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Mediation Bill 2017

Dáil Éireann – Second Stage

Speech by Frances Fitzgerald, T.D.

Tánaiste and Minister for Justice and Equality

2nd March, 2017

Ceann Comhairle

I am very pleased to have this opportunity to introduce the Mediation Bill 2017 and I look forward to our discussion of its provisions here today, and to support from all sides of the House for its early enactment.

The general objective of the Bill 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 which often accompanies court proceedings. The Bill also forms part, therefore, 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 ADR mechanisms and recommended the enactment of legislation to underpin such processes. This Bill incorporates many of the Commission’s recommendations in relation to mediation. Meanwhile, revised rules of the Superior Courts, which facilitate and encourage the referral of disputes to a process of mediation or conciliation, have come into operation.

The General Scheme of the Bill was approved by Government in March 2012 and it was subsequently discussed by the Joint Committee on Justice, Defence and Equality.  Following receipt of the Joint Committee’s Report, further consultation was undertaken by my Department with various bodies in the mediation sector and the results of these discussions have been taken on board in the published Bill.

Before turning to the main provisions of the Bill, I would like to make a number of general points.

Firstly, it should be noted that “mediation” is defined in the Bill as a facilitative 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 want to emphasise use of the word “voluntary” in this context; mediation is, and must remain, a voluntary process.

Moreover, while this Bill seeks to promote mediation as an effective, viable means of resolving disputes, it has to be recognised that it would not be an appropriate mechanism for resolving certain types of disputes, such as claims against the State for alleged infringements of fundamental rights or proceedings concerning children under the Child Care Acts. These and other exceptions are outlined in section 3.   

Secondly, Part 3 of the Bill contains two key provisions which impose obligations on solicitors and barristers in relation to mediation. Put simply, the Bill requires solicitors to advice their clients to consider the use of mediation, and to provide them with information on available mediation services, before embarking on court proceedings. The Bill makes a similar provision in relation to barristers which will apply if and when, in the future, barristers are permitted to issue proceedings directly on behalf of clients. 

In order to ensure that this key requirement is given effect in practice, the Bill requires that solicitors make a statutory declaration that the obligations placed on them by this legislation is discharged.

Finally, I want briefly to refer to section 12 of the Bill which 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 Joint Committee regarding regulation of the mediation sector.

The mediation sector is made up of a diverse range of bodies; for example, seven such bodies attended the public hearings which were held by the Joint Committee, while submissions were received from a number of other interested parties. For this reason, the Bill does not set out to impose a rigid regulatory structure on the sector. It does, however, provide for the possible future establishment of a body to be known as the Mediation Council of Ireland under certain conditions.

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 want to turn now to the main provisions of the Bill.

Part 1 of the Bill contains preliminary and general provisions.

Section 1 makes provision for the entry into operation of the Bill’s provisions.  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 legislation will not apply to certain types of proceedings, e.g. disputes arising within an employment context referred to statutory dispute-resolution processes such as those provided by the Workplace Relations Commission; 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 a mediation or other dispute resolution process in any other statute or in any contract or agreement.  Section 4 (Regulations) and section 5 (Expenses) are standard provisions in legislation of this kind.

Part 2 contains general provisions in relation to mediation.

Section 6 deals with the general conditions under which mediation takes place.  It makes it clear that participation in mediation must be voluntary and that is for the parties themselves to determine the outcome of the mediation.

Section 7 provides for an Agreement to Mediate to be signed by mediator and all parties to the mediation.  The Agreement to Mediate governs the manner in which the mediation is to take place.

Section 8 outlines the role of the mediator in a mediation. It specifies the actions the mediator must take prior to the commencement of a mediation and those he or she must take during a mediation.  Subsection (4) derives from a recommendation of the LRC 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 a code of practices setting standards in relation to the practice of mediator may be prepared and published by the Minister or, alternatively, if the code has been drawn up by some other body, be approved of and published by the Minister.  Subsections (2) to (7) refer to the aspects of mediation to be included in a code of practice and the publication, amendment, withdrawal or revocation of a code of practice.

Section 10 deals with the crucial issue of confidentiality in mediation.  The section makes it clear that all communications by the mediator with the parties and all notes and records relating to a mediation 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 subsection (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 to decide on the manner in which the mediation settlement 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 the mediator.

As I mentioned earlier, the Bill contains a new provision dealing with possible regulation of the mediation sector which derives from discussions during pre-legislative scrutiny of the General Scheme.  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 it would be a self-financing Council, representative of both mediation interests and the public interest.

Under the section the Minister could, at some future date, by order declare a body to be the “Mediation Council of Ireland”.   The section also provides that there can only be one “Mediation Council” in existence at one time and the Council must be sufficiently representative of mediation interests and must also meet the minimum requirements provided for in the Schedule to the Act.  Provision is also made for revocation of an Order by the Minister.

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 which imposes obligations on a practising solicitor regarding mediation. It 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 document, the court must adjourn the proceedings to enable the solicitor to comply with the section.

Section 15 outlines the obligations on practising barristers with regard to mediation. The provision will apply only where 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 on barristers 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 which 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 the proceedings.

Section 17 deals with reports of the mediator to the court in such cases. It provides that where, following an invitation by the court under section 16, the parties engage in mediation then the mediator will report to the court on the outcome of the mediation.

Section 18 concerns the effect of mediation on limitation and prescription periods. It makes provision for disregarding time taken for mediation under the Statutes of Limitations.

Section 19 provides for the adjournment of court proceedings to take account of mediation and specifies the information which the court must take into account when considering an application to adjourn proceedings. This provision is in addition to any existing power of the courts in relation to adjournments.

Section 20 deals with 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 paid. Such fees and costs must be reasonable and proportionate to the importance and complexity of the issues at stake and the amount of work undertaken by the mediator.

Section 21 deals with the factors to be considered by a court in awarding costs. It outlines the factors concerning mediation which a court can take into account when assessing costs of proceedings.

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 could be explained.

 

Section 23 seeks to give effect to this recommendation. It provides that the Minister may, for the purpose of 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 is, for example, 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).   Subsection (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 to the Bill outlines the minimum requirements in relation to a Mediation Council under section 12 of the Bill. In particular, it specifies the general functions of the Council and its membership.  The main functions of the Council, if established, would be to promote public awareness of mediation; develop standards in the provision of mediation (including continuous professional development); prepare codes of practices 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 which, 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.

Conclusion

Ceann Comhairle, this Bill is intended to promote mediation as a viable, effective and efficient alternative to court proceedings.  I believe that enactment of the Bill will:

 

I commend the Bill to the House.