Tuesday, 11 July 2017
Mediation Bill 2017: Report Stage
I move amendment No. 1:
In page 5, line 5, to delete “civil”.
Amendment No. 1 proposes deletion of the word "civil" from the first line of the Long Title. The term "dispute" rather than "civil dispute" is in use throughout the Bill, so "civil" is superfluous in line 1. Deputies will recall that on Committee Stage I introduced the new Part 6, which includes amendments to family law legislation. The purpose of these amendments is to ensure consistency and coherence between the requirements placed on solicitors under this legislation and the requirements on solicitors under other legislation, namely, the Guardianship of Infants Act 1964, the Judicial Separation and Family Law Reform Act 1989 and the Family Law (Divorce) Act 1996. Amendment No. 2 inserts references to these family law Acts into the Bill's Long Title.
I move amendment No. 2:
In page 5, line 14, after “sessions;” to insert the following:“to amend the Guardianship of Infants Act 1964, the Judicial Separation and Family Law Reform Act 1989 and the Family Law (Divorce) Act 1996;”
I move amendment No. 4:
In page 6, line 21, to delete “confidential facilitative voluntary” and substitute “confidential, facilitative and voluntary”.
This is purely a drafting amendment in respect of the definition of mediation in section 2 and it improves the readability and clarity of the section.
I move amendment No. 5:
In page 7, between lines 33 and 34, to insert the following:“(i) proceedings where there are allegations of domestic violence or assault between the relevant parties;
(j) proceedings where the safety of one of the parties (and/or their children) is at risk;”.
These amendments seek to amend section 3 which deals with the scope of the Act, and to prevent it from applying to proceedings where there are allegations of domestic violence or assault between parties or where the safety of one of the parties is at risk. The amendment was tabled as a result of information provided to us by Women's Aid and we recognise that in the Bill. Mediation remains a voluntary process and mediation is promoted as an alternative to litigation, including in family law cases. We recognise that this is appropriate but we do not believe it applies to cases of domestic violence. We are conscious that new legislation is passing through the Houses of the Oireachtas to amend the law on domestic violence and, mindful that the phrasing may need to be tidied up at a later stage, we believe it can be done through that legislation.
For clarity, rather than listing specific legislation as per section 6, which excludes proceedings under the Domestic Violence Acts 1996-2011 from the scope of the Bill, this will apply to situations where domestic violence is an issue but may not have been prosecuted. It is simply not appropriate for a solicitor to advise his or her clients to attend mediation in cases of custody or access where there has been domestic violence. Abusers may attempt to bring forward mediation proceedings to prolong matters, and that is one of the key concerns of those who have passed on information to us in regard to this legislation. In a 2010 report on alternative dispute resolutions, the Law Reform Commission stated that they were not suitable where they involved proceedings under the domestic violence Acts, and it suggested a broad wording to include situations where there are safety issues. That is what we are attempting to reflect in amendment No. 6.
Amendment No. 7 would provide that a mediator, prior to commencing mediation, would make inquiries whether there has been domestic abuse in the relationship. This was also advocated by those in the sector dealing with the effects of domestic violence and those who have helped people who have suffered abuse by a spouse or other relative. There is a possibility that victims of abuse could be pushed into mediation settings, which would be wholly inappropriate. These amendments reflect concerns of people who have worked with victims, and the Law Reform Commission has also made suggestions along these lines. I hope the Minister will accept them on that basis.
I appreciate the comments of Deputy Ó Snodaigh and the intention behind them. We had an opportunity to debate these issues in the earlier Stages of the legislation and I am unable to accept the amendments. I will make two important points.
First, I wish to make the point quite clearly that in section 3(1)(h), on the matter of the scope and extent of the legislation, there is a deliberate exclusion of "proceedings under the Domestic Violence Acts 1996 to 2011". This is an important and deliberate exclusion.
