Martin Conway (Fine Gael)
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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 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.

Ivana Bacik (Independent)
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I would be delighted to second this motion. I welcome the Minister of State, Deputy Ó Ríordáin to the House.

Paddy Burke (Fine Gael)
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Senator Bacik, it is a Fine Gael motion. Senator Jim D'Arcy can second it and I will reserve his right to do so.

Paddy Burke (Fine Gael)
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The Senator is reserving his right to speak.

Denis O'Donovan (Fianna Fail)
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I welcome this motion and thank the proponents of it for putting it before the House. The Fianna Fáil Party supports the notion of mediation services, as set out in the motion. The only problem we would have is that we would criticise the Government's delay in the publication of the mediation Bill, the general scheme of which was agreed in 2012. The proper codification of mediation services in Ireland would have the potential to reduce business and legal costs in a significant way and bring about a reduction in the time parties to disputes spend in court. I concur with many of the points made by my colleague, Senator Conway.

A pilot mediation programme conducted in the Dublin district and circuit courts in 2013 resulted in 831 concluded agreements, which resulted in saving an estimated 11.3% of court sitting time and annual savings of €119,000 plus in Courts Service costs, in addition to €225,000 in legal and board costs. We urgently need the enactment of the mediation Bill to make these cost savings widely available as well as delivering faster and better quality outcomes for those involved in disputes.

A draft general scheme of a mediation Bill was published in 2012 by the Department of Justice and Equality. The aim of the proposed Bill is to encourage and facilitate the use of mediation in resolving civil, commercial and family disputes. It seeks to provide an effective and efficient alternative to litigation by reducing legal costs and speeding up the resolution of disputes. There are a few important points I wish to put on the record. As currently drafted, and subject to the Bill going through the Houses, the scheme of Bill introduces a new statutory obligation on solicitors and barristers to inform their clients, prior to commencing court proceedings on their behalf, about the possibility of using mediation as an alternative means of resolving a dispute. That is a central plank of the proposed legislation. It provides that all mediation related communication between parties shall be confidential, an essential ingredient. It also provides that it is for the parties themselves to determine the enforceability of any agreement reached as a result of the mediation. It further provides a statutory basis for the courts to invite parties to consider mediation and adjourn court proceedings while mediation is ongoing, echoing existing procedures in the court rules.

This is not world breaking news, although it is in the mediation circle, but if we consider the high profile case involving our international and famed golfer currently before the courts, it was decided to give the parties another six hours or another day and, hopefully, the matter could be worked out through mediation. That makes a good deal of sense, rather than the adversarial position that is sometimes adopted in courts. The Bill also introduces an obligation on mediators to provide the parties with information on their training and qualification. The Bill contains a provision that allows parties to request a mediator at any time during the mediation process to make proposals to resolve the dispute, which the parties can then accept or reject. Such a request would effectively convert the process into conciliation. Conciliation is a particularly popular mechanism for resolving disputes in the construction industry, as has already been set out. The provision in the Bill is not expanded in detail and therefore it is likely to be the subject of further debate as it is developed. I urge that the Minister would introduce the Bill in the Seanad first and then by the time it gets through both Houses, certain improvements and changes can be made to the Bill.

The Bill is not intended to replace existing systems for resolving disputes outside of courts systems, such as those operated by the Employment Appeals Tribunal and the Labour Court in the employment field, or the Private Residential Tenancies Board in regard to landlord and tenant disputes. It would work in tandem with them and not as a replacement for them.

The Oireachtas Joint Committee on Justice, Defence and Equality, of which I am a member, has already completed pre-legislative scrutiny of the concept of this Bill. However, the Government has yet to indicate when the Bill will be published in full and brought before the Houses of the Oireachtas. I hope the Minister of State will clarify that here tonight, as has been requested also by Senator Conway.

I am sure I do not have to remind the Minister of State that the Fine Gael-Labour programme for Government called for the encouragement and facilitation of mediation to resolve civil disputes, which is an aspect of their proposals with which I on this side of the House, and we as a party, would concur. The programme states that mediation will deliver significant costs and time savings for businesses and the State and that the Mediators Institute of Ireland, known as the MII, has demonstrated that significant savings can be made through mediation.

