill’s provisions would apply to disputes in the civil law arena. I believe we can reach accommodation on the issues raised by Deputy Daly in her amendment.
In amendment No. 3, I propose to replace the definition of proceedings in section 2 in order to remove the reference to section 3 and to make it clear that "proceedings" means "civil proceedings which can be instituted before a court". Using that phrasing will resolve the issue raised by Deputy Daly. In amendment No. 5, I propose to delete section 3(1), which specified that the Bill applied to any civil proceedings. The title of the section will be changed to "Scope" instead of "Application". In amendment No. 8, I propose to delete the words "any of the following".
The net effect of these amendments is to make it clearer that the Bill will apply to disputes as well as civil proceedings. I am aware that amendments Nos. 1, 4, 6 and 7, tabled by Deputies Daly and Wallace, are designed to bring about the same effect. I hope, subject to the agreement of the committee and of the two Deputies, that the amendments I have tabled will address adequately the issues they have raised.
As regards amendment No. 9, the position is that following further discussions with the Office of the Attorney General, it was accepted that the exclusion of proceedings before a tribunal under the Tribunals of Inquiry (Evidence) Acts 1921 to 2011, a commission under the Commissions of Investigation Act 2004, or a committee under the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, as provided for in section 3(2)(f), does not arise and, in the circumstances, might be removed.
I apologise to Deputy Wallace. I should have invited him to speak as the proposer of amendment No. 6.
My amendment is much the same as Deputy Daly's and the Minister has more or less addressed it. I think we are all on the same wavelength. We do not have an issue with it.
We are trying to do the same thing. Does the Minister have any idea of what kind of disputes we envisage the amendment would exclude? Are there any?
I think it states that anything that is capable of a civil action at some stage could be the subject matter of mediation. The proceedings do not have to be prepared, served and issued.
We can probably go with amendment No. 3 for now.
Where stands amendment No. 1? Is Deputy Daly indicating that she will withdraw the amendment? She has the opportunity to table it again on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 6, line 21, after “means a” to insert “confidential”.
Confidentiality is a very important aspect of mediation and one of the main reasons for the success of the process. We note the Mediators' Institute of Ireland was concerned that if the confidential nature of mediation was to be in any way undermined, parties to a dispute would be less likely to use mediation as a process to resolve their dispute. It is probably necessary to include references to confidentiality in the definition of mediation and also to extend confidentiality to third party participants and oral communications. It has been recommended by the Mediators' Institute of Ireland, the Law Reform Commission and the Law Society that a reference to confidentiality be included in the statutory definition of mediation.
This is a must-have amendment for us. The bedrock of mediation is trust. That is going to be undermined if confidentiality cannot be guaranteed. Parties may not be willing to speak openly if there is a risk that some of the material could be used later in potential litigation. The whole purpose of mediation is to resolve disputes through an open forum.
The Mediators' Institute of Ireland points out that communications between parties made with the intent of settling judicial proceedings have traditionally been protected by the courts and by common law in terms of the "without prejudice" privilege. Statements contained in a document marked "without prejudice" or made verbally on that basis in a genuine attempt to settle a dispute cannot be used to undermine a person later on. This process is about trying to avoid litigation. If the parties are genuinely trying to resolve a dispute, they need that protection. It is there anyway in court proceedings. It is important to say that "without prejudice" privilege also has limitations. The party relying on it must show that the dispute existed at the time of the communication and that legal proceedings had commenced or the communication was in contemplation of litigation. It is not enough that the communication concerns a matter in dispute for the privilege to be upheld. There must an indication of settling the dispute in that sense.
There is a well-accepted value to confidentiality in the resolution of disputes and it has to be spelled out in these provisions if we are to woo people away from the courts into an alternative channel. The Law Society of Ireland, Law Reform Commission and the Mediators' Institute of Ireland all say this is fundamental and I think it has to go into the body of the Bill.
I support this amendment. It is very important that mediations remain confidential, not just between the mediator and parties involved but also to any individual who is brought into the mediation process as an expert or whatever. The whole process must be recognised as being confidential. We were going to table an amendment to this effect on Report Stage but since Deputies Daly and Wallace have proposed it now, we will be supporting their amendment.
I cannot resist acknowledging the rather unusual context of Deputies Wallace and Daly seeking to provide for privacy and confidentiality. My experience with both Deputies is otherwise.
I am happy to hear the submissions. Discussions on amendment No. 10 should have regard to later amendments, Nos. 28 and 31. I would draw the attention of Deputies to section 10, which sets out in some detail the confidential nature of the process of mediation. I do not believe it is strictly necessary to amend the definition in the manner suggested by Deputies Wallace and Daly, but in the spirit of compromise and with due deference to the submissions from Deputies Wallace and Daly, I am willing to accept the amendment. We will have to adjust the punctuation for the purposes of the readability of the definition, but I am happy to accept the amendment from Deputies Daly and Wallace.
Yes, in the names of Deputies Daly and Wallace and with the support of Deputy O'Callaghan as recorded. Would Deputy Daly and Deputy Wallace like to respond or are they okay?
It is beneath response, to be honest.
Amendment agreed to.
We are moving on to amendment No. 3, in the name of the Minister, already discussed with amendment No. 1. I ask members to note that if the question on amendment No. 3 is agreed, amendment No. 4 cannot be moved.
I move amendment No. 3:
In page 7, to delete lines 1 and 2 and substitute the following:
“ “proceedings” means civil proceedings that may be instituted before a court.”.
Amendment agreed to.
Amendment No. 4 cannot be moved.
Amendment No. 4 not moved.
Section 2, as amended, agreed to.
SECTION 3
The first amendment on section 3, amendment No. 5, was already discussed with amendment No. 1. It is in the name of the Minister. For members' notation, if amendment No. 5 is agreed, amendments Nos. 6 and 7 cannot be moved.
I move amendment No. 5:
In page 7, line 10, to delete “(1) Subject to subsections (2) and (3), this Act shall apply to any civil proceedings.”.
Amendment agreed to.
Amendments Nos. 6 and 7 not moved.
I move amendment No. 8:
In page 7, line 11, to delete “any of the following”.
Amendment agreed to.
I move amendment No. 9:
In page 7, to delete lines 31 to 37.
Amendment agreed to.
Section 3, as amended, agreed to.
Sections 4 and 5 agreed to.