Second, it is important we underscore the fact that mediation is, and will remain, a voluntary process, and this is made clear in the definition of "mediation" in section 2. While the role of the mediator is to assist the parties to resolve the dispute at hand, it is really a matter for the parties to make the decision as to whether they will engage in the mediation process. Members will recall that the Bill was amended on Committee Stage to ensure a coherence and consistency between its provisions and the existing mediation related provisions in the Family Law Acts, including those under the Judicial Separation and Family Law Reform Act 1989 and the subsequent Family Law (Divorce) Act 1996. Sections 5 and 6 of the 1989 Act require solicitors acting for both the applicants and the respondents in judicial separation cases to discuss the matter of mediation and the options with their respective clients and provide them with names and addresses of organisations and persons deemed suitably qualified to provide the services. Sections 6 and 7 of the Family Law (Divorce) Act 1996 imposed the same obligations on solicitors acting for the parties in divorce cases. Neither of these Acts excludes the mediation obligation on solicitors in cases in which domestic abuse is alleged or safety issues are put forward by a party. There are no such exclusions in the 1989 Act nor in the 1995 Act because mediation is by its very nature a voluntary process. This will remain the case under the legislation before the House, and that is important. A party who has experienced domestic abuse is unlikely to enter mediation unless he or she does so, for example, to protect children from the ordeal of court proceedings. The amendments in the name of Deputy Ó Snodaigh's colleague, Deputy Jonathan O'Brien, would not alter existing obligations on solicitors to discuss the options of mediation with parties to cases in which domestic abuse is alleged. This would require amendments to the 1989 and 1996 Acts, not this Bill.
I caution against any action that might be regarded as hasty or not properly thought through as far as these issues are concerned because. Mediation, as we all know, and this goes to the heart of the legislation, offers a less adversarial, less stressful, speedier and more efficient alternative to court proceedings in family law cases, especially cases in which children are involved, in order that the legacy of the adversarial nature, hostility, bad blood and bitterness that often results from drawn-out, lengthy, delicate, sensitive and, indeed, hurtful court proceedings can also be avoided.
Regarding amendment No. 5, I wish to bring to the attention of the House, in case anyone is not aware of it, that I have written a book on mediation. I am sorry to refer to my own book but mediation is a very important topic in the context of abuse. As a mediator over many years, I know that screening in mediation is very important, particularly when it comes to domestic abuse. As we all know, there are different types of abuse: physical, sexual, emotional, social, economic and psychological, as well as harassment and other forms of abuse. I will not go into great detail on this. Suffice it to say that in my experience as a mediator, I believe one must err on the side of extreme caution in mediating any type of case in which domestic violence is alleged. I have not, and would not, nor would many of the mediators who are trained well in Ireland today, especially under the auspices of the Mediators Institute of Ireland, of which I was previously a member, in any circumstances mediate a case in which there are domestic violence issues, as I have outlined in my book, Appropriate Dispute Resolution in Ireland, published by Jordan Publishing in 2012. It is there for anyone to read. I am conscious of what the Minister has said about this. We must have faith in our mediators and the screening they carry out. I would certainly not advocate mediation in a case of this nature.
I have listened to what the Minister has said. I am here because Deputy O'Brien is attending a committee meeting dealing with the Citizens' Assembly report. He cannot be in two places at once, which is a pity. I am mindful that it is not just Deputy O'Brien who suggests this. Others, as I mentioned earlier, who deal day in, day out with the victims of domestic violence have suggested the insertion of such a provision to prevent mediation in cases in which allegations of domestic abuse have arisen. What the Minister read out in respect of section 3(c), I think-----
What he outlined is relevant to a case in respect of which proceedings have begun. Sometimes an allegation is made but that does not mean proceedings have begun or are ever likely to begin. Often what we find in domestic violence cases is that the allegation is made, but because of the fear and the dominance of one of the parties, one party will not initiate proceedings. However, sometimes the visible effects can be seen.
The letter from Women's Aid, which as far as I know was sent to most Members of the House, gave the example of "Abigail (not her real name) [who] spoke about her experience of going through mediation with her abusive ex-husband":
After the separation, they were both in court to deal with custody of and access to their children. Her ex-husband began arguing, while she sobbed and when the judge intervened, her ex-husband said he wanted to attend mediation. The judge agreed. Abigail didn't feel she could object, so she went along. Her ex-husband turned up an hour and a half late. When mediation started, he began "shouting and roaring", cursing and saying the children did not want her. Every time Abigail tried to speak he would stand up and shout over her. The mediator eventually ended the session and said they could reschedule when he had calmed down. The mediator went out and spoke to the receptionist, while Abigail's ex-husband waited by the lift for 10 or 15 minutes. The mediator took her out another door and brought her to a Women's Aid office nearby for support.
