Martin Conway (Fine Gael) | Oireachtas source

I move:

That Seanad Éireann: - acknowledges the Government’s commitment to further develop and expand mediation services throughout the State;

- notes the transformative element of mediation in civil proceedings whereby parties in a dispute take responsibility for their disputes and actions so that relationships are maintained in private, quickly and with dignity;

- recognises the widely accepted time and cost savings offered by mediation;

- recognises the experience and positive outcomes associated with mediation internationally as a practical means to resolve disputes and the EU directive on mediation which is now applicable in EU member states;

- acknowledges and affirms the work of the Law Reform Commission’s report on Alternative Dispute Resolution: Mediation and Conciliation;

- notes the provisions of the draft general scheme of the Mediation Bill 2012 which implements many of the Law Reform Commission's recommendations for a Mediation and Conciliation Act, in particular the introduction of a duty on solicitors and barristers to advise clients of the possible use of mediation as an alternative to litigation to resolve the dispute prior to commencing proceedings; and

- acknowledges the pre-legislative scrutiny undertaken by the Joint Committee on Justice, Defence and Equality on the general scheme of the Mediation Bill in 2012 and the recommendations contained in the Committee’s report; and

- calls on the Government to commit to the publication of the Mediation Bill, which incorporates the comprehensive recommendations of the Joint Committee on Justice, Defence and Equality to ensure that the many advantages of effective mediation are more widely available to resolve civil, commercial and family disputes.

I welcome the Minister of State, Deputy Ó Ríordáin. He is a regular visitor by now and a very worthwhile contributor. He gets things done, which I like.

Nobody likes going to court. Most people do not end up in court, but too many do. The reason is that alternatives are not examined. We have brought forward numerous proposals over the last number of years in respect of reducing the use of courts. Successful motions have been agreed in the House on community courts and restorative justice practices. Today, I am pleased to propose this motion on mediation.

In proposing the motion I acknowledge the significant amount of work that has been done to advance the cause of mediation in this country to date. The ball started rolling in this respect when the Law Reform Commission considered it necessary to produce a report on mediation in 2010. That report was published and its content made for interesting and common-sense reading. Following that report, the then Minister for Justice and Equality, Deputy Shatter, to his credit, published the general scheme of a mediation Bill in 2012, which he referred to the Oireachtas Joint Committee on Justice, Defence and Equality, of which I am a member, for its analysis. The committee sought public submissions and on their receipt engaged with stakeholders and made a series of recommendations, some of which were similar to what was recommended by the Law Reform Commission. The reality is that wherever in the world mediation is operated it tends to be successful. Indeed, in Ireland there is what I would describe as an ad hoctype of mediation, which is conducted by many good people in this country who facilitate it. Its success rate is 80%. It is certain that 80% of court cases do not end to people's satisfaction, so mediation works, even though it is ad hoc, unregulated and not really considered a profession in this country. Imagine what could be achieved if mediation was operated properly.

I am anxious that the legislation be published. It is not on the A list of legislation, but is on the B list. A full Bill should be published in 2015 to professionalise and regulate the mediation sector in this country. I wish to see a number of things happen. First, there should be a register of mediators. Second, there should be a certain standard of education for mediators. Currently, somebody can call themselves a mediator if they complete 40 hours of professional training. With the greatest respect, as I have no issue with the people who are providing the 40 hours of professional training, I do not consider that adequate or sufficient to enable people to provide the type of mediation that will work. Obviously, there are very successful practitioners in this country who have achieved successful results, but we must have a professional approach. In fact, I would favour a proper degree in mediation provided by some of the legal departments of our colleges. I would also favour mediation being made a compulsory module within the LLB and BCL degree courses provided by our universities at present. Mediation forms a part of some of the law degrees in this country, but it is essential that it become a compulsory element.

Similarly, it should be compulsory for barristers and solicitors to advise and recommend to their clients that in the first instance, and as a first response, they should consider mediation. Some elements within the legal sector tend not to favour mediation because of the possible loss of fees, although that would only apply to a minority. However, we must legislate to ensure that mediation is recommended in all company and civil cases. At present it is a requirement in family law, and it works extraordinarily well in that area. This country has done extraordinarily well in terms of mediation within family law, and I believe this should be extended to civil law, when neighbours are in dispute with each other, and company law, where companies are in dispute with suppliers and so forth. There is no reason that mediation cannot be a first response in the vast majority of legal cases in this country. At present it is not, and it should be.

There should be a proper regulatory authority to deal with mediation. It would supervise and issue codes of conduct and practice in terms of education, disciplinary procedures, dealing with mediators and defining what is and is not acceptable. We must ensure that when malpractice and bad standards occur there is some type of recourse for people and a regulator to whom they can make complaints. The regulator would have power of censure.

I want mediators to have a licence whereby they would have to apply for it and it would be subject to renewal. I want there to be proper public awareness of mediation and of the service and work that mediators provide. The level of knowledge of mediation in this country is currently very low. That is something that can and should be changed and the introduction of this legislation would ensure that can happen. I want international companies that are providing mediation services in this country regulated by such legislation. We can become a centre of excellence in the area of mediation in this country. We are considered to be a country that is well ahead of most of our peers when it comes to arbitration. We are seen as being the seat of excellence for arbitration internationally, and not only in Europe. There is no reason the same cannot happen in the area of mediation. Given the high reputation we have internationally in peacekeeping and in terms of our having a neutral status, there is no reason in the world we cannot be a seat of excellence for mediation the same as we are the seat of excellence for arbitration. All this can and should happen.

I would like 2015 to be the year when we get the legislation published and enacted. That would be a significant first step to ensuring mediation in this country is properly regulated, that the public know about it, that mediators who are doing a professional job and want to be regulated are regulated, and where rogue mediators and people who put the word "mediation" after their name even though they do have a sufficient and appropriate qualifications to be able to do so are taken out of the system. For too long we have had light touch regulation, be it in planning or in the supervision of architects and people who claimed to be architects having only completed a FÁS course on drawing. The same was happening in those areas but thankfully that was tidied up and credit to this and previous Government for achieving that. We now have a responsibility, as a core part of the overall suite of legal services reform in which the Government is engaging, to ensure that mediation needs to be the first responder. I am happy to propose this motion in the hope that we will see a chain reaction following on from it where, by the end of 2015, we will have a mediation Act following the passing of such legislation by both Houses of the Oireachtas.