SECTION 6
There is one amendment to section 6, amendment No. 10. It is standalone, in the name of Deputy Wallace. I call Deputy Wallace.
I move amendment No. 10:
In page 9, line 17, after “and (8)” to insert “and subject to the confidentiality of the mediation”.
I will pick up again on how the Law Society recommends that a mediator statement of general reasons for withdrawing must be subject also to confidentiality of mediation.
Is the Deputy happy? Would any other member like to contribute any comment? We are okay. I call the Minister.
The amendment covers ground that has already been referred to. I appreciate the point raised by Deputy Wallace, and indeed the intention behind the amendment, but I really do not see a pressing need for it. Having regard to section 10 already dealing in detail with the issue of confidentiality, the committee will also note that I have tabled amendment No. 29 for later on, which will further strengthen that section. It will also serve to clarify that all statements, including oral statements, in any form of mediation, must fully respect the concept of confidentiality. This will also cover any general explanation of the reasons of the mediator for withdrawing from a mediation. I accept what Deputy Wallace is saying. I do not take issue with him, but I believe it is unnecessary for the actual construct of the Bill. I ask him to accept that and not to press the amendment. In the context of his reflection, if we complete matters today, I am open to having this issue revisited on Report Stage. I do not see the necessity.
Does Deputy Wallace wish to make any further comment on amendment No. 10?
I would have thought that it made sense. I know it is not the end of the world, but I still think I should probably press it. I do not think it is unreasonable of me to press it, so I will.
Would any other member like to make any comment? I call Deputy Chambers.
If we accepted the previous amendment, does it not follow that we would try to reinforce the principle of confidentiality by putting additional amendments through that reinforce that aspect? I think it is important that it is put there and that it is necessary.
Taking from what the Minister said and acknowledging what Deputy Wallace is attempting to do, I think we need to be careful that we are not just putting things into it literally for the sake of putting a belt and braces on something that is not necessary if it has been done in other parts of the Bill, particularly with the option that it can be done later if there is still reservation or worry on the part of the Deputy that he is not happy with it when things finish today. I do not see why the Deputy would necessarily be looking to do this now rather than taking the option of that hold-back.
In response to Deputy Wallace, when he says that it makes sense, I do not take the view that it does not make sense. I merely take the view that a strict reading of section 10 will cover all aspects of confidentiality in a way that I believe to be absolutely sufficient. In the circumstances, I see the amendment as being less than necessary.
Does Deputy Wallace wish to make any further comment?
No, I am fine. We have discussed it already, but I will press the amendment.
The question is that the amendment be made.
I do not wish to divide the committee. I do not see it as necessary. I can live with it and accept it.
Okay. That means that I can pause from proceeding with putting the amendment to the members. The Minister is accepting it, and therefore I am going to put the amendment as tabled to the meeting.
When I said that I am not going to divide the committee, I meant that I am not going to be responsible for the committee dividing.
I hope it will always be the Minister's experience with the committee that we have proven to be a very cohesive number, and I want to pay tribute to all who have been here over this past period.
Entirely in that spirit, I reluctantly accept the amendment.
We have already noted that, Minister.
We could become friends yet.
We will talk about Christmas card lists later. It might be of little or no comfort to Deputy Wallace that I do not think I am on the Minister's Christmas card list either, but there we are.
Amendment agreed to.
Section 6, as amended, agreed to.
SECTION 7
I move amendment No. 11:
In page 10, line 1, to delete “terminated.” and substitute the following:
“terminated;”.
“(g) such other terms (if any) as may be agreed between the parties and the mediator.”.
Section 7 concerns the agreement to mediate to be signed by the parties and the mediator. I have tabled this amendment following a submission from the Law Society. The society indicated that an additional provision was needed in order to ensure that the parties and the mediator could agree to the inclusion of further terms for the conduct of the mediation. Amendment No. 11 will allow the parties and the mediator to include further terms in the agreement to mediate. I acknowledge the submission of the Law Society, thank it for drawing this matter to my attention and ask the committee to agree to the amendment.
Amendment agreed to.
Section 7, as amended, agreed to.
SECTION 8
This is a substantial grouping of 16 amendments in total, amendments Nos. 12 to 27, inclusive. For the information of members, if the question on amendment No. 12 is agreed, amendments Nos. 13 and 14 cannot be moved. I invite Deputy Wallace to address amendment No. 12.
I move amendment No. 12:
In page 10, lines 14 and 15, to delete “a copy of any code of practice to which he or she subscribes in so far as mediation is concerned” and substitute the following:
“a copy of the Code of Practice to which he or she subscribes in so far as the mediation is concerned. The subscribed Code of Practice shall incorporate, in full, the terms of the Code of Practice published by the Minister under section 9 of this Act. The mediator may incorporate additional terms; however, any such terms shall not conflict with the terms of the Code of Practice as published under section 9”.
The amendment is recommended by the Mediators Institute of Ireland. It would argue that the Bill, as it is, fails to deal with the regulation of mediators. Without regulation, anyone can claim to be a mediator, and the mediators to whom the courts refer people should be regulated. The change will help give people a qualified mediator who subscribes to a specific, not just any, code of practice. As the Bill stands, the mediator could subscribe to any code of practice he or she devises. Without such an amendment, there would be no standardisation and the code of practice would be non-binding on mediators. The Mediators Institute of Ireland and the Law Society have expressed concerns about this.
Just as the Minister does not want to be responsible for dividing the committee, I do not want to be responsible for dividing Deputies Wallace and Daly, but I prefer Deputy Daly's amendment No. 14 to Deputy Wallace's amendment No. 12. Amendment No. 14 contains everything within amendment No. 12 but states it more succinctly and there is less prospect in it of any statutory ambiguity.
This is a large grouping of amendments, so I will deal with amendments Nos. 13 and 14 first-----
That is fine.
-----and then deal with the others. As it is a large grouping, I ask the Chairman to give me-----
Yes. I remind members that there are 16 amendments in this grouping. I will open up the floor again to each member.
There is a large bunch of amendments in the grouping so I will seek to micromanage them, but they all deal with the mediators' code of practice.
