Senator Mullen welcomes progress on Mediation Bill 2017

Senator Mullen welcomed the Government’s long-awaited Mediation Bill which came before the Seanad recently. Hopefully it will contribute to fewer expensive days in court for parties in dispute, and allow for more effective resolution of conflicts. Comments in the Seanad follow:

Ba bhreá liom fáilte a chur roimh an Aire. I wish him the very best in his new brief. Mediation is not a new concept. It has been in operation across various sectors in the State, as has been said, and it is an appropriate mechanism for various parties to arrange mutually acceptable solutions in different types of rows or disputes.

This Bill is very welcome. It is a long time in the works, as has been said. We have accorded ourselves the reputation of being a litigious nation. I do not have the evidence to prove it but it seems we are quick to acquire the services of solicitors when seeking to rectify wrongs or perceived wrongs in civil matters. I hope this Bill can help to remove some of the impulsiveness and drama witnessed during some civil proceedings and will allow for more measured ways of addressing disputes from the start before they escalate into intractable Bleak House-type situations of the kind described by Senator Burke, lasting up to 16 years. The resolving or circumnavigation of any intractable, stressful, financially crippling legal issues through appropriate recourse to mediation is very welcome.

By directing lawyers to advise their clients to consider mediation first as a method of resolving disputes, I hope the current overwhelming civil case load in the court system can be reduced, particularly as mediation becomes increasingly regarded as an acceptable and established way of resolving conflict among potential litigants, confidentially in many cases. I hope litigation will become more expedient as a route for people and that it will prove to be cost-effective in reality. Much time and energy are wasted in court at present on issues that could better be resolved and disposed of in mediation.

The Bill will mean a solicitor — or possibly a barrister in the future – must make a statutory declaration that he or she advised clients to consider mediation as a means of dealing with a dispute that is the subject of proposed proceedings. Solicitors must also provide their client with information on mediation services. This is a relatively innovative addition to the current civil legal framework.

I hope the Bill will have a positive effect on the way people communicate in personal arguments among themselves. I hope it will create in society generally a culture of compromise, in the good sense of the word, that

has been absent until now. It must be stated, however, that while the concept of mediation is great in theory, its applicability will vary in practice from case to case. Many aggrieved would-be litigants will still want their day in court and to have their costs fully paid.

This relatively short Bill has 23 sections and I believe it is flexible and fair overall. Section 6 provides that participation in mediation will be voluntary at all times, and allows for the withdrawal from the process by the parties involved, and also by the mediator. It also guarantees that independent legal advice can be availed of during mediation.

I wonder whether section 7(b), pertaining to the agreement to mediate, is too general or whether it could do with some additional wording. It states that prior to the commencement of mediation, a document should be signed by the parties and the mediator regarding the terms of reference for the mediation. The section uses the wording “manner in which the fees and costs of the mediation will be paid”. Has the existing wording the potential to be problematic? Will people who have never engaged in a mediation process before be nervous, or perhaps unsure of what to expect, and therefore unsure as to what a justifiable amount to be paid would be?

I remember when, as a barrister starting off, I was invited to conduct a mediation. It never came to pass. I went to a senior counsel in the Law Library, a person known for his affability and experience in the area of mediation and asked him how much I should charge for my role. He sat down, looked at me judiciously and asked me what I thought myself. I quickly realised he did not want to give me an answer of his own making and that he wanted to avoid the question. Very often, the question of costs is one that people want to avoid in advance. I wonder whether it should be the case that the required document would provide for the manner in which the fees and costs of the mediation would be paid, to whom, by whom and by when. Would this add more certainty to stipulations regarding payments for mediation which themselves could become a very contentious issue?

I am conscious I am out of time. I do not want to hold up this Bill. It is very welcome. I commend the Minister on brining it before the House. I hope it will lead to serving the public well, doing people good and helping them to avoid unnecessarily costly and stressful legal proceedings by providing ever more for a better way of dealing with their disputes.

Full debate available here.