Mediation is a voluntary process of conflict prevention and resolution that allows the parties an opportunity to address their issues in a confidential, private and safe environment. Mediators are trained in conflict resolution skills and techniques and have the expertise needed to give people the best possible opportunity to resolve their disputes. I am not an expert on family law; it was not my forte, and when I was studying law family law was not even on the curriculum. However, having been a practising solicitor for many years, I have found from my experience that it is essential in the very sensitive and tense negotiations in family cases in particular, and sometimes also in commercial cases, that people can stand back from the fray and try to settle these disputes outside the court. The adversarial system often drives a wedge between parties and sometimes that gap cannot be bridged.

I support the motion. This is a welcome development and we urge the Minister of State, in so far as he can, to fast-track the Bill through the Houses of the Oireachtas. I would like to see it introduced in this House first. We need extra legislation in this Chamber.

Martin Conway (Fine Gael)
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Absolutely.

Ivana Bacik (Independent)
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Hear, hear.

Denis O'Donovan (Fianna Fail)
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Often having gone through this Chamber, a Bill goes into the other House much improved, having been widely debated. I believe there is a lot more wisdom in this Chamber and more time for debate than sometimes there is in the other House.

Forgive me for saying that but it is a matter of record. Moreover, many of my colleagues, who are much wiser than me, already have said this.

Ivana Bacik (Independent)
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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.

Jillian van Turnhout (Independent)
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I also welcome the Minister of State and join in commending Senator Conway on putting this motion on the agenda to give Members an opportunity to discuss this matter in the Chamber. I certainly concur with Senators O'Donovan and Bacik about urging the Minister to bring the Bill before the Seanad first and I hope a clear date will be given in this regard. I believe the Seanad is highly conducive to this type of Bill, by virtue of the manner and the environment in which it works and on such issues, it has proven itself to be a good forum. As Members have stated, the area of mediation that requires legislation ranges across the medical, family, civil, personal injury, property and commercial fields. While this is quite a wide area, obviously, the area I know best is family law and that is where my main focus will be today However, on reading the motion tabled, the first thing I did was to contact Ms Josepha Madigan, who I believe has written the only book to be written in Ireland on appropriate dispute resolution. While Ms Madigan is a family lawyer, she also is a practising mediator and a former council member of the Mediators Institute of Ireland. Consequently, for my contribution today, I have gleaned knowledge and have taken quite a lot of information from her because she is an expert in this area. I should also note she is a Fine Gael councillor, so one side of the House will be happy and I will not comment on the other.

Martin Conway (Fine Gael)
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Hear, hear. She is a very good one.

Jillian van Turnhout (Independent)
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She has an outstanding record in this area.

The Law Reform Commission report from 2010 contained 108 recommendations. I do not plan to read them all out but when one goes through the recommendations, what is interesting is that many of them have been done or are near completion because the profession itself can develop them and is doing the work in these areas. In this context, for example, it was recommended that the Courts Service should commission or prepare comprehensive information booklets on the process of mediation, that the form of regulation for mediators should continue to be self-regulation through a mediation professional body and that there be a code of conduct for mediators and that mediators must receive training and accreditation. However, other areas called for by the Law Reform Commission, some of which are really important, are all dependent on the Minister and the Bill being transposed into legislation. For instance, it would place on a statutory footing for mediation both domestic and cross-border issues. Moreover, as the Law Reform Commission has recommended, there is a need for a distinct form of privilege to be set for mediation and Members must ensure this happens. In addition, the panel of accredited mediators should be extended to the legal aid board because one should avoid the scenario whereby one can get mediation if one can afford it but not otherwise.