As Deputy O'Callaghan said, my amendment No. 14 is a slightly different version of Deputy Wallace's amendment No. 12. At present, section 8 holds that "the mediator shall, prior to the commencement of the mediation ... furnish to the parties a copy of any code of practice to which he or she subscribes". Therefore, it is proposed that mediators be able basically to write something on the back of a napkin as long as they say it is their code of practice. My first amendment seeks to place an obligation on the mediators to subscribe to a single code of practice, changing "any" to "the".
My second amendment is linked with this in that it provides that all mediators' codes of practice "shall incorporate in full ... the code of practice prepared and published [by the Minister] under section 9". During Second Stage debate on the Bill, even Government backbenchers made the point that there is no point in the Minister publishing a code of practice for the conduct of mediators only for mediators not to be obliged to follow it. It does not make any sense. In this sense, section 9 is undermined by section 8 in that mediators do not have to sign up to the code of practice and, therefore, all of the good aspirations in section 9(2) about ethical standards being observed and continuing professional development can basically be junked by a mediator who is empowered to design his or her own code if he or she so wishes. Given that we were discussing in the House last week the regulation of other professional bodies, we need regulation here, and the mediators themselves want it.
I note that the Law Society said it was very disappointed that proportionate and appropriate regulation of mediators has not been given a statutory basis in this Bill. Any amendments to do so would probably be outside the scope of the Bill at this stage. It is particularly against this backdrop that I urge the Minister to accept these amendments. My amendment No. 23 is an effort to plug the gap in this regard pending full statutory regulation. These amendments, if accepted, would at least require mediators to sign up to a code of practice with certain crucial provisions set by the Minister and would require that the code of practice also incorporate training requirements for mediators, a provision that is absent from the Bill at present. Without this, I believe we are heading into very dangerous territory. It leaves people seriously exposed to ending up potentially in the hands of rogue operators to be exploited, which we absolutely do not want. This is important and, as I said, even Government backbenchers made this point during the Second Stage debate. Amendment No. 15 is linked into this in that it places an obligation on the Minister to prepare and publish or cause to be prepared or published a code of practice for mediators. At present, it is only an option for the Minister, which is not good enough. It should be a requirement.
Amendments Nos. 20, 22, 23 and 25 are another little grouping within this grouping and, again, they seek to tighten things up regarding the code of practice. At present, the code of practice the Minister may draw up may include provisions concerning continuing professional development, ethical standards to be observed, the determination of costs and fees and so on. What we seek to do with this amendment is to place an obligation on the Minister to include all of these provisions, but not just these provisions. It can go broader than them. The amendment does not limit the Minister to these provisions but it does oblige him to deal with them.
Amendment No. 23 obliges the Minister to include education and training requirements for mediators in this regard as well. This grouping, obliging the Minister to put certain things into the code of practice, is very reasonable and I believe it is supported by the profession itself. Against the backdrop of our trying to professionalise many of these standards, the grouping is more than welcome. In deference to amendment No. 23, my amendment No. 25 then seeks to remove the item in the list of things to be included in the code of practice regarding procedures to be followed by mediators in the conduct of mediation. I am seeking to remove this on the assumption that amendment No. 23 will be accepted. We would be tying the hands of mediators too much if we were to keep that line in the context of the other provisions I mentioned. We do not want to micromanage what mediators do in primary legislation, and that is not the intention of these amendments, but the option is always there for the Minister to include recommended procedures to be followed. However, requiring mediators to sign up to procedures that must be followed in primary legislation is too much. That can be dealt with by statutory regulation. The aim is to try to overcome some of the shortcomings in the mediators' code of practice.
Five of the 16 amendments are in the Minister's name, namely, amendments Nos. 16 to 19, inclusive, and No. 26. I invite him to address the grouping.
This group of amendments deals with the issue of a code of practice for mediators under section 9 of the Bill. As regards section 8, I am unable to accept amendment No. 12 in the name of Deputy Wallace and amendments Nos. 13 and 14 in the name of Deputy Daly. Amendment No. 12 proposes to amend section 8(1)(c) in a manner which would require a mediator to furnish the client with a code of practice which would not only incorporate a code of practice published under section 9 but could also incorporate additional unspecified terms. While the amendment provides that any such additional terms should not conflict with the content of the code of practice under section 9 it is difficult to see how this could operate in an effective manner in practice. It would present practical difficulties and so I am unable to support it.
Amendments Nos. 13 and 14 also seek to amend section 8(1)(c) by substitution of the word "any" with "the", but that implies that there can be only one code of practice for mediators. That might present a difficulty. There may be more than one code of practice for mediators depending, perhaps, on the subject matter of a dispute which might be going to mediation. For example, amendments Nos. 16 to 19, inclusive, to section 9 while mainly technical in nature contain a proposal for the development of a code of practice dealing with the involvement of children in mediation. I see a potential conflict in what is proposed by Deputy Daly, although I do not believe it is intended. To amend section 8(1)(c) in the manner proposed would not have the effect sought by Deputy Daly and it could, in fact, be unduly problematic.
Amendment No. 14 also seeks to require a mediator to furnish to a client a code of practice which would incorporate a code of practice published under section. I am unable to accept this amendment for the reasons already outlined in regard to Deputy Wallace's amendment.
Amendments Nos. 16 to 19, inclusive, are technical in nature. They relate to the possibility of there being more than one code of practice for mediators. This must be acknowledged.
Amendment No. 26 proposes the insertion of a new provision allowing a code of practice to contain details of procedures to be followed by mediators in the conduct of a mediation involving consultation by a mediator with a child. This amendment follows on from a recommendation from the Law Reform Commission in its report on mediation and conciliation regarding the voice of the child. The commission recommended that where a mediator considers it appropriate to involve a child directly in a mediation, the mediator must obtain the consent of the child and must provide adequate facilities for that specific and special purpose. My Department has discussed the manner in which this recommendation could be progressed with the Legal Aid Board and the Mediators’ Institute of Ireland and the consensus reached was that the best way to achieve the objective is to ensure that the voice of the child is included in a code of practice made under the Act.
The intention behind amendment No. 15 in the name of Deputy Daly is, I believe, to make it mandatory for the Minister to prepare and publish a code of practice for mediators. I cannot accept this amendment as it ignores the possibility, specifically provided for in section 9(1)(b), that the Minister may approve a code of practice prepared by a person other than the Minister which purports to set standards for the conduct of mediators. I believe that possibility must be preserved.