We should insert the provisions in this amendment just to give additional protections. The Minister says those protections may already be there but this amendment would make it very clear what is intended.
I understand Deputy O'Brien's intention and objective in tabling this amendment. Obviously, no one here would want someone in an abusive relationship to be forced into a mediation process where that abusive relationship could be re-enacted. Obviously, for someone who is the victim of domestic violence or any other form of violence, the appropriate place for that to be resolved is not in a civil court of law but a criminal court of law. However, I take on board what the Minister has said, that is, that the whole objective of mediation is that it is voluntary. The solicitor of a wife who is the victim of domestic abuse will offer her the option of going to mediation. She does not have to take it. There is nothing mandatory about it. She can say she has no interest in going into a room with the person who has abused her before. However, it is the case that the two parties will be in court together during court proceedings, so there is an option in mediation whereby the wife can say she does not want to be party to this and can decide not to go along with it.
The reality is that if it goes to court both persons are going to be in the room at the same time. It is incumbent on judges to ensure that there is no abuse within the courtroom. I appreciate the intention of Deputy Jonathan O'Brien, but because it is a voluntary arrangement I do not believe that it is necessary. There is also the reference to proceedings involving assault. There can be many proceedings where people claim such circumstances. A person might go to a nightclub and be attacked by bouncers. That can end up in our civil courts. There is no reason why that dispute should not be mediated. The great thing is that it can be decided upon by the person who has taken the claim. They can either go to mediation or decide not to.
The legitimate concerns that Deputy O'Brien had probably do not require this amendment because it is a voluntary arrangement.
Another issue about amendment No. 6 which would be particularly unfortunate and could have the opposite effect to what we are trying to do with this Bill is that any weakening of support for mediation in family law cases on the grounds of alleged domestic abuse could in some circumstances encourage the making of such allegations with a view towards getting around the obligations on solicitors to provide information on options to mediation and mediation services. That would be most regressive.
I take the points raised by Deputy Madigan and acknowledge her contribution to this debate and to this legislation.
Amendment No. 7 to section 8, in the name of Deputy O'Brien, would have the effect of requiring the mediator to inquire separately and distinctly of the parties whether there had been domestic abuse in a relationship and then take a view on whether mediation would be suitable in the case. Such a choice, intervention or obligation would really be most intrusive and I do not see that as being encompassed in the role and function or task of the mediator. Mediation is by its nature a voluntary process. It is a matter for the parties themselves to decide whether to seek a resolution to a dispute that they may have through mediation. If there are children involved in a dispute that results in the safety of the children being at issue, there is a logical and direct remedy available, which is to proceed through the criminal courts, the HSE and the Garda Síochána, rather than a process where a mediator might be required to make a choice. I cannot accept the amendments.
There are quite a number of other points that I could make about these amendments. A key point is that it is not a voluntary process if a person has been the victim of domestic violence, because often emotional blackmail is involved or the former relationship has left one of the parties feeling inadequate or unequal to the dominant person.
The Minister mentioned a remedy through the criminal courts. We have seen over the years that the number of case of domestic violence which end up in court is minuscule in comparison to what should be dealt with there. Recent court judgments would not encourage many of those victims to go down that route.
I refer to the Women's Aid document. It refers to another report from one family who quoted another woman concerning how vulnerable she felt in the sessions themselves by virtue of the fact that the mediator was male.
It is not always the case that a voluntary scenario means that someone can opt in or opt out. The potential for emotional blackmail exists, especially when children are involved and where the dominant person is alleged to have been involved in domestic violence, even in the absence of proceedings. I take the Minister's point that if proceedings have been initiated then the matter is excluded anyway, but in the vast majority of cases of domestic violence proceedings are never initiated or are never brought forward beyond the initial allegation. That is sad, and is a slight on our system as a whole. Why can we not provide proper protections which would encourage those who are victims to take those cases? In the interim, this is an additional protection that should be considered for this legislation.
