Dermot Ahern (Louth, Fianna Fail)

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.

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