38.—(1) This section applies to cases in which a person with special educational needs or, if the person with such needs is a minor, a parent of the person—

(a) makes a complaint to the Minister that the special educational needs of the person are not being met, or

(b) proposes to bring, or has brought, proceedings in any court seeking redress in respect of an alleged failure by the Minister or the State to meet those needs of the person (whether the failure to be alleged or alleged in the proceedings is expressed as amounting to a breach of Article 42 of the Constitution, a failure to comply with this Act or howsoever otherwise).

(2) The Minister may make regulations (“the regulations”) as respects cases to which this section applies enabling—

(a) a complaint mentioned in subsection (1)(a), or

(b) an alleged failure by the Minister or the State mentioned in subsection (1)(b),

to be the subject of mediation.

(3) The reference in subsection (2) to a matter being the subject of mediation is a reference to the matter being referred, in accordance with procedures specified in the regulations, to an individual or body appointed in accordance with the regulations (“the mediator”) for the purpose of mediation being conducted by the mediator in relation to it, that is to say, mediation conducted with a view to resolving the issue or issues the subject of the complaint or the proceedings or the proposed proceedings concerned.

(4) The regulations shall provide that, for the purpose of resolving that issue or those issues, the mediator shall—

(a) inquire fully into each relevant aspect of the issue or issues,

(b) provide to, and receive from, the parties to the mediation such information and generally make such suggestions to each of them as the mediator considers appropriate, and

(c) on completion of any hearing (or the last of them where there is more than one hearing) conducted for that purpose, prepare and furnish to each of the parties a report in relation to the mediation,

and the regulations shall also contain the provisions referred to in subsection (5).

(5) Those provisions are—

(a) a provision prohibiting, subject to such exceptions as may be specified in the regulations, the disclosure of any statements made or information given by the parties to the mediation for the purpose of the mediation,

(b) a provision prohibiting, subject to such exceptions as may be specified in the regulations, the disclosure of the report referred to in subsection (4)(c) to persons other than the parties to the mediation,

(c) provisions specifying procedures with respect to the appointment of the mediator, and those provisions shall enable only—

(i) a body which is independent of the persons who will be parties to the mediation to make such an appointment (and such provision shall be in addition to any provision made by the regulations under subsection (6)),

(ii) an individual or body who or which is independent of those persons to be the subject of such an appointment,

(d) a provision specifying that mediation shall not be conducted pending the hearing and determination of an appeal under this Act that lies in respect of the matter concerned, and

(e) such provisions consequential on, or incidental to, the foregoing provisions or the provisions of subsection (3) or (4) as the Minister may consider necessary or expedient.

(6) The regulations may also provide that only a body falling within a class of bodies standing recognised for the time being by the Minister for the purposes of the provision referred to in subsection (5)(c)(i), may, subject to that provision, make an appointment of the kind referred to in that provision.

(7) A court hearing proceedings such as are referred to in subsection (1)(b), may, in making any decision as to the costs of those proceedings, have regard to, if such be the case—

(a) that the person bringing those proceedings refused to participate in a mediation provided for by the regulations in relation to the issue or issues the subject of those proceedings, or

(b) that that person did not participate in good faith in such a mediation, and, for the purpose of determining whether that person did not so participate in good faith, the court may have regard to the report referred to in subsection (4)(c) prepared in relation to the mediation.

(8) In this section “body” means a body corporate or an unincorporated body of persons.