Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

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 itself 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-----

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