Clare Daly (Dublin Fingal, Independent) | Oireachtas source

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.