Mediation Bill 2017: Second Stage (Resumed)

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

If one enters any law library anywhere in the world, one will notice that the shelves are full of volumes of reported court cases. The reported cases record disputes between parties which they could not resolve themselves and which required the intervention and determination of a court of law. Law reports record the facts of a dispute, the parties involved, the arguments advanced, the legal issues in dispute, the identities of the judge and lawyers and the decision of the court. Every country has law reports which record previous decisions. The reason they are recorded is to assist future courts to reach decisions in cases and on legal issues which are similar. While law reports play a valuable role in our understanding of the law and the manner in which disputes are determined before the courts, it is important to acknowledge that many people regard the fact that a case goes to court and requires the determination of a judge as constituting a failure on the part of those who are party to the dispute. Many consider that cases which reach a determination could and should have been resolved by the parties themselves without having to go through the process of a court imposing a decision on them. For each reported law decision in this country, there are at least 100 court resolutions of which the public has never heard. The vast majority of disputes initiated in the courts are resolved by the parties reaching a settlement among themselves. One of the important skills of a lawyer or other adviser advising people in a difficult position is letting them know that there is always a mechanism and an advantage in trying to resolve the dispute without awaiting a determination from the court. That does not simply apply to court cases, it also applies in life, including politics. It is beneficial to reach a resolution of disputes where conflict can be avoided and a compromise can be attained. It provides certainty for the individuals involved.

There are a number of advantages to people settling disputes without requiring them to go before a court. The purpose behind this legislation is to encourage those involved in disputes to mediate them in order that they will not have to go through the costly and lengthy process of having to go all the way to adjudication by a court of law. There are many advantages for parties who can manage to settle a dispute between themselves rather than having to go the whole way to a determination by a court of law. The first advantage is that settlement provides certainty for the parties. If individuals go before a court of law, it is extremely difficult for them to be certain about the outcome. The advantage of settlement is that they know what they are agreeing to and are participants in that agreement. They are party to the agreement and, as a result, can feel satisfied that they have secured from it part of what they sought to achieve by being involved in proceedings in the first place. A second advantage is that settling a court case buys off risk. Courts are risky places for individuals and not like other parts of life such as politics where one can make an agreement which constitutes a partial victory and a partial defeat and where there is compromise and give. In courts, there are only winners and losers. If one takes a civil action, one will either win or lose it. As a result, it is always preferable for people to recognise that they should be able to buy off that risk by seeking a resolution of the dispute before it goes to court. A third advantage of settling a court case is that individuals find a resolution cheaper and quicker than if they wait for the process to go through the courts to reach a final determination.

Settlement can be achieved through mediation. That is the main reason I welcome the Mediation Bill 2017 which is being introduced by the Government having been proposed for a number of years. Mediation is a method for parties to be formally manoeuvred into the process of compromise.

For that reason it should be welcomed, and we as a Legislature should seek to put it on a statutory basis in order that people know it comes with the formal approval of the House and the State.

It is important to note on a practical basis what is involved in the process of mediation. In the process of mediation a mediator is appointed. This person is a qualified individual who will try to reach a resolution of a dispute between two parties. We have seen it happen in politics. It happens quite successfully. The most famous mediator we have had in this country was a foreign man, Senator George Mitchell, who came here and managed to mediate a settlement for the parties in the North of Ireland, which ultimately led to the historic Good Friday Agreement. Mediation is not simply limited to cases which go to court. It can be used in any other walk of life as well, where there may be disputes between parties.

It is also important to note the mediation process is voluntary. Nobody is being forced into it against his or her will. Many people will want their day in court. Many people will want to ensure they try to achieve every last demand they have set out in their court proceedings through the court process. This happens seldom but individuals are entitled to seek to try to have their results achieved in the fullest way possible.

Many people wonder why it is that all the court case disputes one reads about in newspapers cannot be resolved through some form of mediation or some form of settlement at an earlier stage. Part of the reason is that individuals before the courts in civil actions, it is important to note we are speaking about civil and not criminal actions, find themselves in difficult financial or professional positions. There also can be a difficulty on the part of individuals in acknowledging mistakes, facing up to wrongdoing or acknowledging they were at fault. Primarily this can be a stance adopted by individuals before the courts who refuse to see the advantage of trying to reach a resolution. There is an obligation on all lawyers to try to ensure their clients involved in court cases recognise there is an option of trying to settle the case in advance. Each lawyer worth his or her salt should be able to bring to the attention of the client the benefits of trying to settle a dispute and the advantage to the client in trying to resolve it without going to court.