In regard to amendments Nos. 20 to 22, inclusive, the intention appears to be to ensure that a code of practice must include all the matters outlined at paragraphs (a) to (f) in subsection (2). However, as I have already indicated, there is likely to be more than one code of practice and it would not be appropriate to impose such a restriction. It is quite likely there will be more than one code of practice and these amendments do not allow for that possibility.
Amendments Nos. 23 and 24 seek to insert into a code of practice provisions regarding education and training for mediators. I do not believe that a code of practice for mediators is the correct place to deal with training and education standards and I note that codes of practice for mediators in other jurisdictions do not include provisions for education and training. I am not saying that education and training provisions are in any way at variance with the role and function of mediators but I do not believe that putting that in a code of practice is appropriate.
I cannot accept amendment No. 25 from Deputy Daly which would have the effect of removing procedures to be followed by mediators in the conduct of mediation from the scope of a code of practice. I acknowledge what the Deputy had to say about this being dependent on other amendments. Amendment No. 25 as it stands, to my mind, would run completely counter to what a code of practice should do and, therefore, I cannot accept it.
I would ask Deputies to consider what I have said and to reflect on the Bill in its entirety with the Committee Stage amendments following which we can look at what might be done on Report Stage. In regard to all of the amendments tabled by Deputies Wallace and Daly I see potential difficulties, many of which are perhaps unintended but would nevertheless cause difficulties in practice. I do not believe anyone is keen to have a Bill that might be regarded as anything less than certainty.
I accept the point regarding amendment No. 12 and I bow to the cleaner version set out in amendment No. 14 in the name of Deputy Daly. I will therefore withdraw amendment No. 12. Amendments Nos. 21, 22, 24 and 27 are also in my name and they also pretty much overlap with what is provided for in Deputy Daly's amendments.
Amendment No. 21 seeks the substitution of the word "may" with "shall" in an effort to make the Bill more specific. The points listed for inclusion in the code of practice are good but there is too much scope to avoid what should be fundamental requirements for a code of practice. The change from "may" to "shall" is a change from optional to a mandatory provisions for the code of practice. I am of the view that these provisions should be mandatory.
On amendment No. 24, there should be a minimum requirement in terms of education and training for a person to be a mediator otherwise a situation is created whereby mediators who have completed a short course can be placed on the same level as already professionally qualified mediators with hundreds of hours of training. That might not be such a good idea. The Bill as it stands will allow those who undertake significant ongoing education to be equated with those who do not refresh and update their mediation skills and education. This should be avoided. There are people who go the extra mile to be better at their job.
There should be clarity and recognition that they are putting in the effort and trying to advance their ability in order to deal with complex situations. Therefore, I believe it is important.
I believe this is very important. What we are trying to do with this Bill is facilitate a major transfer away from the court process of dispute resolution. It could potentially be a really important thing for citizens, but it has to be done right. Done right it would be brilliant, but done wrong it could cause a huge amount of damage. The Bill is full of aspirations about a code of practice but there is no meat behind it. There is nothing to require that to be drawn up and there is nothing to require the mediator to sign up to it. As the Bill is currently constructed, somebody could go and do an online diploma course, put "association of professional mediators" or whatever beside his or her name, hand over the code of practice and then be on exactly the same level playing field as somebody who has been highly trained, who has upskilled and who has done it all. That is just too dangerous. We have seen too many rogue operators at there. I appreciate that my staff are obviously more clinical than the staff in Deputy Wallace's office in terms of drafting the amendment. Our amendments Nos. 13 and 14-----
None of the rest of us would go there.
I am only saying it in the hope that they are listening. With regard to our amendments Nos. 13 and 14, we are talking about certain minimum standards. The Minister said that there would be different codes of practice and all that. That may absolutely be the case. However, what we are saying is that for somebody to have the label of mediator, they must require certain minimum standards. What is the point in talking about a code of practice if people do not have to adhere to it? Not only that, but the Minister may do some of these things. We might have confidence that this Minister will do them, but there is no requirement on a Minister to bring about some of these things. Again, I say that in the context of the likes of the Law Society stating that the regulation of what will be a new, important and growing profession of mediators should be dealt with on a statutory basis. It cannot be done fully by the legislation as it stands. Our amendments are just trying to plug the gap pending the statutory regulation of it. It is not about micromanaging and it is not about dotting every "i" and all that sort of stuff. It is about certain minimum standards that mediators must adhere to in order to give themselves that title. I believe it is vital.
One of the main issues is whether there should be a code of practice or a variety of codes of practice. My preference would be for the former. If we start going down the road of mediators having a series of codes of practice, we would end up like boxing associations with different organisations having different codes of practice and people being able to say that they are regulated by the Malahide mediators business or the Rathmines mediators association.
The preference should be to have one code of practice. The Minister said that there is an advantage to having more than one code because, for instance, he may want to develop a code of practice for mediations that involve children. I do not see why we cannot have just one code of practice and, within that, we would have a section that would deal with mediations that involve children. Section 9 refers to there being a code of practice. As Deputies, we have a code of conduct. We do not have a different code of conduct for different parties or anything like that. I believe we should be seeking to harmonise this in one code of practice for mediators.
With regard to the other amendments about education and training, as I said, we intend to table an amendment to section 9 on Report Stage in respect of the requirement that mediators should have to have a minimum standard of education or training. I believe that should be put in the Bill. Otherwise, it will just be open season. It is not like any other profession in which one has to achieve certain qualifications in order to become qualified to practise. As Deputy Daly said, under the Bill as it stands anyone can just call themselves a mediator and off they go. We need to be able to protect them.
In terms of the code of practice, in court there are the rules of court. If we want to make mediation a success, which we all want to do, we should have just one code of practice for mediators. It should be there and everyone should know what is in it so that there is no ambiguity.
I note that Deputy Wallace has indicated his intention to withdraw amendment No. 12 and I welcome that.
I merely wish to make the point that should section 9(1) be changed to impose a duty on the Minister by inserting "shall" rather than "may", it would exclude the likely probability of there being more than one code of practice. I listened to the point raised by Deputy O'Callaghan, but the fact of the matter is that there are different practices and codes that are required for different areas of practice. I mentioned just one, which was the matter of children in mediation. I believe that unduly restricting the Minister in section 9(1) excludes that possibility, which is more than a possibility - it is a likelihood.