Mick Barry, John Brady, Tommy Broughan, Pat Buckley, Ruth Coppinger, Seán Crowe, David Cullinane, Martin Ferris, Kathleen Funchion, Séamus Healy, Brendan Howlin, Alan Kelly, Martin Kenny, Mary Lou McDonald, Catherine Martin, Denise Mitchell, Catherine Murphy, Carol Nolan, Eoin Ó Broin, Caoimhghín Ó Caoláin, Donnchadh Ó Laoghaire, Aengus Ó Snodaigh, Jonathan O'Brien, Louise O'Reilly, Jan O'Sullivan, Maurice Quinlivan, Brendan Ryan, Seán Sherlock, Brian Stanley.
Bobby Aylward, Seán Barrett, John Brassil, Declan Breathnach, Pat Breen, Colm Brophy, James Browne, Richard Bruton, Peter Burke, Mary Butler, Catherine Byrne, Thomas Byrne, Jackie Cahill, Dara Calleary, Ciarán Cannon, Joe Carey, Pat Casey, Shane Cassells, Lisa Chambers, Marcella Corcoran Kennedy, Michael Creed, John Curran, Michael D'Arcy, Clare Daly, Pat Deering, Regina Doherty, Stephen Donnelly, Timmy Dooley, Andrew Doyle, Bernard Durkan, Damien English, Alan Farrell, Peter Fitzpatrick, Charles Flanagan, Simon Harris, Michael Harty, Seán Haughey, Danny Healy-Rae, Michael Healy-Rae, Martin Heydon, Heather Humphreys, Paul Kehoe, Seán Kyne, John Lahart, James Lawless, Charlie McConalogue, Finian McGrath, Mattie McGrath, Michael McGrath, Joe McHugh, Tony McLoughlin, Josepha Madigan, Mary Mitchell O'Connor, Aindrias Moynihan, Eoghan Murphy, Denis Naughten, Hildegarde Naughton, Tom Neville, Michael Noonan, Éamon Ó Cuív, Jim O'Callaghan, Kate O'Connell, Patrick O'Donovan, Fergus O'Dowd, Kevin O'Keeffe, Fiona O'Loughlin, Frank O'Rourke, John Paul Phelan, Anne Rabbitte, Michael Ring, Noel Rock, Shane Ross, Eamon Scanlon, Robert Troy, Mick Wallace.
I move amendment No. 7:
In page 10, between lines 2 and 3, to insert the following:“(iii) make enquires separately with the parties as to whether there has been domestic abuse in the relationship to assess if the case is suitable for mediation,”.
I move amendment No. 8:
In page 10, line 9, to delete “any code of practice” and substitute “the code or codes of practice published under section 9".
Deputy Clare Daly sends her apologies. She is attending the abortion committee meeting and I am moving amendment No. 8 on her behalf. Amendment No. 9 is in my name and that of the Minister. Deputy Daly's amendment is pretty similar except that she wants to insert "code or codes of practice" instead of "any code of practice" in section 8(1)(c). A reference to "any code of practice" to which a mediator subscribes is really the same as "the code or codes of practice of practice" to which he or she subscribes as "any" covers the possibility that the mediator might subscribe to more than one code of practice. The provision for more than one code to be published under section 9 is simply because mediation can, is and will be used in very different situations from family law to commercial law. The requirements of those distinct situations will be very different. Procedures to be followed and issues to be watched out for will be quite different in a mediation involving two parents separating versus a commercial law dispute between two international corporations. It makes sense, therefore, to have different codes of practice tailored to these different categories of dispute.
I turn to the requirement for mediators to furnish to parties to mediation the code or codes of practice published or approved under section 9 to which they subscribe. Our amendments are in some way of a piece with Deputy Madigan's amendment No. 11, which requires mediators to abide by the code of practice published or approved under section 9. All of the amendments have the goal of getting mediators to abide by a code of practice created under section 9. We are supportive of the additional requirement proposed by Deputy Madigan in amendment No. 11 for mediators to abide by the code of practice published under section 9 albeit we note that if our amendment and that of the Government with regard to there being more than one code publishable under section 9 are accepted, Deputy Madigan's amendment would need to be amended in turn to reflect the fact.