The message that mediation can save the Exchequer substantial moneys is demonstrated in the recent EU report, Rebooting the Mediation Directive, which highlights that if a 9% success rate is achieved in civil and commercial medication, it creates savings for the state. In Ireland, the Family Mediation Service has a 43% success rate and, in a recent survey, members of the Mediators' Institute of Ireland said they had a 56% success rate at the Equality Tribunal. Mediation works, particularly on a human level. I would like there to be an opportunity for all disputes to go to mediation and we should ensure a mediation information meeting is compulsory for all parties to attend prior to the issuing of court proceedings. Participation in mediation is voluntary and can never be mandated but an information meeting should be compulsory. Perhaps we watch too many American television programmes and we have only one picture of mediation but we need to understand how well mediation works and how important it is.

The book published by Ms Josepha Madigan clearly outlines family law. In such cases, we think of a parting husband and wife, their concerns for the children, maintenance and the family home. However, the type of cases coming before the courts is ever expanding. They involve unmarried parents, cohabitees, same-sex couples, grandparents with rights of access and donors of sperms or eggs for IVF treatment. In addition, the issues to be resolved are much more complex. Some reflect the current state of the economy such as applications to relocate. Another complicating factor is the increase in family cases involving one or more parties from outside the State, in which need cultural aspects need to be understood and addressed. Mediation can very much help in this regard.

A common factor in almost every family law case, however, according to Ms Madigan, is the emotional aspects such as hurt, disappointment, lack of trust and often anger. In this context, the adversarial system in our courts is a blunt instrument, limiting and often preventing the opportunity for positive communication between the parties. As a result, family law cases that go to court can cause further damage to the relationship between the parties and their children and such cases can be frustrating, stressful or both for all involved, including the lawyers and judges. Countries with a similar adversarial system to Ireland such as England, Australia, New Zealand and Canada have introduced non-adversarial mechanisms such as mediation as an integral part of family law proceedings. We need to catch up in this area. Legislative changes have been made here but what is contained in the heads of the proposed Bill needs to be implemented. All too often in family law cases, the voice of the child is not heard and his or her best interests are not paramount.

I hope the Minister of State has good news for the House. I am very supportive of the motion.

David Cullinane (Sinn Fein)
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Hear, hear.

David Cullinane (Sinn Fein)
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I move amendment No. 1:

In the first paragraph, to delete “acknowledges the Government's commitment”.

Michael Mullins (Fine Gael)
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I had not planned on speaking either, but I still welcome the opportunity to support the motion. I compliment my colleague, Senator Conway, on tabling the motion. It should help to give a sense of urgency in order that the legislation can be introduced more quickly. No doubt the Minister of State will take on board the calls that have been made tonight for him to urge the Cabinet to bring the Bill forward as a matter of urgency.

I like the concept of mediation. The general objective of the mediation Bill is to promote mediation as a viable, effective and efficient alternative to court proceedings. Like other speakers, I was really delighted to hear, in the very high-profile case involving the golfer Rory McIlroy and a man with Galway connections in Horizon Sports Management-----

Paddy Burke (Fine Gael)
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Senator Mullins well knows we should refrain from naming people on the record of the House who are not here to defend themselves.

Michael Mullins (Fine Gael)
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-----that they used mediation to resolve their differences. Mediation is a flexible process that is conducted confidentially, in which a third party assists the parties to a dispute in working towards a negotiated settlement. As Senator Jim D’Arcy said, the outcome, hopefully, is much more amicable and the parties can build on the goodwill that emerges through the successful resolution of disputes through mediation.

Another very significant issue in the achievement of a mutually agreeable resolution through mediation is that it can yield significant cost savings compared to litigation and arbitration, which might otherwise have been pursued. We all know the huge cost of going to court. Very often, parties who end up in court discover, much to their cost, that the vast bulk of what they were arguing about goes to the legal profession in trying to resolve matters, whereas if they had got around a table with a third party, mediation could have resulted in a much more satisfactory outcome. The cost implications and the resolution of contentious matters that can be achieved through the mediation process make it worthwhile.

The mediation process improves communications, narrows outstanding issues, defuses emotions and defines areas of agreement. Sometimes it can play a very important role even if the issue ends up in court. The mediation process can help to narrow the difference between parties, and even when it takes court involvement to achieve a final outcome, the mediation process is recognised as making a very valuable contribution towards the ultimate resolution of issues.

