With the publication of the Mediation Bill, 2017, Ireland moves a step closer to having a Mediation Act, pulling mediation out of the shadows and into the mainstream.
The main provisions of the Bill (which can be read HERE) will be welcomed by both mediators and other interested parties and much of the content will have been influenced by the professional body for mediators – the Mediators Institute of Ireland.
It maintains most of the accepted principles of mediation, including that it is voluntary, confidential and that the parties decide on the outcome.
While many will be pleased that the confidential nature of mediation will at last be enshrined in a legal act, there are a few exceptions which could leave some room for doubt. These exceptions include that confidentiality is not available where it is necessary to prevent physical or psychological injury, or where it is required by law.
The Bill also mentions strongly that the parties decide on the outcome, though Section 8(4) may give pause for thought to mediators. This states that: “the mediator may at the request of all the parties, make proposals to resolve the dispute, but it shall be for the parties to determine whether to accept such proposals.” This may present difficulties, as trainers will be aware how challenging it can be to train new mediators not to ‘problem solve’ but to let the parties come up with the answers. This clause may open the floodgates for mediators to ‘problem solve’, and could lead to discord between ‘the law’ and those advocating a more facilitative style of mediation.
The Bill introduces an ‘agreement to mediate’ at the start of the process and a ‘mediator’s report to the court’ at the end of the process. The former largely mirrors current mediator practice, but the latter could again present complications. This is because the mediator is required, where there is no agreement reached, to include in the report his/her opinion as to whether the parties engaged fully in mediation. For an impartial and non-judgemental mediator this may be a step too far and it is likely that the opinion offered will more often be a ‘yes’. It would also take a brave mediator to offer a ‘no’ opinion in the face of challenge by the parties’ legal representatives. Neither is it clear what a judge is expected to do when a report notes non-engagement.
One more interesting innovation contained in the Bill is the establishment of a Mediation Council. This is to be made up of five members representing the interests of mediators and six members representing the public interest. It will be invested with considerable powers including the provision of information, maintenance of standards including training, codes of practice, and maintaining a register of mediators.
While not every type of dispute is included under the Bill’s remit, it is a huge step forward in terms of placing mediation on a statutory basis. With that will come greater acceptance and more awareness which should transfer to other areas outside of the courts services. It is a major development for dispute resolution in Ireland and the UK should take a great interest in the debate as the Bill becomes law in the near future.
UK and Irish accredited workplace mediator, investigator, trainer and coach with particular expertise in the field of neutral evaluation. Brendan undertakes work in Ireland and in all parts of the UK including Northern Ireland.