I want to make the point again regarding the education and training, which has been mentioned, as well as the qualifications. I draw the attention of members again to the role of the mediator under section 8(1), with specific reference to 8(1)(b) and 8(1)(c), by which the mediator would be required prior to the commencement of the mediation to
(b) furnish to the parties the following details of the mediator that are relevant to mediation in general or that particular mediation:
(i) qualifications;
(ii) training and experience;
(iii) continuing professional development training,
and
(c) furnish to the parties a copy of any code of practice to which he or she subscribes in so far as mediation is concerned.
That deals with the matter of qualifications and training and with the issue of experience and expertise and, therefore, I believe it caters for the points being raised by the Deputies in a number of the amendments.
With regard to education and training, I accept the point raised by Deputy Wallace. However, it is probably premature in this Bill and therefore inappropriate to deal with it at this stage. The minimum requirements of the Mediation Council of Ireland, about which there is some reference in the Bill, would deal with that. This would be an issue for the council. I refer to the Schedule of the Bill, which will impose a duty and obligation on the council to maintain and develop standards in the provision of mediation, including a system of training, education, professional development and the acquisition of expertise. I am not against the point Deputy Wallace is making, but I do not think it is appropriate in this part of the Bill and I do not think it is appropriate for this Bill. Rather, it is a matter for the Mediation Council. As the Deputy knows, the council will be of consequence in terms of the evolving nature of mediation and the law. I ask the Deputy to accept our bona fides in this regard.
I have a very brief point in response to the Minister's point that section 8 requires the mediator at the start of the process to furnish the party with a list of his or her qualifications and training. The point is that, in the absence of a standardised code of practice, how do I know whether somebody with a diploma from the advanced royal mediation institute is highly trained or bought the diploma online? If we do not define a code of practice ourselves, it will put too much of the onus on the citizen to have to do the digging and find out the standards. That is why I believe it is important to go ahead as recommended in the amendments.
Are there any other contributions before we proceed to address these amendments?
In response to the point Deputy Daly made in respect of any code of practice and the relationship between section 8(1)(c) and the obligation on the mediator to furnish to the parties any code of practice he or she has, I believe that should be read in the context of section 9(1). I ask the Deputy to let me deal with that specific issue on Report Stage and not to press that particular amendment now. I will consider what she has said to see whether we can address the point she has made without incorporating the amendment before us, which, for reasons I have already given, conflicts with the current section 9 on the matter of there being more than one code of practice.
We must accept that reality.
We do not want to be obstructive. Can we get agreement on what we are trying to do? I feel strongly about the points we are making. Perhaps to be magnanimous, we will return to this. I feel strongly about the notion of one code of practice, which is key, but if the Minister will examine this, we will deal with it on Report Stage.
I very much accept that. I acknowledge the Deputy's right to come back to this on Report Stage but I am unable to accept the amendment having regard to section 9. I ask her to leave it with me. I will see what I can do between now and Report Stage.
Is that okay?
We feel strongly about this but we will let this go until Report Stage.
There is wider supportive opinion regarding what the Deputies are pressing. I thank the members for their accommodation in terms of allowing the business to proceed. I will deal with all 16 amendments and the opportunity will be available for any member to retable them on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 13:
In page 10, line 14, to delete "any" and substitute "the".
Amendment, by leave, withdrawn.
I move amendment No. 14:
In page 10, line 15, after "concerned" to insert the following:
"; which code of practice shall incorporate in full the terms of the code of practice prepared and published under section 9".
Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9
I move amendment No. 15:
In page 10, line 33, to delete "may" and substitute "shall".
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 10, line 34, to delete "a code" and substitute "codes".
I will withdraw the amendment on the basis that I will examine the issue. This relates to the possibility of there being more than one code of practice.
The points are duly noted and I appreciate that.
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 10, line 36, to delete "a code" and substitute "codes".
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 10, line 36, to delete "a person" and substitute "persons".
Amendment, by leave, withdrawn.
I move amendment No. 19:
In page 10, line 37, to delete "purports" and substitute "purport".
Amendment, by leave, withdrawn.
I move amendment No. 20:
In page 11, line 1, to delete "may include" and substitute "shall include but is not limited to".
Amendment, by leave, withdrawn.
I move amendment No. 21:
In page 11, line 1, to delete "may" and substitute "shall".
Amendment, by leave, withdrawn.
I move amendment No. 22:
In page 11, line 2, to delete "any of".
Amendment, by leave, withdrawn.
I move amendment No. 23:
In page 11, between lines 2 and 3, to insert the following:
"(a) education and training requirements for mediators;".
Amendment, by leave, withdrawn.
I move amendment No. 24:
In page 11, between lines 2 and 3, to insert the following:
"(a) minimum standards of education and training for mediators;".
Amendment, by leave, withdrawn.
I move amendment No. 25:
In page 11, to delete line 4.
Amendment, by leave, withdrawn.
I move amendment No. 26:
In page 11, between lines 4 and 5, to insert the following:
"(c) procedures to be followed by mediators in the conduct of a mediation requiring consultation, by a mediator, with a child;".
We can proceed with this amendment. I am not sure if the Deputies have a difficulty with it, having regard to our previous discussion.
Amendment agreed to.
I move amendment No. 27:
In page 11, between lines 9 and 10, to insert the following:
"(g) a clear definition of misconduct.".
Amendment, by leave, withdrawn.
Section 9, as amended, agreed to.
SECTION 10
Amendments Nos. 28 to 31, inclusive, are related and will be taken together. If amendment No. 28 is agreed, amendment No. 29 cannot be moved.
I move amendment No. 28:
In page 12, lines 8 and 9, to delete "communications by the mediator with the parties" and substitute the following:
"communications, whether oral or written, between the mediator and the parties and the non-parties attending the mediation under section 6(4)(b)".
The Minister and I are probably trying to do the same thing. His amendment is probably better than mine. It relates to the issue of confidentiality provisions. We are trying to make sure it is clear that this covers all communications, oral or written, and not just written communications. The Minister has provided for this in his amendment. Will he confirm that non-parties, that is, people who are permitted under the legislation to attend in a support role such as a legal person or a trade union representative, will be protected under this provision as well?