Amendment No. 9 is one we are happy with and we can accept it without further debate. Amendment No. 8 involves an issue we discussed recently on Committee Stage. Deputy Daly proposes to replace the reference to "any code of practice" with "the code or codes of practice published under section 9". I have a difficulty with this wording because it refers only to a code published under section 9(1)(a) and therefore excludes any reference to a code of practice approved under section 9(1)(b). The intention is and the hope would be that the mediation sector will come together in support of a code to be drawn up by the sector itself under section 9(1)(b) and I am unable to accept amendment No. 8. I do not think there was any intention on her part to create one, but reading the amendment with sections 9(1)(a) and 9(1)(b), there is a difficulty. I ask Deputy Daly to accept that I cannot agree to the amendment for that reason.
The objective of amendment No. 9 is to insert after the word "practice" the words "published or approved under section 9". The section will now provide for an obligation on a mediator to furnish to the parties prior to the commencement of the mediation a copy of any code of practice published or approved under section 9. However, the objective in the current draft is to get the mediator to provide parties with a copy of the code of practice to which that mediator subscribes. I am just concerned and would be interested to hear the Minister's views as to whether because of the full stop after "section 9" in amendment No. 9 one could be a mediator who does not subscribe to this particular code of conduct, but under the terms as it will now be drafted, one could just furnish the parties with a copy of a code of conduct published under section 9.
I appreciate Deputy O'Callaghan's point. One issue we have had as mediators is quality control. It is a self-regulating profession and as such it is important that all mediators would subscribe to a code of practice. The Mediators Institute of Ireland has a stringent code of practice which ensures that standards are maintained on training and everything else.
Its code of ethics is important because there is no statutory basis in that regard at the moment. Therefore, I want to ensure the Minister includes this. Whether it would be too prescriptive that every mediator would subscribe to a particular code is something the Minister can consider. However, we want to ensure we have quality standards in this area.
We discussed this matter recently on Committee Stage. What is contained in the amendment tabled by Deputy Wallace and me meets an issue that was raised at that Stage by way of clarification, which is that the mediator must furnish the parties with a copy of any code of practice under section 9 to which he or she subscribes. If we recall it, on Committee Stage a fear was expressed that a mediator might seek to subscribe to an informal code or a self-made code rather than a section 9 code. What both Deputy Wallace and I are doing is clarifying that issue. I believe it meets the concern that was expressed on Committee Stage.
I move amendment No. 11:
In page 10, between lines 26 and 27, to insert the following:“(5) The mediator should abide by the code of practice established under the provisionsspecified in section 9.”.
This also relates to the code of practice. Any fundamental principles of a code should have a useful set of definitions and explanations. It would need to be fundamental principles such as confidentiality, impartiality, neutrality, respect, self-determination and voluntary participation. One of the main issues consumers or those who have participated in mediations have faced is accountability. One way of helping consumers have accountability is to have a code of practice.
I acknowledge the point raised by Deputy Madigan in respect of the amendment to section 8. However, section 8(1)(c) provides that the mediator shall "furnish to the parties a copy of any code of practice to which he or she subscribes in so far as mediation is concerned". It goes without saying that the mediator should abide by such terms. Otherwise the parties would have a good ground for grievance or a complaint as soon as matters had commenced. Section 9(2)(f) already provides for a code of conduct to include "procedures to be followed by a party for redress in the event of dissatisfaction with the conduct of a mediation". This would seem to me to mean that any departure from the terms of a code of practice by the mediator would form the basis of a grievance or complaint. Therefore, I am not inclined to accept amendment No. 11 for these reasons, although I acknowledge the point raised by Deputy Madigan.
Amendment No. 12 is in the names of the Minister and Deputy Clare Daly. Amendments Nos. 12 to 18, inclusive, are related. Amendment No. 13 is a physical alternative to amendment No. 12, amendment No. 15 is a physical alternative to amendment No. 14, and amendment No. 17 is a physical alternative to amendment No. 16. Therefore, amendments Nos. 12 to 18, inclusive, may be discussed together.
I move amendment No. 12:
In page 10, line 28, to delete “may,” and substitute “shall, as soon as practicable after the coming into operation of this section and”.