Although he has endured much criticism in his time, it would be appropriate to pay tribute to the former Minister for Justice and Equality, Deputy Shatter, for the publication of the mediation Bill in draft form, and to recognise the fine work done by the Joint Committee on Justice, Defence and Equality on the issue. Like other speakers, I urge the Minister of State to ensure there is urgency in the introduction of the legislation, as it has a major contribution to make towards a much better understanding between people in dispute.

The regulation issue, to which reference has been made is important. It is important that there is a proper register to ensure that those operating as mediators have the proper skills and training to deliver proper and satisfactory outcomes to the clients to whom they provide a service. All in all, what is proposed is very positive. I again commend Senator Conway on helping to table the motion. I hope that before the end of this year we will see significant developments in the legislative process.

Trevor Ó Clochartaigh (Sinn Fein)
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Cuirim céad fáilte roimh an Aire Stáit agus tá an-áthas orm a bheith in ann labhairt ar an rún seo anocht. Mar a deir mo chomhghleacaí, an Seanadóir Cullinane, i bprionsabal aontaíonn Sinn Féin leis na smaointí atá á chur chinn. Tréaslaím le mo chomhghleacaí as Contae an Chláir, an Seanadóir Conway, atá tar éis an rúin a chur chun cinn, ach ní aontaíonn muid go bhfuil brú sách láidir á chur ag an Rialtas maidir leis an gceist seo.

There has been much talk and speculation in the lifetime of the Government about the long-awaited Legal Services Regulation Bill.

It seeks to provide for reform of the law relating to the charging of costs by legal practitioners and the system of the assessment of costs relating to the provision of legal services.

We first got sight of the Legal Services Regulation Bill on 12 October 2011. It was debated on Second Stage two months later, and yet here we are, in February 2015, and it has still to complete Committee Stage. However, the mediation Bill, in the context of cost issues and resolving matters, could be as important for citizens as this Bill. So much of what happens in family law and civil law could be resolved at an early stage with a robust mediation process, and yet it is also stuck in the system.

The draft general scheme of the mediation Bill was published in 2012. The Government listed the mediation Bill for publication in late 2013. In April 2013, the former Minister, Deputy Shatter, stated that the Bill would be published in early 2014, and we are still waiting. We are expected to acknowledge the Government's commitment to further develop and expand mediation services throughout the State. We cannot do that and that is why we have tabled the amendment. I second the amendment that has been put forward. I am sure the Minister of State will understand that I and my party find it difficult to acknowledge this and, therefore, he will understand my amendment suggesting the deletion of this section.

The Government should show its commitment to developing and expanding mediation services throughout the State by bringing this Bill through in the lifetime of this Government, which we all know is running out. During a contribution in the Dáil, the former Minister, Deputy Shatter, pointed to the major benefits that would be delivered to the court system and society at large with the enactment of the Bill through increased use of mediation to resolve disputes. We call on his successor, Deputy Fitzgerald, to continue with the work started and ensure the passage of this Bill as a matter of urgency.

Mr. Tom Ward, chief clerk of the Dublin Circuit and District Courts, reported that a pilot mediation programme that ended on 31 August 2013 resulted in 831 concluded agreements, which resulted in saving an estimated 11.33% of court sitting time and annual savings of €119,476 in Courts Service costs plus €225,164 in Legal Aid Board costs. The money saved via this process is glaringly evident. Why are we not seizing on the opportunity both to increase access to justice for all and to save money? The delay is baffling. We urgently need enactment of the mediation Bill to make these cost savings widely available as well as delivering faster and better quality outcomes for those involved in disputes.

Access to justice in its widest sense of the effective resolution of disputes, whether through court-based litigation or alternative dispute resolution processes, is an essential aspect of ensuring the realisation of the fundamental rights recognised and given protection by the Constitution. Mediation procedures increase access to justice for all, but particularly for some of the most vulnerable in society, and this is more important than ever. In promoting access to justice, a modern civil justice system should offer a variety of approaches and options to dispute resolution, not only costly solutions. We need to ensure that we are offering a wider range of options to suit all.

