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Baroness Carnegy of Lour: My Lords, it may be helpful if I intervene at this stage to express my gratitude to the noble and learned Lord, Lord McCluskey, for the advice that he offered on this matter in Committee. I am also grateful to my noble and learned friend for his response. I am happy to accept the amendment and hope that other noble Lords will do likewise.

The Earl of Mar and Kellie: My Lords, I have some questions for the noble and learned Lord the Lord Advocate about the amendment. I have read the Official Report of the last stage of our deliberations when I raised the issue of exactly how the Lord President would decide whether an organisation was appropriate to qualify as a mediator. Having read Hansard, I believe that the noble and learned Lord suggested that it was not up to the Lord President to make that decision. I therefore wonder what value the measure has and from where the criteria for approving an organisation will come. Indeed, should we be considering deleting subsections (3) to (5) of Clause 1?

Lord Rodger of Earlsferry: My Lords, with the leave of the House, perhaps I may reply that I made the slightly more specific point that whereas the noble Earl had indicated that he envisaged that the Lord President might have a wide-ranging responsibility for keeping organisations up to standard, so to speak, I did not think that that was the function of the Lord President. In broad terms, the Lord President has to be satisfied that such organisations are responsible and operating properly in the mediation service. He has to be satisfied that their proceedings are suitable and can attract the evidential immunity that is in question. As I said in Committee, the Bill relates entirely to evidential matters, not to wider matters. It is within that general framework that I think that it is important that the Lord President should be involved in this way. It is important that that immunity should arise only for approved organisations.

Lord Macaulay of Bragar: My Lords, before the noble and learned Lord sits down, can he confirm that before making decisions about such organisations, the Lord President will engage in wide consultation?

Lord Rodger of Earlsferry: My Lords, again with the leave of the House, it is not for me to prescribe what the Lord President will do. I am sure that he will be alive to the necessity of ensuring that the organisations that he approves are suitable and that he will take the necessary steps to that end.

On Question, amendment agreed to.

14 Mar 1995 : Column 796

Clause 2 [Exceptions to general rule of inadmissability]:

Baroness Carnegy of Lour moved Amendment No. 2:

Page 2, leave out lines 24 to 26 and insert:
("(a) of information as to any contract entered into during family mediation or of the fact that no contract was entered into during such mediation;").

The noble Baroness said: My Lords, in moving Amendment No. 2, perhaps it will be for the convenience of the House if I were to speak also to Amendment No. 3. I tabled these amendments to address the concerns about the existing text of paragraphs (a) and (b) of Clause 2(1) which were made known to me by both Family Mediation Scotland and Comprehensive Accredited Lawyer Mediators, known respectively as FMS and CALM. Put briefly, they feared that the words,

    "agreement (whether written or oral)",

which appear in Clause 2(1) (a), would allow one party who wished to lead evidence as to what occurred during mediation to aver or claim that there was an oral agreement. That could lead to the other party to the mediation challenging the existence of such an agreement. In an examination of that, the so-called "sealed room" of mediation would be opened without the agreement of all the parties, as is provided for in Clause 2(1) (c).

I understand that FMS and CALM mediators have described their anxieties to the Scottish Law Commission, which concluded that it would be reasonable to try to meet the anxieties of those involved in the mediation process. As a result, the Scottish Law Commission suggested the amendments that we are now considering. They are acceptable to FMS. It tells me that it will require to adjust its practice slightly in order to ensure that clients understand clearly the difference between oral or written contracts which are intended to be binding and other kinds of agreements which more often emerge from family mediation. The CALM lawyers had proposed a different approach, but I am sure that they will recognise that this is a fair compromise and, like FMS, will be able to adjust their practice to work within the law.

I am sure that your Lordships are as grateful as I am to CALM for pointing out the problem and to FMS for backing it in its request to the Scottish Law Commission. Likewise, I am sure that we are all grateful to the Scottish Law Commission for responding as it has. I beg to move.

The Earl of Mar and Kellie: My Lords, the two amendments put the wording of the Bill onto a better footing. They pave the way for a wider range of decisions, as characterised by Clause 1(2) (b) to (e). I had initially spoken about the Bill as though only Clause 1(2) (a) existed; that is, that family mediation was only about determining the children's future. While I recognise that we are dealing with a wide range of issues, I believe that the word "contract" is a more businesslike description of what needs to be achieved. After all, many of the decisions that must be taken on the dismantling of a marriage are similar to those taken in dismantling a partnership in business.

14 Mar 1995 : Column 797

As informal agreements are not to be regarded as contracts, less evidence will become admissible. However, I believe that more agreement will appear in the joint minute when it arrives at the divorce court. That is a plus, and therefore I am keen to support the amendment.

Lord Lyell: My Lords, I thank my noble neighbour for explaining admirably clearly all the thoughts in my mind. I wish her success with the amendment.

Lord Macaulay of Bragar: My Lords, I have spoken to the noble Baroness, Lady Carnegy, about the Bill and have made it clear that I am not trying to stop its process. However, I wonder whether we are moving away from the informality of mediation and into the legalism of contract. The source of the word "contract" has come from the Scottish Law Commission in a learned dissertation by one of its members. The more I consider the matter, the more I believe that the word "contract" is too legalistic to sit happily with the concept of mediation. I make that point in passing and perhaps it can be considered in another place.

7.45 p.m.

Lord Rodger of Earlsferry: My Lords, I am happy to agree with the comments made by my noble friend Lady Carnegy as regards the amendment. The issue touched upon was discussed on Second Reading and was raised by the mediation organisations. We are anxious that the privacy of mediation should not be disturbed by spurious allegations after the event that an agreement had been entered into when no such thing had taken place.

I appreciate the anxieties that the mediation organisations have in this regard. Nonetheless, I must have regard to the overall needs of the law of evidence in Scotland and to the need to ensure a balance of justice to all concerned. I am aware that the proposed amendments have been the subject of extensive discussions with Dr. Clive of the Scottish Law Commission, but I believe that they affect the balance. I believe that there would be a risk of injustice if, where the parties had entered into a contract which they intended should be binding upon them, thereafter one party sought to escape from such a contract without the other party being able to put the matter into the proof in a civil proceeding.

With respect to the noble Lord, Lord Macaulay, the word "contract" is well chosen. It is only where in the course of mediation proceedings a legal and binding contract has been entered into—and that may not occur often—it is right that thereafter evidence of the contract should be able to be led. Otherwise there would be a risk of injustice. It is precisely in order to allow for the fact that more often there may be informal agreements about which evidence will not subsequently be led that the word has been well chosen.

My noble friend has pointed out that the mediation organisations will have regard to the terms of the legislation when deciding the particular forms of procedure to adopt. For those reasons, I take the view that it is justified to have the exception in the way now defined and I am happy to support my noble friend's amendment.

14 Mar 1995 : Column 798

Baroness Carnegy of Lour: My Lords, I thank the noble Earl, Lord Mar and Kellie, for his support and for his explanation of the reason for that support. His experience adds value to the discussions. The noble Lord, Lord Macaulay, was right to clarify the amendment because it is the main change being made to the Bill on Report. I am grateful to my noble and learned friend the Lord Advocate for explaining the meaning behind the proposal of the Scottish Law Commission.

I understand that no one can stop people making a contract if they so wish, and I believe that the noble Lord, Lord Macaulay, will agree with that. It seldom happens in mediation, but no one can stop people doing so. It will not be a usual occurrence, but it would be wrong if a contract were made and no one could lead evidence about it in court in later civil proceedings. I hope that the House will approve the amendment.

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