Minister for Justice Charlie Flanagan has stressed that mediation as an alternative to the court proceedings will be a voluntary process.
Mr Flanagan was speaking during the Seanad debate on the Mediation Bill after concerns were raised by Women’s Aid that women who were subjected to domestic violence may pressurised to take part in mediation proceedings with their ex-partners if the Bill is passed.
The legislation aims 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”, the Minister said.
A number of Senators voiced concerns about the pressures on victims of domestic violence, but Mr Flanagan said “I emphasise the word ‘voluntary’ in this context: mediation is and under the legislation will remain a voluntary process”.
He added that the legislation “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”.
The Minister said he hoped that “over next couple of days opportunity to deal with these issues in more detail”.
The Bill has already been passed by the Dáil.
Independent Senator Lynn Ruane acknowledged the process was voluntary but she said that in family law cases where domestic violence had occurred "but charges have not been filed, we are potentially allowing a situation where women will engage with former abusers in these situation and the only safeguard is the woman herself has to put her hand up and say that she doesn't want to do this".
She said “vulnerable women who might be intimidated by prospect of formal court proceedings, may feel that mediation is their only option”.
“We could be forcing her to engage with an abuser and nowhere in the mediation process is there any obligation on any parties to ascertain if domestic violence is a factor.”
She said the mediator should be obliged to at least make inquiries as to whether domestic violence has occurred in the relationship.
Her comments echoed those of Sinn Féin Senator Niall Ó Donnghaile who noted the obligation on mediators to advise clients that mediation is available.
He said it should not be appropriate for a solicitor “to advise his client in cases of custody or access where there is domestic violence”.
Mr Ó Donnghaile said the mediator should at the very least be obliged to make inquiries about whether there has been domestic violence.
And he called for training for barristers, solicitors and mediators to recognise situations of domestic violence
Labour Seanad leader Ivana Bacik highlighted the comments of experts who addressed the justice committee in the pre-legislative scrutiny on the Bill and said that "Ireland should be seen as international centre for mediation in dispute resolution".
She said it could be a huge economic benefit and provide greater access to justice.
But Fine Gael Senator Colm Burke warned that mediation was not a panacea. He said that lawyers did their best to find resolutions to cases.
A practising solicitor, he said he had been involved in an arbitration process and after 30 days “we were still on the first witness with 11 days spent in dispute about whether one or five contracts were involved”.
He said it was extremely important that no loophole was created to allow mediation be used as a delaying process.
