Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I am very pleased to have the opportunity to introduce the Mediation Bill 2017. I look forward to our discussion of its provisions and support from all sides of the House for its early enactment. Its general objective is to promote mediation as a viable, effective and efficient alternative to court proceedings, thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress and acrimony that often accompany court proceedings. Therefore, the Bill also forms part of the Government's overall strategy to tackle the issue of legal costs.

Support for the development of mediation as an alternative to court proceedings has been building in recent years. In its 2010 report entitled, Alternative Dispute Resolution: Mediation and Conciliation, the Law Reform Commission reviewed the development and effectiveness of alternative dispute resolution, ADR, mechanisms and recommended the enactment of legislation to underpin such processes. The Bill incorporates many of the commission's recommendations on mediation. Meanwhile, revised rules of the superior courts which facilitate and encourage the referral of disputes to a process of mediation or conciliation have also come into operation.

Before turning to the main provisions of the Bill, I would like to make some general points. First, "mediation" is defined as a confidential, facilitative and voluntary process in which the parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve their dispute. I emphasise the word "voluntary" in this context: mediation is and under the legislation will remain a voluntary process. Moreover, while the Bill seeks to promote mediation as an effective and viable means of resolving disputes, it also recognises that it would not be an appropriate mechanism for resolving certain proceedings such as claims against the State for alleged infringements of fundamental rights, proceedings concerning children under the child care Acts or proceedings under the domestic violence Acts. These exceptions and some others are outlined in section 3.

Part 3 of the Bill contains two key provisions that impose obligations on solicitors and barristers in respect of mediation. Put simply, the Bill requires solicitors to advise their clients to consider the use of mediation as a means of settling the dispute before embarking on court proceedings and to provide them with information on available mediation services. The Bill makes a similar provision in relation to barristers that will apply if and when in the future barristers are permitted to issue proceedings directly on behalf of clients. In order to ensure this key requirement is given effect in practice, the Bill requires solicitors to make a statutory declaration that the obligations placed on them by this legislation have been respected.

I should add that a new Part was inserted on Committee Stage in the Dáil comprising amendments to the Guardianship of Infants Act 1964, the Judicial Separation and Family Law Act 1989 and the Family Law (Divorce) Act 1996. The purpose of the new Part is to ensure consistency between the mediation related provisions contained in these Acts and the provisions of this legislation.

Section 12 of the Bill makes provision for a mediation council. This provision which did not form part of the general scheme of the Bill stems from submissions received and observations made by the Oireachtas Joint Committee on Justice and Equality on a regulatory framework for the mediation sector. The mediation sector is made up of a diverse range of bodies. For example, seven such bodies attended the public hearings held by the joint committee, while submissions were received from several other interested parties. For this reason, the Bill does not set out to impose a rigid regulatory structure on the sector. Instead, it provides for the possible future establishment of a body to be known as the Mediation Council of Ireland on condition that certain conditions are met.

Section 12 provides that where, at some future date, the Minister for Justice and Equality is satisfied that a body complies with the minimum standards set out in the Schedule and is, at the same time, sufficiently representative of the various mediation interests involved in the mediation sector, he or she may, following a consultation process, make an order declaring that that body will be recognised for the purposes of the legislation as the Mediation Council of Ireland. The council, if and when established, would be conferred with the functions set out in paragraph 1 of the Schedule. The intention is that the council would be self-financing.

I now turn to the main provisions of the Bill. Section 1 makes provision for the entry into operation of the Bill. While it is intended that the general provisions on mediation will enter into operation at the earliest opportunity following enactment, the commencement of sections 12, 13, 15 and 23 will require the making of specific orders at a later date.

Section 2 contains definitions for the purposes of the Bill.