There is a certain irony in the fact it is the State, through the Government, that is trying to introduce legislation to encourage parties before the courts to resolve their disputes through mediation. The entity that is most often before our civil courts is, in fact, the State itself. The State is involved in more litigation than any other party coming before our courts. In many instances the State is one of the most difficult parties with which to get a resolution. Part of the reason for this is making a decision to resolve a dispute involves individuals taking responsibility and probably opening themselves up to criticism. If a dispute is settled, and it is not settled on the maximum terms possible, or a sum of money is paid out which someone potentially may not have had to pay out had the matter gone to court, it means someone is making a decision for which he or she is ultimately responsible. Sometimes there is a tendency on the part of many litigants, but particularly the State, not to seek to resolve litigation before it is determined by the courts, partially because there is concern individuals who make the decision could be subjected to criticism for making it. This is something we need to change and although the Mediation Bill when enacted will apply to all parties, we must recognise the State itself needs to make considerable steps to ensure it encourages mediation in respect of proceedings instituted against it.

Mediation should not just be recognised as being available in circumstances where litigation has instituted. There are many examples in employment and environmental law where disputes that have arisen can be resolved before they ever get near a court or a lawyer. This is why it is very important in the context of employment law, particularly in the public sector, that mechanisms are put in place whereby an employee who has a complaint or dispute against his or her employer in the public service has an opportunity to try to reach a resolution of the complaints through a mediation process.

Sometimes individuals before the courts are not aware of the consequences of pushing a case the whole way to court, where there can be either victory or defeat. People need to recognise they may have very legitimate claims and may have claims deserving of empathy but, in fact, such claims may not give rise to a legal claim against the other party. Sometimes people come to us as politicians and we give them a very fair and empathetic hearing. We feel and recognise they seem to have been treated harshly. This does not mean they have an entitlement to win a court case against the State or any other entity they sue. Courts are, and should be, cold and impersonal places. People looking for empathy should not go to a court. All courts will do is identify whether a person's rights have been violated or some legal entitlement to which someone has a claim has been or deserves to be vindicated. Courts will not get involved in listening to general complaints in circumstances where there is not a specific identification of a party's legal rights or how the law has been broken.

I will now briefly consider the Bill and some of its relevant sections. Section 3 of the Bill sets out the nature of the proceedings to which the Mediation Bill will apply. Section 3(1) notes it will apply to any civil proceedings but the section then excludes a number of civil proceedings. The exclusions are understandable and defensible and it is right, for instance, that judicial review proceedings or proceedings involving infringements of the fundamental rights of the person should not be subject to the mandatory provisions of the Mediation Bill. In particular, where the Bill will be of use when enacted is in the area of employment law, which is an area with a considerable number of opportunities for mediators to enter to try to resolve disputes.

Section 6, which deals in general with mediation, also deserves mention. It emphasises in section 6(2) that participation in mediation shall be voluntary at all times. It is absolutely essential the voluntary nature of mediation is kept in place. It is not like an arbitration where, under terms of a contract, the parties agree if there is a dispute they shall go to arbitration and be bound by it.

Section 8 refers to the role of the mediator. It is important to recognise a mediator must have sufficient qualifications, training and experience and the Bill intends to do so. What one does not want to happen is for individuals to find themselves going through a mediation process that provides no proper mechanism for them to achieve settlement. The mediation process itself costs money. It is absolutely essential the process has a chance of success and is organised in such a way that it is designed to succeed. This will only happen if the mediators who are to be recognised under the legislation have the appropriate qualifications, training and experience.

Section 10 of the Bill deals with the question of confidentiality. It is implicit in most mediation agreements or explicit in many mediation agreements that the process shall remain confidential. The reason it is so important for it to remain confidential is if the process of mediation does not succeed, inevitably the parties will go on and the case will be dealt with in court. What cannot happen is parties are able to refer to what was said in the mediation process in the court hearing that takes place subsequently, in which individuals should be able to attend and participate without being worried their submissions or admissions will be used against them.

Section 14 deals with the substance of what the Bill requires. Ultimately, the Bill proposes a net requirement on legal practitioners, namely, solicitors at present. It requires that if a solicitor is giving information to, or is about to institute proceedings on behalf of, a client in respect of a dispute covered by the Bill, he or she must at the outset provide the client with information about the advantages of resolving the dispute and the benefits of mediation.