I refer to the contributions on Committee Stage of Deputies Clare Daly and Mick Wallace who withdrew a number of amendments concerning codes of practice in order to allow for further reflection on my part. I wish to record my appreciation to them for doing so. In return, I have come back with amendments Nos. 12, 14 and 16, which I believe address concerns raised in relation to section 9(1). This subsection provides:
The Minister may, having had regard to the matters specified in subsection (2)—(a) prepare and publish a code of practice to set standards for the conduct of mediations, or
(b) approve a code of practice prepared by a person other than the Minister which purports to set standards for the conduct of mediations.
With amendment No. 12, which has been tabled by Deputy Daly, the subsection would now provide that the Minister shall, as soon as practicable after the commencement of the section, publish or approve a code or, indeed, codes of practice. On Committee Stage, we also had a discussion on whether there should be only one code of practice or if it was possible to have a number of codes of practice. Making provision for more than one code would facilitate dedicated codes for specialised areas such as consulting with children or the growing area of more senior or elder mediation. I note that a number of specialised codes have been developed on the international stage. It is important to point out that, unlike general codes of practice for mediators, these codes tend to contain more detailed provisions concerning the specialised areas at hand.
I have tabled amendments Nos. 14 and 16, which were also proposed by Deputy Clare Daly. These provide for the possibility of there being more than one code of practice for mediators. Amendment No. 17, in the name of Deputy Wallace, seeks to achieve the same end. I hope Deputy Wallace will be in a position to withdraw his amendments, bearing in mind the amendments tabled by Deputy Daly and me which seem to fit the Bill in any event.
Amendment No. 18 was intended as a drafting amendment but, having regard to the others, it now appears unnecessary. I will not be pressing amendment No. 18.
I appreciate that the Minister has taken many of the arguments made on Committee Stage on board. Amendment No. 9 is dependent on amendment No. 13, and vice versa. The substitution of "shall" for "may" here makes it imperative that the Minister publish or approve a code of practice. The Minister and Deputy Clare Daly both have the following amendment No. 12 to delete "may" and substitute "shall, as soon as practicable after the coming into operation of this section". Both the Minister and Deputy Daly agree with substituting "shall" for "may". The Minister and Deputy Daly are essentially accepting that it may take time to publish or approve codes of practice, which is understandable. It is arguable that "as soon as practicable" is a little vague and I would be a little concerned about a possible delay in the publication or approval by the Minister of the code or codes of practice. However, it is not something that I believe is a huge problem. The main point is that the three of us are seeking to substitute "shall" for "may".
If we accept that there should be no single definitive code of practice, which is implicit in amendment No. 9, my amendments Nos. 15 and 17 would operate in the same way or have the same function as amendments Nos. 14 and 16 in the names of Deputy Daly and the Minister. In fact, it is possible that inserting "a code or codes of practice" instead of "codes" as proposed in my amendments leaves open the possibility of a single code of practice. Therefore, I am happy to accept the Minister's amendments Nos. 14 and 16. My amendments to insert "codes" could possibly oblige the Minister to publish or approve multiple codes, even if turns out that only one code is required.
I move amendment No. 19:
In page 10, line 33, to delete “may” and substitute “shall”.
The Bill contains no minimum training standard or protection for the designation of mediator. I proposed amendments relating to minimum training standards on Committee Stage and I note that Deputy Madigan is proposing the insertion of a reference to minimum training for mediators in amendment No. 22. After discussions with Department of Justice and Equality officials since Committee Stage, I understand there is a worry certain difficulties might arise in terms of possible judicial reviews based on such amendments, particularly with regard to those who are already practising as mediators but who might not meet the minimum training standards in the code or codes of practice published or approved by the Minister. Although I have not brought forward my amendments on Committee Stage relating to minimum training standards to Report Stage, I still believe the lack of provision for this in the Bill is unfortunate. However, without a reference to such minimum training standards at least a provision for continuing professional development training requirements for mediators in section 9(2)(a) should be an essential part of any code of practice, hence my proposal to change "may" to "shall" in line 33.