Section 3 provides that the Bill's provisions will not apply to certain proceedings, for example, disputes arising within an employment context referred to statutory dispute resolution processes such as those provided by the Workplace Relations Commission, WRC; matters under tax and customs legislation; proceedings under the child care Acts or the domestic violence Acts.Other exclusions include judicial review proceedings and proceedings against the State in respect of alleged infringements of fundamental rights and freedoms. Furthermore, nothing in this legislation is intended to replace mediation or other dispute resolution processes in any other statue or under any other agreement or contract. Section 4 on regulations and section 5 on expenses are standard provisions in legislation of this type.

Part 2 of the Bill contains general provisions regarding mediation. Section 6 deals with general conditions under which mediation takes place, making it clear that participation in mediation must be voluntary and that it is for the parties themselves to determine its outcome. Section 7 provides for an agreement to mediate to be signed by both the mediator and the parties to the mediation. The agreement to mediate outlines the manner in which the mediation is to take place and the matters to be included in the agreement.

Section 8 outlines the role of the mediator. It specifies the actions the mediator must take prior to the commencement of the mediation and those that he or she must take during the mediation. Section 8(1) provides that the mediator must supply the parties with information concerning his or her qualifications, training and experience, as well as a copy of any code of practice under section 9 to which he or she adheres. Section 8(4) derives from a recommendation of the Law Reform Commission Report and provides that a mediator may, exceptionally and at the request of all the parties, make proposals for the resolution of the dispute but that it will be for the parties alone to decide whether to accept such proposals.

Section 9 provides for codes of practice for mediators. It provides that the Minister shall, as soon as practicable after the commencement of the Act, prepare or publish a code or codes of practice setting standards for the conduct of mediations. Section 9(2) lists a number of relevant matters that may be covered in such a code or codes. As an alternative, the Minister can approve and publish a code that has been prepared by a mediation body or, indeed, another body which purports to set standards for the conduct or mediations. Subsections (3) to (7), inclusive, make provision for the manner in which a code of practice may be published, amended, revoked or even withdrawn.

Section 10 deals with the crucial issue of confidentiality in mediation. It makes clear that all communications relating to a mediation - including oral communications - will be confidential and cannot be used for or in any other proceedings. A limited number of justified exceptions to the general rule on confidentiality are, however, specified in section 10(2).

Section 11 deals with the enforceability of mediation settlements. It provides that only the parties have the power to decide if a mediation settlement has been reached and the manner in which it is to be enforced. Subject to the exceptions specified in this section, a mediation settlement will be enforceable as a contract at law where it is in writing and signed by all the parties and also by the mediator.

As stated earlier, the Bill contains proposals for a regulatory structure that derive from discussions during pre-legislative scrutiny of the general scheme of the Bill. Section 12 makes provision for the possible future establishment of a mediation council to oversee the development of the mediation sector. Such a council would comprise representation from the main mediation bodies together with a number of public interest members. The intention is that the council would be a self-financing and representative of both mediation interests and the public interest. Under the section, the Minister could, at some future date and by order, declare the establishment of a body to be called the “Mediation Council of Ireland”. The section also provides that there can only be one such council in existence at one time and that the council must be sufficiently representative of mediation interests and must also meet the minimum requirements provided for in the Schedule to the Bill. Section 13 provides for reports of the mediation council to be submitted to the Minister and for the laying of such reports before the Houses of the Oireachtas.

Part 3 of the Bill specifies the obligations concerning mediation which are imposed on practising solicitors and perhaps, at some future date, on barristers. Section 14 is a key provision. It imposes mediation-related obligations on a practising solicitor and specifies the advice and information regarding mediation which a solicitor must provide to his or her client prior to the initiation of court proceedings. The section further provides that the originating document to commence proceedings must be accompanied by a statutory declaration made by the solicitor evidencing that the solicitor has complied with the requirements of the section. Where the required statutory declaration is not lodged with the originating documents, the court must adjourn the proceedings to enable the solicitor to comply with the section at that stage. The section does not apply to certain matters arising under the Guardianship of Infants Act 1964, the Judicial Separation and Family Law Act 1989 and the Family Law (Divorce) Act 1996. Separate mediation-related provisions are already included in those Acts. However, sections 24, 25 and 26 contain amendments to those provisions in order to ensure consistency and coherence between those Acts and the provisions of this Bill. Part 6 of the Bill contains these amendments.