I acknowledge what the Deputy has said in this regard. The section imposes a general confidentiality obligation on the mediator and parties to a mediation. Following a review of the section, it has become clear that it does not go far enough in ensuring the confidentiality of the mediation process. For this reason, amendment No. 29 proposes deletion of the words "by the mediator with the parties" and the insertion of the words "oral statements". Deputies will accept the fact that this will broaden the confidentiality obligation to all communications made in the context of the mediation, including any oral statement that might be made by a participant.
Deputy Daly’s amendment seeks to achieve the same end but, given the fact my amendment is similar, I hope she will feel she is in a position not to press her amendment.
I am open to that but I am not clear on whether non-parties are protected. I accept fully that the Minister's amendment will cover oral communications, which is one element of what I was trying to address.
It covers all parties.
The legislation provides for somebody to partake in the process in a support role. It could be a legal person, trade union representative or community representative. He or she is not a party to the mediation but is present in a support or observer role. Are these people covered by the confidentiality provisions? They are non-parties.
Section 10(1) covers all records and notes relating to the mediation and there should be no disclosure in any proceedings either before the court or otherwise. We cannot improve on that. The subsection speaks for itself and it covers everything.
If there is residual doubt, the matter can be revisited.
I will accept the Minister's amendment but I am a little unsure on the non-party issue. It is a peculiar scenario, which will not arise frequently-----
But it could.
It could and I am not sure we are absolutely clear. I will withdraw my amendment for now. I am glad oral communications are covered.
Will the Minister note the Deputy's concerns in that regard if there is a need having examined it again to strengthen it?
Of course, yes.
I have tabled two further amendments to the section. The first corrects a drafting error in section 10(3) by substituting the word "admissible" for "inadmissible". This makes it clear that evidence introduced in mediation that is otherwise admissible or subject to discovery in proceedings shall not become inadmissible solely because it was introduced or used in mediation.
Amendment No. 31 deletes the word "civil" in section 10(3). It is no longer needed here following the amendment of the definition of "proceedings" in section 2.
That is fine. In the absence of any further contributions, I am going to proceed to deal with the amendments. Where stands amendment No. 28 Deputy Daly?
I withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 29:
In page 12, lines 8 and 9, to delete “by the mediator with the parties” and substitute “(including oral statements)”.
Amendment agreed to.
I move amendment No. 30:
In page 12, line 24, to delete “otherwise inadmissible” and substitute “otherwise admissible”.
Amendment agreed to.
I move amendment No. 31:
In page 12, line 25, to delete “civil”.
Amendment agreed to.
Section 10, as amended, agreed to.
Sections 11 to 13, inclusive, agreed to.
SECTION 14
Amendments No. 32 and 39 to 41, inclusive, are all related and will be taken together.
I move amendment No. 32:
In page 15, between lines 19 and 20, to insert the following:
“(4) This section shall not apply to any proceedings, including any application, under—
(a) section 6A, 11 or 11B of the Guardianship of Infants Act 1964,
(b) section 2 of the Judicial Separation and Family Law Act 1989, or
(c) section 5 of the Family Law (Divorce) Act 1996.”
As Deputies will be aware, section 14 is a key provision that requires practising solicitors shall advise clients to consider mediation as an alternative to court proceedings. For this purpose, they must provide clients with information on mediation services, including details of mediators, information about the advantages and benefits of mediation, information on the confidentiality obligations, as discussed earlier, and the enforceability of mediation settlements. Where mediation is declined or fails and court proceedings are instituted on behalf of a client, the application must be accompanied by a statutory declaration made by the solicitor confirming that these obligations have been discharged in relation to the client and the proceedings to which the declaration relates.
In submissions to my Department, the Law Society has raised the possibility of confusion and duplication of effort in cases arising under the Guardianship of Infants Act 1964, the Judicial Separation and Family Law Act 1989 and the Family Law (Divorce) Act 1996. The society points out that the requirements of this Bill in relation to the making of a statutory declaration would appear to be in addition to the existing requirements with respect to the signing of a certificate under those Acts. I accept that there is a possibility of duplication of requirements in these cases and I am tabling amendment No. 32 which disapplies section 14 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.
We need consistency and coherence between the provisions of this Bill and the requirements on solicitors under the Acts of 1964, 1989 and 1996. For this reason, amendments Nos. 39 to 41, inclusive, will, respectively, amend sections 20 and 21 of the 1964 Act, sections 5 and 6 of the 1989 Act and sections 6 and 7 of the 1996 Act in order to require a solicitor to make a statutory declaration rather than merely sign a certificate to the effect that the requirements under these Acts have been discharged.
In addition, I consider that the information regarding mediation provided by a solicitor to an applicant under these Acts should mirror the obligations placed on a solicitor under this legislation. For this reason, the proposed amendments require a solicitor to provide to an applicant under those Acts the names and addresses of persons qualified to provide an appropriate mediation service and to inform his or her client of the matters referred to in sections 10 and 11 of this Bill.
Two further amendments concern section 29 of the 1964 Act and section 43 of the 1996 Act. Both relate to the costs of mediation or counselling services. Since the Bill we are now discussing contains specific provision for costs of mediation, these sections should be amended to delete reference to mediation services. I ask Deputies to accept the amendments as tabled.
I accept what the Minister said. I got a communication late last night from the Law Society on an issue in relation to the domestic violence legislation that sounds quite similar. I have not yet had a chance to look at it, so I have no idea whether it is a similar provision. I am just flagging it now for Report Stage as it may be my only opportunity.
I would be happy to have a look at that. I take the point that it could well be appropriate.
Amendment agreed to.
Section 14, as amended, agreed to.
Sections 15 and 16 agreed to
SECTION 17
Amendments Nos. 33 to 38, inclusive, are related and will be discussed together.
I move amendment No. 33:
In page 16, line 29, after "court a" to insert "written".
My amendment No. 35 reads:
In page 16, to delete lines 33 to 37, and in page 17, to delete lines 1 to 5 and substitute the following:
“(b) where the mediation took place, the content of a report to the court, if any, by a mediator shall be limited to a neutral summary of the outcome of the mediation.”