The Bill as it stands will allow those who undertake significant ongoing continuing education to be equated with those who do not refresh and update their mediation skills and education. Indeed, there are many good provisions listed already in the Bill and they should all be essential requirements for a code of practice. The insertion of "but is not limited to" is intended to allow for the inclusion of other or extra provisions in any code of practice beyond the essential provisions listed in section 9(2)(a) to section 9(2)(g). This is necessary if we amend "may" to "shall", as proposed in amendment No. 19. The proposed deletion of "any of" is intended to make all of these provisions mandatory or essential requirements of the code of practice. The points listed for inclusion in the code of practice are good, but there is too much scope to avoid what should be fundamental requirements for a code of practice. The provisions in the code are non-binding as the Bill stands. The change from "may" to "shall" and the deletion of "any of", therefore, would be a change from optional to mandatory provisions for the code of practice. These provisions should be mandatory.
Amendment No. 23 is necessary if we accept amendments Nos. 19 to 21, inclusive. The provision for inclusion in the code of practice, as it is, states "(c) procedures to be followed by mediators in the conduct of a mediation requiring consultation, by a mediator, with a child;". Clearly, this provision will not always be relevant, hence the need to insert "where relevant" if we make the provision in section 9 mandatory, as I believe we should.
This group of amendments relates to codes of practice under section 9(2) of the Bill. I regret I am unable to accept amendments Nos. 19 to 21, inclusive, and 23. On Committee Stage, concern was expressed that the list of matters that could be covered in a code of practice was too prescriptive and that section 9(2) be amended to provide that other matters relevant to the conduct of mediation be included. To address that concern and following further discussions, as has been outlined by Deputy Wallace, I have tabled amendments Nos. 24 and 25. These amendments provide for the insertion of an additional paragraph (h) in section 9(2) which allows a code of practice to include such other matters as may be relevant to the conduct of mediation. That addresses the issues of concern. I believe amendments Nos. 24 and 25 are probably preferable to Deputy Wallace's proposal in amendment No. 20 that the words "but is not limited to" be inserted in the introduction of section 9(2). The legal concern is that the use of those words could potentially extend the scope of the subsection beyond matters relevant to the conduct of mediation. There is no great difference in terms of substance between amendment No. 25 and amendment No. 20. On balance, I hope Deputy Wallace can accept my proposal.
With regard to amendments Nos. 19 to 21, inclusive, acceptance of the amendments would mean that each and every code under section 9 would have to cover all matters listed in section 9(2). As I mentioned earlier, our intention is to have a code of conduct applicable to all mediators, with a possibility of more specialised codes for mediators who may be involved in specific areas of specialty. Deputy Daly appears to recognise the problem that this would give rise to because she proposes in amendment No. 23 to insert the words "where relevant" in paragraph (c), where reference is made to procedures to be followed by mediators in the conduct of a mediation involving children. The use of the words "where relevant" here could weaken this provision by permitting mediators to decide when such procedures were relevant. My view, and it was a view expressed on Committee Stage and I hope it still is the view, is that the code should apply in all respects in cases involving children.
I realise the points I am making are probably technical in nature, but we could well have amendments that we probably did not intend to have. I do not say that with any disrespect to Deputy Wallace because what we are trying to do is achieve the best possible practice. In that regard, I prefer amendments Nos. 24 and 25 to amendments Nos. 19 to 21, inclusive, and 23.
We are trying to ensure that the code or codes of practice published under section 9 incorporate certain basic elements that clearly apply to all mediation, such as continuing professional development requirements for mediators, ethical standards to be observed by mediators, procedures for redress and so forth. I also have proposed amendment No. 23. I note that the Law Society of Ireland has stated it is very disappointed that proportionate and appropriate regulation of mediators has not been given a statutory basis in the Bill. While amendments to that effect are outside the scope of the Bill, it was put to us that we should urge the Minister to take urgent steps to bring this about as soon as possible. As I noted recently with regard to the unregulated profession of psychotherapy, allowing anybody to assume a so-called professional title that is nothing of the sort can be risky. The Minister referred to legal technicality and said amendment No. 19 would cause problems from a legal point of view.
I ask the barrister in our company to give his opinion as I am interested in hearing what he has to say on the matter.
I must turn on my meter. I see the point the Deputy is making. If the word "shall" is included, the code of practice will have to include each of the matters in question. I take the Minister's point that one does not want to be prescriptive as to what will be in a code of practice. For this reason, we would be better off giving a discretion to the Minister when it comes to drafting what will be in the code of practice. If the Bill states the code "shall" include certain things, it becomes difficult to include other factors. My quick preliminary view is that it would be too prescriptive to use the word "shall". I hope Deputy Wallace is satisfied with my answer.