I and Sinn Féin are supporting this motion, but I want to be clear in saying that the Government's actions on this so far are not good enough. I urge the Government to step up and prove its commitment to mediation services by bringing this Bill through both Houses of the Oireachtas as a matter of urgency. I note that Senators Conway, Bacik and others have also called for this. It would be a shameful indictment of the Government if the Bill fails to go through in its lifetime. It is now time for action, not more talk. Is é sin an fáth go bhfuilimid ag cur chun cinn na leasuithe atá molta againn. Ní féidir linn glacadh leis go bhfuil an Rialtas i ndáiríre faoin mBille seo muna bhfuil sé in ann léiriú dúinn anocht go bhfuil sé ag iarraidh an Bille a bhrú tríd chomh tapaidh agus is féidir. Táimid ag iarraidh an daingniú agus an tiomáint sin a fheiceáil ón Rialtas anocht. Is ar an mbonn sin a bhfuilimid tar éis na leasuithe a chur chun cinn. Feicfimid cén freagra a bheidh ag an Aire chun go bhfeicfimid an mbeimid ag brú na leasuithe.

Aodhán Ó Ríordáin (Dublin North Central, Labour)
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Unfortunately, the Minister for Justice and Equality, Deputy Frances Fitzgerald, is unable to be here this evening due to another commitment. I am pleased, therefore, to have this opportunity to address on her behalf the important subject of mediation. I thank the Senators for providing me with the opportunity to address this important issue.

As Senators will be aware, the programme for Government for National Recovery 2011 - 2016 contains the following commitment: "We will encourage and facilitate use of mediation to resolve commercial, civil and family disputes in order to speed up resolution of disputes, reduce legal costs and ameliorate the stress of contested court proceedings." The general position is that the Minister for Justice and Equality obtained Government approval for publication of the general scheme of the proposed mediation Bill in March 2012. The contents of the general scheme of the Bill were subsequently considered by the Oireachtas Joint Committee on Justice, Defence and Equality. That committee's subsequent report identified a number of specific issues meriting further examination in the context of the drafting of the Bill. The current position is that the Bill is being drafted in the Office of the Parliamentary Counsel, OPC. Senators will appreciate that the Government has a demanding schedule of urgent Bills which are currently being drafted in the OPC. For that reason, it is not possible to give a specific date for publication of the Bill at this stage. However, the Minister has asked me to say that she intends to proceed quickly with enactment of the legislation following publication later this year.

During this short intervention, I want to focus on certain key provisions of the Bill. The Department has met Ms Josepha Madigan on the Bill. The Bill, when published, will take account of her valuable insights. One of the main aspects of the Bill is the introduction of a key provision which provides for the introduction of an obligation on solicitors to advise their clients to consider utilising mediation as an alternative to court proceedings for the resolution of disputes. Under the section, it is proposed that a solicitor must advise his or her client to consider using mediation as an alternative means of resolving the dispute; provide the client with information concerning mediation services, including the names and addresses of persons or organisations qualified to provide such services; and provide an estimate of the legal costs likely to arise in the event of court proceedings, together with an estimate of legal costs if the client is unsuccessful in those proceedings. This provision further requires that any person commencing civil proceedings must provide the court with a written statement confirming that his or her solicitor advised on the possible use of mediation as an alternative to the court proceedings for settling the dispute. I should add that the Bill places a similar obligation on a barrister with regard to the provision of information on mediation.

The Bill further provides that mediation may be embarked upon by parties on their own initiative at any stage prior to, or after the commencement of, court proceedings. The section also contains a provision which is designed to reinforce the fundamental principle that the outcome of a mediation process shall be determined by the parties themselves. It also underlines the principle that participation in mediation is voluntary, and any party involved in a mediation process may withdraw from it at any time and without explanation.

The Bill also contains important provisions concerning the role of the mediator. It requires a mediator to prepare a written agreement on the terms of the mediation process; places an obligation on the mediator to establish whether he or she has, or may have, any existing or potential conflicts of interest in the case; and sets out the information which must be given by the mediator to the parties before the commencement of the process, and which includes information concerning the voluntary nature of the process, the manner in which the mediation process can be concluded and confirmation that the outcome of the process will be determined by the parties themselves.

