Ivana Bacik (Independent) | Oireachtas source

I agree with Senator O'Donovan's words on the Seanad and the advantages of commencing the Bill in this House. I again welcome the Minister of State, Deputy Ó Ríordáin, to the House, and commend Senator Conway on introducing this motion. It is in keeping with his general interest in this area, of which I am aware because I am a colleague of his on the Joint Committee on Justice, Defence and Equality. The motion calls for the Government to commit to the publication of the mediation Bill. Others have spoken of the history of the Bill, the scheme of which was published by the then Minister for Justice and Equality in March 2012 on foot of the publication of a Law Reform Commission report in November 2010, which made a range of recommendations and included a draft Bill. As Senator O'Donovan has noted, a commitment was also included in the programme for Government to encourage and facilitate the use of mediation. Pre-legislative scrutiny of the heads of the Bill was held by the Joint Committee on Justice, Defence and Equality in May 2012, which then published a report on it in June 2012 and I wish to speak briefly on some of the aspects on which the joint committee reported.

In general, however, as Senator Conway in particular has stated, the use of mediation is already well-established in family law and solicitors in family law disputes have a statutory duty to advise their clients about the option of mediation. We have had in place a well-established Family Mediation Service since 1986, which assists and offers an effective mediation service for families facing relationship breakdown and that is very important. However, mediation is not limited to family law, as we also have established mediation practices in respect of labour relations and industrial relations and I note that earlier today, Senators were debating the Workplace Relations Bill in this Chamber, which proposes to create a stronger emphasis on mediation services in workplace relations in general. Again, this was welcomed by all sides.

The objective of the Government's proposed mediation Bill is to promote mediation as a viable, effective and efficient alternative to court proceedings throughout a range of civil, commercial and family law disputes. It clearly goes well beyond the established mechanisms in family law and in the workplace. Again, this has received a broad welcome. When the joint committee held its hearings, it received submissions from a number of groups and individuals and heard from a range of different entities, which included the Chartered Institute of Arbitrators, the Dublin Solicitors Bar Association and Family Mediation Ireland. Essentially, the justice committee heard of the need to ensure greater regulation of mediators overall, as Senator Conway has noted, as well as the need to ensure that in a particular type of mediation, namely, family law dispute mediation, there might be specific principles for which provision would be needed, particularly for child-centred mediation practice.

I acknowledge the heads of the Bill proposed to make specific provision for the involvement of children in mediation and family law disputes if it was in their best interests. Some of the general principles also would have to give way to specific principles in the case of family law disputes. The Law Reform Commission report also acknowledged this and there are a couple of points in this regard. The commission set out the need for a statutory code of practice for mediators and this came up again at the joint committee's hearings. However, it also made recommendations beyond what one might think of as the typical mediation scenario. For instance, one strong recommendation was that in a dispute arising out of alleged medical negligence cases, health care professionals should be able to make an apology without this being an admission of liability. While this is a very difficult and contentious area, it is worth noting that the Law Reform Commission had addressed it back in 2010.

I will turn briefly to the justice committee's comments on the heads of the Bill. While its recommendations are being considered by the Government at present, like the others I wish to ascertain what will be the timeframe for the Bill's introduction, given the general welcome for it and the agreement of everyone on the need for it. However, I am glad the recommendations made and points raised by the joint committee are being considered and that the heads may be amended accordingly. The first issue we raised was that of public awareness, as there is a good deal of ignorance about the availability of mediation services. Many people go through the court system almost as a default without considering mediation. In that regard, the joint committee welcomed the fourth head, which provided that solicitors must, prior to commencing civil proceedings on behalf the client, advise the client to consider using mediation. The joint committee suggested there might be some strengthening of this duty and that there must be some obligation to provide a particular type of information or to require the Courts Service to make available information to potential litigants or in other words, to broaden the duty beyond the solicitor. Senator Conway already dealt with the issue of regulation of mediators and the absence of any regulation of mediation practice was a real difficulty that was addressed before the joint committee. Allied to that, another issue raised before the joint committee was that there is no single list or register of mediators and therefore, the public cannot see whether a person has any training or is following any particular code of conduct. I acknowledge this matter was addressed by Senator Conway.

On a similar note, the joint committee suggested it should be mandatory for all mediators to publish a code of conduct under which they practised and I believe the Bill seeks to address this through the preparation. I understand this issue is being considered on foot of the Oireachtas pre-legislative scrutiny stage before the Joint Committee on Justice, Defence and Equality. I understand there is discussion about the establishment of an oversight and development body which would, among other things, prepare codes of practice for mediators and would oversee the application of any approved code. However, it may well be that different codes of practice would apply, depending on the type of dispute. As I stated, family law disputes would have particular considerations that would not apply in other cases.

The joint committee also examined the issue of confidentiality and while that is provided for in the heads of the Bill, we suggested that head No. 10 be amended to provide statutory protection for mediators against being called as a witness in subsequent legal proceedings unless it was overwhelmingly in the interests of justice that the mediator give evidence. This really was to ensure that confidentiality was strengthened. Finally, the joint committee considered the issue of the withdrawal of a mediator. Some of those who made submissions to the joint committee stated that heads appeared to oblige a mediator to give reasons if the mediator wished to withdraw and we thought this was not in accordance with best practice.

My final point is that all Members would welcome the publication of this Bill. Ireland could be a centre for international mediation and international arbitration given its location and the number of multinational firms that are here. That point came up repeatedly at the hearings before the joint committee. I acknowledge this is a concern for everyone but the Bill must be published as soon as possible in order to ensure that this becomes the case.