There will now, therefore, once this Bill is enacted, be a requirement of all solicitors to ensure that, before the case starts, they tell the client that there are benefits to trying to settle this case and there are benefits to the mediation process. I hope that does not turn into a box-ticking exercise whereby solicitors will simply say that they have to tell a person formally that there are benefits to mediation. That will undermine the whole purpose of the legislation and it will also undermine the real benefits for parties in trying to reach a resolution of disputes early on. Section 15 will not apply until such a time as barristers have an opportunity to institute proceedings on behalf of a client. If and when that occurs, in that instance a similar obligation will be placed upon a barrister as has been placed upon the solicitor under section 14. It then sets out in section 16 the role of the court in the mediation. It is important to note that, in many respects, the courts are ahead of the Legislature when it comes to mediation. For many years now, the rules of the Commercial Court have contained a provision whereby the court can, of its own volition, direct parties to engage in mediation before the commencement of a hearing of an action. That has succeeded on many occasions. However, I agree with the provision in the Bill because unless the courts are seen actively to promote mediation, it is unlikely that parties are going to buy in to the process. It is appropriate and I welcome the fact that section 17 sets out a requirement for the mediator to make a report to a court.

There are potential downsides to the mediation process. One of the downsides, as I mentioned earlier, is that it will cost money. It is going to cost money to pay for a mediator who is going to come in and for persons who are representing the party or the parties who are at the mediation for a period of a day or sometimes two days. Nonetheless, there is a benefit at an early stage in trying to resolve a dispute by seeking the intervention of a mediator. We should also recognise that mediation is not a matter exclusively for court cases. It can be used in employment disputes. I am sure it can also be used in politics. There are some problems in politics which appear intractable and that parties find difficult to resolve. They can be resolved through the intervention of a mediator. I note that at the talks between Fine Gael and ourselves, we did not go for the option of having a mediator there to chair the talks or organise the discussion, but it did happen, I understand, for Fine Gael's discussions with other parties.

Any intractable political problem that exists - I know it is not dealt with by this legislation - can also benefit from the intervention of a mediator or mediation. There are certain political disputes at present. We have a party at present which has an intractable dispute around trying to organise the replacement of its leader. A couple of younger politicians are trying to remove an older leader. Perhaps that might benefit-----

Is Deputy Micheál Martin leaving?

Perhaps that might benefit from the intervention of a mediation. I only suggest that in deference to the Minister of State, Deputy Stanton. Others may be prepared to do it. Perhaps the Acting Chairman could sit in as a mediator. He could try and hear what the two young, aspiring politicians have to say and have them listen to the old, experienced man who is the person who is leading the party, and then he might come up with a report. It would probably take about six months or so and may involve a resolution of the matter.

In any event, Fianna Fáil and I will be supporting this Bill. I welcome that it has been introduced.

I am told that is beyond the scope of this Bill. As a psychotherapist, I might be able to offer better skills than mediation.

I welcome the opportunity to participate in this debate. The Bill before us is very important legislation and will bring many real benefits to people who find themselves in dispute. The main purpose of the Bill is to encourage and promote settlement of civil disputes by way of mediation as opposed to the very costly litigation process. It will do this through a number of actions, including specifying the principles that are applicable to mediation and specifying arrangements for mediation that can be used as an alternative to costly litigation. It will also provide for the publication of a code of practice which mediators may subscribe to and for the recognition of a body to be known as the Mediation Council of Ireland. Finally, there is provision for parties to family law to attend mediation information sessions. One of the real benefits this Bill will bring is that if used early enough, it can avoid costly litigation which in many cases places undue financial hardship on those involved.

One of the challenges of getting mediation more openly available will be making people more aware that it will be available. I know that from dealing with many very contentious issues in my constituency work that mediation would be a difficult process for those involved. The biggest challenge this legislation will face will be to get those affected to accept mediation as a means of settling their differences. In many cases the people involved are hell-bent on going the legal route and will spend vast sums of money on legal advice and representation. We need to change this mindset and also that of the legal profession. I am happy that this Bill will establish obligations for solicitors to advise their clients to consider mediation and also provide information about mediation services. Likewise similar obligations will also be extended to barristers where they are taking proceedings on behalf of a client who is not represented by a solicitor. I will be interested in seeing how this will work when enacted. I have fears that the legal profession will not embrace this as we would hope but I will adopt a wait and see policy. As I have stated, the biggest challenge will be raising awareness and acceptance that mediation is available. On that matter, I am pleased to see that the courts will be allowed to invite opposing parties to consider mediation and provide them with valuable information about the benefits of the mediation process.