We have tossed around the importance of confidentiality. The requirement in the Bill to produce a report which outlines any issues raised, or for the mediator to give an opinion on the engagement of the parties, would breach this confidentiality. This section is of great concern to the Mediators' Institute of Ireland and the Law Society, and was highlighted in the 2010 report of the Law Reform Commission. In that report, the Law Reform Commission concluded that mediators' reports, if any, should be narrowly restricted and might have some role in assisting a court in determining a successful litigant's cost application after litigation, subsequent to an inconclusive mediation but not otherwise. In paragraph 4.125 of the report, the commission concluded that:
[T]he Commission considers that the content of mediators' or conciliators' reports to the Court should be narrowly restricted. Confidentiality during a mediation session is essential to protect the integrity of the process. For the mediation or conciliation to be effective, a mediator or conciliator must have the trust of all participants, both in joint sessions and in private caucuses. Requiring mediators or conciliators to report on the conduct of the parties to the Court imperils the confidentiality of the process.
This is an important group of amendments for us. As Deputy Wallace said, the Law Reform Commission, the Law Society and the Mediators' Institute of Ireland are all keen that there would be some changes here, in particular with regard to the obligation in this section that mediators provide in their report to the court a statement of their opinion as to whether or not the parties fully engaged. This is way too subjective. Only a brief report needs to be presented as to whether or not meditation took place and whether a settlement was reached and, if so, what the terms of that settlement were.
It is important we include in the Bill the requirement that the report be a written one. That comes under amendment No. 33. Otherwise, we run the risk of much of the mediator's time being spent on court appearances and so on. A written report to the court, however, should be sufficient. It should be a neutral summary of the facts. It is important to include something because in awarding costs the courts can take into account any unreasonable refusal or failure of a party to consider or engage properly in mediation. I agree with Deputy Wallace's point that the mediator's report should one of advice and for the court decide whether it was unreasonable or not.
A normal statement should be a written statement to the court to be rubber stamped. That is an important point.
It should be a written report and the wording of section 17 implies it would be a written report, so I do not see any harm in stating it will be a written report. Otherwise, one will not get the detail that is set out in the rest of section 17(1).
A further point concerns section 17(1)(b)(iv), which states: "if no mediation settlement has been reached, a statement as to whether, in the mediator’s opinion, the parties engaged fully in the mediation" will be made. I believe that will change the character of the mediation and it also changes the character of the mediator. If that is put in place, the mediator will become an individual who can punish one or other of the parties to a mediation, which I believe undermines the voluntary nature of mediation. One will find situations where mediators in a report to the courts say one side did not fully engage, and as a result there could be costs consequences against that side in court. There may also be consequences for the mediator in that the parties may say this was unfair and that they did fully engage, and there may be a dispute in which a mediator is sued. This makes it difficult and makes it potentially adversarial, which is what we do not want in mediation. This needs to be looked at again by the Minister.
This group of amendments relates to the mediator’s report to the court under section 17. It provides that where the parties decide to engage in mediation following an invitation by the court, and they subsequently apply to the court to re-enter the proceedings, the mediator will prepare and submit a report to the court outlining the outcome of the mediation. I take the point with regard to having the report in writing.
Following publication of the Bill, a number of submissions to my Department queried whether the mediator’s report should refer to unresolved matters as currently required by section 17(1)(b)(iii). I have accepted that it should not be necessary to refer to such “unresolved” issues and that is the purpose of amendments Nos. 36 and 38.
As regards amendments Nos. 33 and 34 tabled by Deputy Daly, I am not disposed to accept them as of now but I take the point she makes. Subsection (1) requires the mediator to prepare and submit a report to the court and this already implies that the report must be written. Moreover, inserting the words “short and neutral” in regard to such a report, as proposed in amendment No. 34, is unnecessary since paragraphs (a) and (b) already indicate the content of such a report.
As regards amendments Nos. 35 and 37, tabled by Deputies Wallace and Daly respectively, I am willing to give this issue further consideration because I do not believe there is much between us. The key issue here is the requirement in subsection (1)(b)(iv) that if no mediation settlement has been reached, the mediator’s report should contain a statement as to whether the parties engaged fully in the mediation or not. I recognise that this provision raises sensitive issues for mediators. Deputies will be aware that a broadly similar provision is already to be found in section 28 of the Multi-Unit Developments Act 2011, which requires the chairperson of a mediation conference to include in his or her report to the court a statement as to whether the failure of mediation is substantially due to the conduct of one or more of the parties, and in that case specifying the identity of such party or parties.
I would ask Members to acknowledge the sensitivities here. I am willing to give the matter further consideration. I acknowledge the importance of the points raised in terms of facilitating further discussion and in assisting me to come back on Report Stage with a form of wording that should meet the concerns of Deputies as indicated in amendments Nos. 35 and 37. I would hope to come back with something if Members are minded to leave matters over until Report Stage.
I think amendment No. 33 is reasonable. If we are saying it is implied that a report should be written, we should spell it out. I do not think there is any harm in that. It is not wordy or cumbersome and will not undermine the Bill. I would like to press those amendments. I accept the point on amendment No. 34 and am happy to withdraw that.
In terms of the bigger picture, it is a key area for mediators and we have to come up with something better on this. Deputy O'Callaghan summarised the points very well in that it could undermine the whole process if we do not get the wording right. Whether we press it now or deal with it on Report Stage, I do not mind.
I will let amendment No. 35 go to Report Stage to see if we can come up with a better arrangement.
Thank you. The Minister will note the spirit of members, who put in substantial work in advance of Committee Stage today. I thank them for that. Has the Minister any further comment to make?
I acknowledge what Deputies have said. We will work towards reaching accommodation, having regard to today's discussion.
Amendment agreed to.
Amendment No. 34 not moved.
Amendment No. 35 not moved.
I move amendment No. 36:
In page 16, to delete lines 36 and 37, and in page 17, to delete lines 1 to 3 and substitute the following:
“(ii) if a mediation settlement has been reached on all, or some only of the, matters concerning that dispute, a statement of the terms of the mediation settlement, and”.
Amendment agreed to.
Amendment No. 37 not moved.
Section 17, as amended, agreed to.
Sections 18 and 19 agreed to.
SECTION 20
I move amendment No. 38:
In page 18, to delete lines 6 and 7.
Amendment agreed to.
Section 20, as amended, agreed to.
Sections 21 to 23, inclusive, agreed to.