Section 15 outlines the obligations on practising barristers regarding mediation. The provision will apply only when it is lawful for a practising barrister to issue proceedings on behalf of a client who is not represented by a solicitor. Under the section, the Minister may impose obligations analogous to those imposed on solicitors or banisters following the publication of any report under section 34 (1) of the Legal Services Regulation Act 2015 relating to the unification of the professions of solicitor and barrister and after consultation with the Law Society and Bar Council.

Part 4 of the Bill contains provisions regarding the role of the court in mediation. Section 16 empowers a court to invite parties in civil proceedings that have already commenced to consider using mediation to resolve their dispute. Under this provision a court may, on its own initiative or following an application by a party to the dispute, invite the parties to consider using mediation to settle the dispute. The section further provides that where the parties decide to use mediation, the court will adjourn the proceedings and may make an order extending the time for compliance by any party with any provisions of the relevant rules of court or of any order of the court in these proceedings.

Section 17 provides for mediator reports in such cases. It provides that where, following an invitation by the court under section 16, the parties engage in mediation the mediator will then report to the court on the outcome of the mediation. Section 18 concerns the impact of mediation on limitation and prescription periods. In short, it provides for disregarding time taken for mediation under the Statute of Limitations.

Section 19 provides for the adjournment of court proceedings to permit the mediation option to be explored. This provision is in addition to any existing power of the courts with regard to adjournments.

Section 20 deals with the fees and costs of mediation. Under section 7(b), the agreement to mediate should specify the manner in which the fees and costs of mediation will be borne. Such fees and costs must be reasonable and proportionate to the importance and complexity of the issues at stake and, of course, to the amount of work undertaken by the mediator. Section 21 deals with the factors that may be taken into account by a court in awarding costs.

Section 22 is a technical amendment to section 15 of the Civil Liability and Courts Act 2004 which will allow the court of its own initiative to refer a personal injuries action to mediation. Section 15 of the Civil Liability and Courts Act 2004 already provides that a court may at the request of any party to a personal injuries action, direct that the parties to the action meet to discuss and attempt to settle the action at a mediation conference.

Part 5 of the Bill deals with the provision of mediation information sessions in certain circumstances. In its 2010 report, the Law Reform Commission underlined the potential benefits of mediation in family law proceedings as an alternative to adversarial court proceedings and recommended that parties be required to attend information sessions in advance of the commencement of such proceedings during which the benefits and advantages of mediation can be properly and adequately explained.

Section 23 seeks to give effect to this recommendation. It provides that the Minister may, for ensuring the availability of such sessions at a reasonable cost and in suitable locations, prepare and publish a scheme for the delivery of such sessions, or approve a scheme for the delivery of such sessions by another person or body. The Legal Aid Board, for example, is already involved in the provision of a free family mediation service, the benefits of which are widely acknowledged, especially in cases in which children are involved. Details of the procedure for adopting such a scheme are set out in subsections (3) to (7), inclusive. Section 23 (8) clarifies that the section applies to family law proceedings and proceedings under sections 67A(3) or 117 of the Succession Act 1965.

The Schedule outlines the minimum requirements with regard to the establishment of a mediation council under section 12.In particular, it specifies the general functions of the council and its membership. The main functions of the council, if established, would be as follows: to promote public awareness of mediation; develop standards in the provision of mediation, including continuous professional development; prepare codes of practice for mediators; establish and maintain a register of mediators; and advise the Minister on the establishment of a scheme to deliver mediation information sessions.

The council would consist of 11 members, a majority of whom, including the chairperson, would represent the public interest. The council would be independent in the performance of its functions and be self-financing from fees calculated in accordance with its rules.

This Bill will promote mediation as a viable, effective and efficient alternative to court proceedings. I believe that enactment of the Bill will speed up resolution of disputes, reduce legal costs associated with such disputes and reduce or avoid the stress involved in adversarial court proceedings.

I commend the Bill to the House.