The Minister believes that parties to mediation should be informed as far as possible in making decisions regarding a choice of mediator. For that reason, the Bill contains a requirement that a mediator must, before the commencement of the mediation process, provide details to all parties of his or her training and experience in mediation. This is in line with the practice already set out in various voluntary codes of practice for mediators. A mediator must also, if requested, provide a party with information regarding any specialist training he or she might have which would be relevant to the matter at hand as well as details of any continuing professional development activities which he or she has undertaken.

Confidentiality is a basic and fundamental aspect of any mediation process. Therefore, the Bill will provide that confidentiality should generally apply to communications made during mediation processes. However, in certain circumstances, the interests of justice would not be served by confidentiality and the Bill therefore provides that it will not apply where disclosure of a mediation communication is necessary to implement any agreement arising from the mediation; where disclosure is necessary to prevent physical or psychological injury to a party; where disclosure is required by law; where a mediation communication is used to commit or conceal a crime, or to threaten a party to the mediation process; and where the communication is needed to prove or disprove a civil claim relating to alleged negligence or misconduct of a mediator during the mediation.

The Bill also provides that the parties alone have the power to determine whether an agreement has been reached and the manner in which it becomes enforceable. The section further provides that a court may, on the application of the parties to any written agreement reached at mediation, enforce the agreement.

In addition, the Bill provides that a court may, either on the application of any party involved in proceedings or of its own motion, where it considers it appropriate having regard to the circumstances of the case, invite the parties to consider using mediation as an alternative to the proceedings. The Bill also provides that where a court has invited parties to consider using mediation, it may, in awarding costs in the proceedings, have regard to any unreasonable refusal by a party to consider using mediation where such a process had, in the court's opinion, a reasonable prospect of success.

Following publication of the general scheme, the Joint Committee on Justice, Defence and Equality held two days of oral hearings and, subsequently, in June 2012, published a report on the general scheme of the Bill. While the committee's report did not make recommendations, it presented some observations on particular issues which arose both from the submissions received by the committee and during the oral hearings. A key issue identified by the committee was the possible establishment of a regulatory structure for the mediation sector.

The Minister has asked me to inform the House that, following receipt of the report of the joint committee, her Department held consultations with several mediation bodies and individual mediators on the issues identified in the report, in particular the possible establishment of a regulatory structure. The position regarding the establishment of such a regulatory structure is that the Minister is conscious that many qualified mediators are drawn from professions which are already subject to strict regulatory oversight. They include members of the legal profession and professionals from fields as diverse as accountancy, engineering and social work. Any new regulatory structures for mediators must take due account, therefore, of the existence of these regulatory regimes and ensure that any further regulatory burdens and compliance costs are both necessary and proportionate.

One possible way forward would be to give statutory recognition to a representative body or council established by the mediation sector itself. Such a body could be entrusted with functions such as promoting public awareness of and providing information to the public about the availability and operation of mediation services across the State; maintaining and developing standards for the provision of mediation services; drawing up and overseeing the operation and application of codes of practice for mediators; establishing and maintaining a register of mediators who have signed up to approved codes of practice; developing and approving continuing professional development activities for mediators; and advising on the establishment and operation of mediation information sessions in family law cases.

The discussions which have taken place with mediation bodies have focused on the establishment of such a structure. The intention is that it would be self-financing and would consist of representatives drawn from across the mediation sector.

The Minister has asked me to refer to another important provision which will be included in the forthcoming Bill. The Government believes that mediation has a particularly important role to play as an alternative to adversarial family law proceedings. Mediation can provide a less stressful and adversarial process for the resolution of cases of family breakdown and the related issues of custody and access to children. The Bill will contain a provision, therefore, which will require parties embarking on such proceedings to attend mediation information sessions. Such a requirement is in line with the recommendations of the Law Reform Commission in its report on mediation and conciliation. Discussions have taken place with the Legal Aid Board on this issue and the board has indicated that it would be willing to assist in the provision of mandatory information sessions in family law cases involving children.

