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GAZETTE
DECEMBER 1988
Family mediation — a solution to
unhappy differences?
The f am i l y med i a t i on serv i ce set up under t he ausp i ces of
t he Depa r tment of Jus t i ce opened its doo rs t o its f i r st c l i ents
on 1st Sep t ember 1986. Now t hat t he serv i ce has been
ope r a t i ng f or some t wo years it is poss i b le f or t hose
p r ac t i s i ng in f am i l y l aw bo t h t o have some unde r s t and i ng of
its ope r a t i on and t o assess t o s ome ex t ent its impact on
mar i t al b r eakdown and separation. Of course the State Family
Med i a t i on Service is not the only source of mar i tal med i at i on:
there is f or instance t he we ll established Mar r i age and Family
I ns t i t u te and t he re are o t her pr i vate g r oups as we ll as
i nd i v i dual med i a t o r s.
For some years before the State
mediation service was set up there
had been growing public interest in
mediation or conciliation as a
means of dealing w i th the problems
of separating couples. Examples of
such services in other countries
were cited, in particular that of the
Bristol Conc i l i a t i on Service in
Britain. There was a growing belief
t hat t he med i a t i on / conc i l i a t i on
me t hod was more successful than
the " adve r se r i a l" legal system in
enabling separating couples to
come to reasonable agreements.
This t r end c u l m i n a t ed in t he
r ecommenda t i ons of the Joint
Commi t t ee of the Oireachtas on
ma r r i a ge
b r e a k d o wn
w h i c h
devoted a chapter of its Report to
a reasonably detailed discussion on
mediation. This included sections
on t he pu r po s e s, s c ope and
structure of mediation services, on
their finances and staffing and on
me t hods of referral to them. The
Committee came down in favour of
an i n d e p e n d e nt
o u t - o f - c o u rt
service w i th voluntary participation
of the parties. It rejected the idea
of a c omp u l s o ry r e f e r r al t o
mediation as a concomi t ant or
preliminary to court proceedings.
This was clearly right as to force an
unwilling couple to go to mediation
merely makes t hem go through a
futile exercise w i t h little or no hope
of success.
The Oireachtas Joint Committee
reported on 2 7 th March 1985, in
the same mon th the t hen Minister
of State for family law reform, Mrs.
Nuala Fennell, set up a voluntary
s t e e r i ng
c o mm i t t ee
w h i c h
eventually led to the establishment
of the Family Mediation Service in
September 1986. It is perhaps
rather ironic that the establishment
by
Catherine McGu i nness,
Bar r i s ter -at -Law
of
a S t a te
s e r v i ce
w h i c h
acknowledged the urgent reality of
marriage breakdown should have
followed less than t wo mon t hs
after the country had firmly closed
its eyes to t hat very same reality in
the divorce referendum.
In consideration of mediation or
conciliation the principle is that it
is not the same thing as marriage
counselling or reconciliation. It was
because of the easy confusion
b e t w e en c o n c i l i a t i on and re-
conciliation that the term mediation
has become the norm in this
country. Mediation was defined by
the steering commi t t ee as follows:
"Med i a t i on is the means or
process whereby a couple whose
marriage has broken d own and
wh o have the specific intention to
separate may reduce any areas of
conflict, by discussing w i t h each
other together w i t h a mediator,
voluntarily and confidentially, such
matters wh i ch need to be dealt
w i t h as a result of their separation
and reach such agreements w i th
each other as are in the balanced
interest and long term benefit to
themselves and their f ami l y ".
There was clearly a wide public
demand for such a service. In the
first year some 4 7 0 requests for
initial appointments were received
by the service. Of these 124
received advice and information
only, as their request was un-
supported by the other spouse. The
V I EWPOI NT
— c o n t d. f r om page 2 7 5
" genu i ne" owners have a right to
compensation while " specu l a t o r s"
cannot benefit f r om its provisions
r ema i ns
t o
be
seen.
The
replacement of the "Unde r t ak i ng
to Grant Permission" by a notice
from the planning authority stating
that the land should be capable of
other development is an interesting
alternative to t he unwo r kab le
Undertaking. It remains to be seen
if it will prove any more useful
either to the plannners or the
deve l ope rs t h an t he p r ev i ous
arrangement.
Twe n t y - f i ve years a f t er t he
introduction of our basic planning
legislation, is it not time for a com-
prehensive review of how well this
legislation has served us. There are
strong indications that the attempt
t o c o n t r ol t he d e v e l o pme n t,
including change of use of every
square metre of urban property is
excessively restrictive and that
greater freedom should be given to
the owners of property to use it as
they see fit subject only to such
use or development not being
o f f e n s i ve or i n j u r i ou s.
Our
legislation seems to be born of a
"little boxes" approach to planning
wh i ch may need to be abandoned.
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