Charles Flanagan (Laois, Fine Gael) | Oireachtas source

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 16 to 19, inclusive, to section 9 while mainly technical in nature contains 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 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.