The provisions of the Bill will allow the mediation to avail of civil proceedings with certain exceptions. Included in these exceptions are proceedings under the Arbitration Act, disputes arising within an employment context, matters under tax and customs legislation, proceedings under the Child Care Act and proceedings under the Domestic Violence Act. The Bill will also allow the Minister to publish or approve a code of practice for the conduct of the mediator.

It is proposed that prior to commencement of mediation, a mediator must provide all parties with a copy of any code of practice to which he or she subscribes. I have a major problem in this regard as the Bill does not appear to require mediators to subscribe to a code of practice. How will this work if a mediator does not subscribe to a code of practice? Surely this will lead to problems and create unnecessary problems for all concerned. As far as I am concerned, any person acting as a mediator must subscribe to a code of practice and this must be mandatory in all cases. I would prefer to see this included in the Bill. 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 them. It would make a mockery of the legislation and leave it open to abuse.

Section 12 proposes the establishment of the Mediation Council of Ireland and the setting out of minimum standards to which the council must adhere. The council will be required to submit a report to the Minister by the end of June each year in which it will report on its performance and activities during the preceding year. This will ensure the performance of the council will be open to scrutiny each year. I have listened to many representations from concerned groups about this Bill. One such group, Women's Aid, has made some very valid points and I welcome them. They include that a provision to exclude from the mediation process family law cases where domestic violence is alleged to have taken place. It also proposes that a provision be included in section 8 that, prior to commencing mediation, a mediator make separate inquires of each party as to whether there has been domestic violence in the relationship to assess if the case is suitable for mediation. It also states that solicitors, barristers and mediators should be trained in recognising domestic violence.

I very much welcome the passage of this Bill through the House. There are enormous benefits attached to it. It will provide significant savings to those involved in legal disputes and should improve their experience of the legal process. I want to put on record that I, too, share the concerns of Women's Aid and hope and expect that its concerns can be addressed satisfactorily. I also hope my concerns about mediators and the code of practice are addressed. We cannot have a situation where a code of practice exists and yet the mediators are not required to subscribe to it. It must be mandatory for mediators to subscribe to an approved code of practice. I welcome this Bill and look forward to seeing it enacted in due course.

I thank Deputies for their constructive comments on this important Bill. As mentioned at the outset, its general objective is to promote mediation as a viable, effective and efficient alternative to court proceedings. Its enactment will help to reduce legal costs, speed up the resolution of disputes and reduce stress levels for all the parties. The Bill is also part of the Government’s broader strategy to promote the increased use of alternative dispute resolution mechanisms and to reduce legal costs.

As Deputy O'Callaghan said, the Bill contains two key provisions relating to obligations on solicitors and barristers as regards mediation. Section 14 will require practising solicitors to advise clients to consider mediation as an alternative to court proceedings. Under section 4, solicitors must provide clients with information on mediation services, including details of mediators, information about the advantages and benefits of mediation, and information on confidentiality obligations and the enforceability of mediation settlements. To ensure that this requirement is met, the section provides that where 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 respect of the client and the proceedings to which the declaration relates. If the declaration is not submitted, the court will adjourn the proceedings until the solicitor complies with the requirements. This is intended to ensure that the obligation is taken seriously. I agree with Deputy O'Callaghan's emphasis on the voluntary nature of mediation. The right of access to the courts must be recognised even if mediation is promoted and encouraged. That is important.

The Bill also takes account of certain matters raised by the Joint Committee on Justice, Equality and Defence hearings following its pre-legislative scrutiny of the general scheme, including the matter of regulation of the sector. I chaired those hearings at the time and I thank all the bodies and individuals that offered information, scrutinised the Bill and appeared before the committee to engage with members. This led to the Bill being improved as a consequence. That is the way that pre-legislative scrutiny should work.

I am somewhat concerned that certain Bills are going through the House at the moment - especially Private Members' Bills - which are not being scrutinised in that way. That is a pity because they could otherwise be improved and enhanced by using this methodology. I ask all colleagues to take account of that.

Arising from the committee’s observations, further discussions were held with the mediation sector. The Bill now provides for the possible future establishment of a mediation council to undertake the functions set out in the Schedule to the Bill. This is an opportunity for the various parts of the mediation sector to join forces in order to promote mediation and develop mediation standards.

I have taken into account what Deputy Fitzpatrick said about standards, accountability and qualifications. I look forward to engaging with the sector on this aspect as the legislation proceeds through the Dáil.

I commend the Bill to the House.

Question put and agreed to.