I move amendment No. 22:
In page 10, between lines 34 and 35, to insert the following:"(a) minimum training required to be appointed mediator;".
The amendment relates specifically to the need for mediators to have minimum training, which is an issue Deputy Wallace also raised. I am pleased the legislation is before the House in the first instance and I do not intend to press the amendment. I appreciate the Bill provides that mediators who have been trained will be required to engage in continuing professional development. It would be preferable, however, to introduce a minimum training standard for all mediators who qualify. Such a requirement would be desirable to maintain standards for people who will participate in mediation in future. I will leave the matter to the discretion of the Minister.
I acknowledge the reasonable point made by Deputy Madigan and her indication that she does not intend to press the amendment. However, a code of practice for mediators is not the most appropriate place to deal with training standards on the basis that a code of practice is for mediators rather than those who are seeking to become mediators. I draw the Deputy's attention to 1(b) of the Schedule, which provides that the functions of the Mediation Council will include the maintenance and further development of standards. The issue raised by the Deputy would be more appropriately addressed in this part of the Bill. While the Deputy makes an important point, the proposed amendment is not one for this part of the Bill.
I move amendment No. 26:
In page 14, between lines 9 and 10, to insert the following:"(9) In order to ensure quality control and ongoing professional development, mediators should be registered with the Council.".
To ensure quality control and ongoing professional development, mediators should be registered with the Mediation Council of Ireland. The Minister referred to minimum training. The inclusion of a clause providing for the registration of mediators with the Mediation Council of Ireland, as established by the Bill, would greatly facilitate the council in its role as regulator of mediation. This brings us back to the argument about maintaining standards. For this reason, it is important to include this measure. I am interested in hearing the Minister's views on the proposal.
I very much agree with Deputy Madigan that mediators should register with the Mediation Council and I am confident that those who are actively engaged as mediators will do so on a voluntary basis by subscribing to the section 9 codes of practice we have been debating. However, I am not convinced that imposing an obligation on mediators to register with the Mediation Council at the outset would be useful in the circumstances. On the contrary, it could be said that to impose such a statutory obligation at this stage could result in legal challenges to the mandate or authority of the council. On balance, while there is certainly merit in the point raised, I am not disposed to accepting the amendment. However, these issues will be important when reviewing the legislation and the role and function of the Mediation Council. We could revert to them at some future date, but not at this stage.
I move amendment No. 27:
In page 14, line 28, to delete "advise the client to consider mediation" and substitute "discuss the possibility of engaging in mediation".
Discussions with clients about mediation arose when we discussed judicial separation and divorce in the context of family law in sections 5 to 7, inclusive. The use of the term "advise" in this context goes against the voluntary ethos of mediation. Clients should be given the option of engaging in mediation. I provide this option while acting as a solicitor, rather than a mediator. Advising clients to consider mediation is not consistent with the principle of voluntary engagement. For this reason, I ask the Minister to amend the wording.
Deputy Ó Snodaigh referred to the voluntary ethos that applies to mediation. It is important that mediation is freely chosen. We do not want solicitors to compel clients to engage in mediation. Amendments could be introduced at another time to mandate information meetings but we certainly cannot mandate mediation. The current wording should be amended.
I am concerned that the proposed amendment would weaken the section and, therefore, the legislation. Part 3 deals with the obligations on practising solicitors and barristers as regards mediation and how the process will be addressed. Section 14 was drafted in the context of the overall objective of the legislation, which is to promote the use of mediation as an alternative to court proceedings. The section places an obligation on the lawyer to advise clients to consider mediation as a means of resolving a dispute and to provide information to clients on mediation services and their benefits.
This is consistent with the recommendation of the Law Reform Commission, LRC, in the draft Bill attached to its report. I fear that, however unintended it might be, Deputy Madigan's proposal in this amendment would weaken or dilute the obligation by merely requiring a solicitor to discuss the possibility of engaging in mediation. The legislation would not have an effect and, therefore, I cannot accept the amendment.