Bernard Allen (Cork North Central, Fine Gael)
Link to this: Individually | In context

Question 33: To ask the Minister for Justice and Law Reform the steps he is taking to promote mediation in legal disputes, particularly in the context of family law disputes; and if he will make a statement on the matter. [28228/10]

Dermot Ahern (Louth, Fianna Fail)
Link to this: Individually | In context

The law already makes extensive provision for the use of mediation to resolve legal disputes. Family law in particular includes provisions to encourage spouses to resolve disagreements by way of mediation. The Judicial Separation and Family Law Reform Act 1989, as amended, provides in sections 5 and 6 that both spouses' legal advisers must discuss with them the possibilities of reconciliation, of engaging in mediation to help effect a separation on an agreed basis, and discuss separating by agreement rather than by judicial separation.

Proceedings may be adjourned in order to give the spouses the opportunity to consider reconciliation, or to agree terms of their separation, and communications concerning such a reconciliation or terms of separation between the spouses and a third party are inadmissible as evidence in subsequent proceedings. Similar provisions are also contained in the Family Law (Divorce) Act 1996.

Similar legislative provision is made for disputes about guardianship and custody of, and access to, children. Part IV of the Guardianship of Infants Acts 1964, as inserted by the Children Act 1997, is framed to ensure that parties to a dispute concerning children are fully aware of the alternatives to guardianship, custody and access proceedings and encourages the parties to come to agreement.

These legislative provisions are bolstered by the Family Support Agency's family mediation service. The service provides mediation to separating couples. The service is free, professional and confidential. It enables couples, married and non-married, who have decided to separate or divorce, to negotiate the terms of their separation or divorce with the help of a trained mediator. As Minister for Social, Community and Family Affairs, I promoted the legislation that underpins the Family Support Agency.

The Legal Aid Board also plays a role in promoting mediation. The board has trained a large number of board solicitors and private solicitors in collaborative law. This new form of mediation is a way of resolving family law matters including divorce, separation and parenting disputes. I welcome the recent initiative of the board in considering ways to promote further the use of mediation.

The courts are also actively encouraging the use of alternative dispute resolution, whether in family law or otherwise. County registrars have a range of functions and powers designed to ensure that court time and resources are used to optimum effect by ensuring, among other things, that the parties can deal with as many non-contentious issues as possible prior to a court hearing.

In 2008, Circuit Court rules were introduced to empower a county registrar, inter alia, to identify the issues that are in dispute between the parties. A county registrar is also empowered to direct expert witnesses retained by the respective parties to consult with each other, and to require that the outcome of their consultations be recorded in a memorandum to be submitted to the county registrar and delivered to the parties, although the outcome of such consultations cannot bind the parties.

Consideration is being given to providing that the county registrar should satisfy himself or herself from the case progression process that alternative dispute resolution options such as collaborative law or mediation had been considered, and so certify before sending the case forward for hearing.

The Civil Liability and Courts Act 2004 provides expressly for mediation in personal injuries cases. Section 14 provides that a court may direct the parties to a personal injuries action to meet in a mediation conference to discuss and attempt to settle a case. I have made similar provision in the Multi-Unit Development Bill 2009 that is on Second Stage in this House, having been passed by the Seanad. I look forward to the publication, in the near future, of the final report of the Law Reform Commission on the question of a more structured approach to mediation in the legal system.

Séamus Kirk (Louth, Ceann Comhairle)
Link to this: Individually | In context

I will allow Deputy Flanagan one minute and will allow Deputy Rabbitte in as well.

Charles Flanagan (Laois-Offaly, Fine Gael)
Link to this: Individually | In context

You have been particularly generous with the time this afternoon a Cheann Comhairle for which I thank you.

I asked what steps the Minister was taking to promote the advancement of mediation, and it is regrettable that he did not take the opportunity to answer that. Mediation could save the State up to €200 million. Particular emphasis was placed on it in the McCarthy report, which is an aspect of the report about which we have heard very little. I would have thought the Minister might have taken the opportunity to comment on it.

The emphasis of the 1996 Law Reform Commission report on family law is placed on mediation rather than adversarial court structures. Does the Minister see any role for himself in the promotion or assistance of a shift away from adversarial issues towards mediation?

Dermot Ahern (Louth, Fianna Fail)
Link to this: Individually | In context

As legislators, we do that all the time in different Bills. We have done it for the Multi-Unit Development Bill 2009 by insisting on mediation and alternative dispute resolution as a statutory concept, in order to obviate the necessity for people to go to court. Indeed, for disputes involving Government Departments, the State Claims Agency insists that mediation and alternative dispute resolution be used. The Government is absolutely adamant that mediation will be used on every possible occasion. We liaise with the Courts Service and the Judiciary to ensure that this is available to people who are consenting to this particular way of proceeding.

Pat Rabbitte (Dublin South West, Labour)
Link to this: Individually | In context

This is a bit like the debate on alternative strategies to deal with the incarceration of young people and the cost that accrues to the taxpayer. Putting more resources into the mediation side of family law would be in the interests of the taxpayer in the long term. How frequently do we get cases in our clinics from people who find it very difficult to access the courts in this area? I refer to waiting times, free legal aid centres and so on. If the mediation services were available, they may obviate the necessity for resolution through the family courts.

Dermot Ahern (Louth, Fianna Fail)
Link to this: Individually | In context

I was the Minister for Social, Community and Family Affairs when we brought forward the Family Support Agency based on a report on the family. That has since been underpinned by statute. The Family Support Agency has premises in most of the major urban areas in the country and provides a free confidential mediation service to couples who are in dispute. That is used regularly and is a significant reason many people no longer come to clinics or go to court, because they are using those services.

This is also the case with the Legal Aid Board, where there are disputes that do not go to mediation. A substantial effort has been made by those people involved in the legal aid system. The board has trained solicitors who are involved in collaborative law and alternative dispute resolution in order to prevent people from having to open up their dispute in open court.