I should also point out that there is an increasing international trend towards the use of mediation as a tool for the resolution of civil disputes. For example, a mediation directive has been adopted at European Union level and has been given effect throughout the EU since 2011. The directive has been given effect here in the European Communities (Mediation) Regulations 2011.

I thank Senators for tabling this motion and for providing the House with an opportunity to discuss this important subject. I appreciate that Senators are anxious for this Bill be brought before the Seanad first and I will communicate their desire directly to the Minister herself.

Diarmuid Wilson (Fianna Fail)
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I welcome the Minister of State to the House. I commend Senator Conway on tabling this Private Members' motion. I will be brief because most of the areas I wanted to cover have been dealt with. I second Senator Ó Clochartaigh's amendment.

The Minister of State said the Bill is being drafted in the Office of the Parliamentary Counsel. We must appreciate the fact that the Government has a number of very important Bills before it, so this legislation must take its place in the queue. As Senator O'Donovan pointed out, the pilot mediation programme conducted in the Dublin District and Circuit Courts in 2013 resulted in 831 concluded agreements. This resulted in saving an estimated 12% of court sitting time and an annual saving of more than €120,000 in Courts Service costs and €225,000 in Legal Aid Board costs.

This is important legislation for ordinary people, so it should be enacted as quickly as possible. Just today in the High Court, mediation worked and saved enormous costs in the Rory McIlroy case. It is therefore something worth examining. This Bill will not deal with celebrities but with ordinary citizens. In his comprehensive contribution, the Minister of State said that barristers and solicitors will be obliged to inform their clients about mediation. That matter should also be examined.

I will not take up any more time as most of the areas I wished to raise have been covered and there is no point in repeating them.

Marie Moloney (Labour)
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I thank the Minister of State for attending the House. I commend Senator Conway on bringing forward this motion. I will not pretend to be an expert in this area and I bow to the experience of my colleagues who have a far more in-depth knowledge about it. I could write what I know about law on the back of a postage stamp. Having read the motion and undertaken some research on it, however, I have found that there is currently no regulation of mediation services. That is why the necessary legislation would be most welcome.

Senator Conway's motion urges the Government to publish the relevant Bill. I support his call, while taking into account that pre-legislative scrutiny took place as far back as 2012. Let us not ignore that having a mediator and mediation can be effective. As part of civil proceedings, mediation could save an individual requiring legal intervention from costly legal cases, including family cases involving divorce, child contact in residence, as well as debt, housing, immigration, welfare and employment.

It is a constitutional right to have legal representation, which the State is obliged to provide to those who do not have the means to afford a solicitor. However, to acquire free legal aid services, the Legal Aid Board has laid out financial eligibility requirements. These deal with the uncertainty of acquiring legal services needed by a client. The Law Reform Commission recommended that solicitors should advise their clients to seek a mediator as an alternative to litigation.

In May 2014, Ms Karen Irwin said that not all solicitors necessarily know about or practise mediation. What they are giving is a definition as opposed to listening to what the case is about and deciding whether it is suitable for mediation, how long it might take and how much it might cost. One is really asking somebody to give an opinion on something about which they may know nothing. It has proven to be entirely unsuccessful in cases involving separated couples and this is why the mandatory information provision was introduced. Without it, the procedure did not work.

As we all know, divorce is one of the commonest cases in the courts. It is acknowledged that there is no such thing as a perfect family. Families comprise ordinary individuals, including husbands, wives, brothers, sisters and other relatives. They go through challenges and trials. Relationships break down and parents may separate or divorce. Parents and children may have disagreements, while siblings may dispute over financial and property matters. Families in conflict seek resolution to complex problems they may have been facing and struggling with for years. Mediation grants valuable support and empowers families in conflict, especially those with little money, to make their own decisions and reach balanced agreements of benefit to both parties involved in the legal spat. In time, it can mend the emotional issues brought forth by discord.