NEW SECTIONS
I move amendment No. 39:
In page 20, after line 5, to insert the following:
“PART 6
AMENDMENT OF OTHER ACTS
Amendment of Guardianship of Infants Act 1964
24. The Guardianship of Infants Act 1964 is amended—
(a) in section 20—
(i) in subsection (2)(b), by the substitution of “give to the applicant the names and addresses of persons who provide a mediation service and inform the applicant of the matters referred to in sections 10 and 11 of the Mediation Act 2017” for “and give to the applicant the name and addresses of persons qualified to provide an appropriate mediation service”,
(ii) in subsection (3)(a), by the substitution of “statutory declaration made by the solicitor” for “certificate signed by the solicitor”, and
(iii) in subsections (3)(b) and (4), by the substitution of “statutory declaration” for “certificate” in each place,
(b) in section 21—
(i) in subsection (2)(b), by the substitution of “, give to the respondent the names and addresses of persons who provide a mediation service and inform the respondent of the matters referred to in sections 10 and 11 of the Mediation Act 2017” for “and where appropriate give to the respondent the name and addresses of persons qualified to provide an appropriate mediation service”,
(ii) in subsection (3)(a), by the substitution of “statutory declaration made by the solicitor” for “certificate signed by the solicitor”, and (iii) in subsections (3)(b) and (4), by the substitution of “statutory declaration” for “certificate” in each place,
and
(c) in section 29, by the deletion of “mediation or”.”.
Amendment agreed to.
I move amendment No. 40:
In page 20, after line 5, to insert the following:
“ Amendment of Judicial Separation and Family Law Act 1989
25. The Judicial Separation and Family Law Act 1989 is amended:
(a) in section 5 -
(i) in subsection (1)(b), by the substitution of “, give to the applicant the names and addresses of persons who provide a mediation service and inform the applicant of the matters referred to in sections 10 and 11 of the Mediation Act 2017” for “and give to him the names and addresses of persons and organisations qualified to provide a mediation service”,
(ii) in subsection (2), by -
(I) the substitution of “statutory declaration made by the solicitor” for “certificate signed by the solicitor”, and
(II) the substitution of “not so declare,” for “not so certify,”,
and
(iii) by the deletion of subsection (3),
and
(b) in section 6 -
(i) in subsection (1)(b), by the substitution of “, give to the respondent the names and addresses of persons who provide a mediation service and inform the respondent of the matters referred to in sections 10 and 11 of the Mediation Act 2017” for “and give to him the names and addresses of persons and organisations qualified to provide a mediation service”,
(ii) in subsection (2), by -
(I) the substitution of “statutory declaration made by the solicitor” for “certificate signed by the solicitor”, and
(II) the substitution of “not so declare,” for “not so certify,”,
and
(iii) by the deletion of subsection (3).”.
Amendment agreed to.
I move amendment No. 41:
In page 20, after line 5, to insert the following:
“ Amendment of Family Law (Divorce) Act 1996
26. The Family Law (Divorce) Act 1996 is amended -
(a) in section 6 -
(i) in subsection (2)(b), by the substitution of “, give to the applicant the names and addresses of persons who provide a mediation service for spouses who have become estranged and inform the applicant of the matters referred to in sections 10 and 11 of the Mediation Act 2017” for “and give to the applicant the names and addresses of persons qualified to provide a mediation service for spouses who have become estranged”,
(ii) in subsection (4)(a), by the substitution of “statutory declaration made by the solicitor” for “certificate signed by the solicitor”,
(iii) in subsection (4)(b), by the substitution of “statutory declaration” for “certificate”, and
(iv) by the deletion of subsection (5),
(b) in section 7 -
(i) in subsection (2)(b), by the substitution of “, give to the respondent the names and addresses of persons who provide a mediation service for spouses who have become estranged and inform the respondent of the matters referred to in sections 10 and 11 of the Mediation Act 2017” for “and give to the respondent the names and addresses of persons qualified to provide a mediation service for spouses who have become estranged”,
(ii) in subsection (4)(a), by the substitution of “statutory declaration made by the solicitor” for “certificate signed by the solicitor”,
(iii) in subsection (4)(b), by the substitution of “statutory declaration” for “certificate”, and
(iv) by the deletion of subsection (5),
and
(c) in section 43, by the deletion of “mediation services or”.”.
Amendment agreed to.
SCHEDULE
I move amendment No. 42:
In page 21, between lines 15 and 16, to insert the following:
“(f) establish an independent, transparent system for handling complaints and disciplinary proceedings.”.
In the public interest mediators should be subject to some kind of system of statutory regulation which is set out clearly and provides for an independent complaints handling system and disciplinary procedures for mediators who may be guilty of misconduct.
I very much appreciate the objective of the Deputy’s amendment but there are a number of reasons I wish to put forward for my disposition not to accept it. The amendment would impose a significant additional function on the proposed mediation council in respect of complaints and disciplinary matters.
Following publication of the report of the then Joint Committee on Justice, Defence and Equality on the draft Bill in 2012, my Department engaged in consultations with various bodies in the mediation sector to discuss the issue of regulation of the sector.
The outcome of the discussions was an oversight body, termed the Mediation Council in the Bill, and it should have the following functions: promote public awareness of, and provide information to the public about, the availability and operation of mediation services in the State; maintain and develop standards in the provision of mediation services; prepare codes of practice for mediators for approval by the Minister and oversee application of any approved code; establish and maintain a register of mediators who have subscribed to an approved code of practice; and advise on the establishment and operation of mediation information sessions in family law cases.
Mediation bodies pointed out that many mediators are members of regulated professions and are already subject to oversight and regulation by the regulatory bodies concerned. Moreover, the various mediation bodies have their own training frameworks, education courses, continual professional development, as well as disciplinary codes. I should point out that provision is made in section 9 for codes of practice, as we have already discussed, to include complaint and redress mechanisms and I am not convinced that the council should be given additional oversight in the Bill.
I would ask the Deputy to accept what I say having regard to the requirements of the council.
I will look at it. If I see fit, I will bring it in to Report Stage and we will look at it again. I will withdraw it for now.
Amendment, by leave, withdrawn.
Schedule agreed to.
Amendment No. 43 not moved.
Title agreed to.
Bill reported with amendments.
As the Bill has now completed Committee Stage, it is recommended that members submit Report Stage amendments to the Bills Office without delay as the Report Stage may be tabled at short notice.
I thank Deputy Flanagan in his first appearance before the committee in his new role and responsibility. On behalf of the committee, I wish him well in his continuing address of this portfolio. I thank his officials for their attendance and involvement in today's proceedings.