We are all well aware of the importance and impact of mediation in industrial disputes. Without the Labour Relations Commission and the services of a rights commissioner, many a dispute would have dragged on when it seemed there was an impasse. Indeed, one of the most highlighted impasses in recent years concerned the Haddington Road agreement. Without the intervention and services of the chief commissioner of the Labour Relations Commission, Mr. Kieran Mulvey, it may not have been possible to get that agreement over the line.

In many cases, mediation can be a quicker and cheaper option for people.

However, it is vital that mediators are properly trained as people are entitled to the best service possible and without regulation, this may not always be the case. In most cases of family law, the issues can be very sensitive, traumatic and have a major effect on people's lives. It is imperative that the mediators know their stuff and give the best service possible while ensuring fairness and equality are paramount.

People who use the services of a mediator must have recourse to appeal or complaint if they feel they have not been represented properly or have been unfairly treated due to the fact that a mediator was not fully trained. Without regulation there is no course for complaint. I ask that the Minister of State bring forward this legislation without further delay. There is not much time left for the Government and we would like to get this through.

Martin Conway (Fine Gael)
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I thank the nine speakers. The Seanad comprises 60 Senators so approximately 50 did not seem to have much of an interest.

Trevor Ó Clochartaigh (Sinn Fein)
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They might be involved in mediation.

Martin Conway (Fine Gael)
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I agree that when the Bill is published, if it begins life in the Seanad, it will probably be a better Bill. There is an interest in conflict resolution and identifying solutions in this House. As I indicated in my opening remarks, there have been motions, some sponsored by me, on restorative justice and community courts. We need to consider an alternative to the traditional model of justice. We have set the standard with regard to arbitration and there is no reason we cannot very quickly set the standard for mediation, particularly the education, training and registration elements. We should be able to stand over the quality of mediators and the complaints procedure. There could be an ombudsman to govern the area of conciliation, mediation and arbitration. That would ensure that the quality and integrity of the systems are protected.

I agree with much of what was in the general scheme of the Bill published in 2012. The Oireachtas justice committee had two days of hearings and it did incredible work in engaging stakeholders. To be fair, most people involved with mediation want to see it regulated and a proper structure put in place. That protects the integrity of their profession as well. There is not a pile of difference between Senator Ó Clochartaigh's amendments and my perspective on the issue. It would be a serious error of judgment, betrayal or whatever term one might use if this is not enacted in the life of this Government. There is only a year left and it will happen pretty quickly, as it needs to. This was a commitment in the programme for Government, and if it does not happen it will amount to a breach of faith in the programme between the two parties. I am sure my colleagues in the Labour Party will not allow the Minister for Justice and Equality away with not publishing this legislation. This must happen for the purpose of credibility if nothing else.

I commend Councillor Josepha Madigan, a Fine Gael representative who is rightly considered an expert in this area. She provided my office with very useful information and I have no doubt that she has already engaged the Department and will engage Members of the House if they wish to avail of her expertise in the matter. I acknowledge the work of my own personal assistant and legal adviser, Ms Karen Dempsey, who has put much work into this motion to get the tone right and ensure it could be a sign to the Government that this has gone on long enough and we will use Private Members' time in the Seanad to debate the issue. There are thousands of people out there who could save vast amounts of money if mediation legislation could be adopted. Of the people who engage in mediation, 80% reach a successful outcome; the funny element is that the parties tend to speak to each other afterwards. When parties go to court, divisions are created that are never healed.

I thank all Members for the debate, which has been very worthwhile. We are virtually unanimous. The Minister of State, the Minister and the Department of Justice and Equality have a responsibility to the people of Ireland to get this moving.

Trevor Ó Clochartaigh (Sinn Fein)
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I move amendment No. 2:

In the third paragraph, after "mediation" to insert "thereby increasing access to justice for all".

Diarmuid Wilson (Fianna Fail)
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I second the amendment.

Trevor Ó Clochartaigh (Sinn Fein)
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I move amendment No. 3:

In the last paragraph to insert "immediately" after the words "to commit".

Diarmuid Wilson (Fianna Fail)
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I second the amendment.

Paddy Burke (Fine Gael)
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When is it proposed to sit again?

Martin Conway (Fine Gael)
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At 10.30 a.m. maidin amárach.