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GAZETTE

DECEMBER 1988

supported by the other spouse. The

remaining 247 couples were given

appointments and moved t owa rd

mediation. Of the couples dealt

w i th over 5 0% referred them-

selves, 14 . 5% were referred by

solicitors, about 2% by Judges and

1 % by general practitioners. My

own impression is that as time

goes on more couples are being

referred t hough solicitors and

certainly Judges in family law

cases i nc r eas i ng ly encou r age

couples to use mediation and are

virtually always willing to adjourn

proceedings to allow mediation to

be tried. This is done from the best

of mo t i ves but can have its

disadvantages as an unscrupulous

pa r ty can succeed in unduly

p r o l o n g i ng

p r o c e e d i n gs

and

delaying essential reliefs to his or

her spouse by seeking adjourn-

ments on the excuse of going to

mediation in situations where there

is not t he s l i gh t est hope of

mediation succeeding.

Fam i ly Me d i a t i on Se r v i ce

The Family Mediation Service in

February 1988 published a useful

booklet giving the text of papers

p r e s e n t ed t o a c o n f e r e n ce

organised by the service to mark

the first anniversary of its setting

up. This booklet is most helpful in

promoting understanding of the

way in which mediation works and

the claims that it makes. I would

s u g g e st t h at s ome of t he

advocates of mediation tend to

over theorise and to make some

over enthusiastic claims, although

by and large the booklet is a

ba l an c ed one. A d v o c a cy of

mediation is too often coupled wi th

c u s t oma ry r e f e r ences t o t he

"adverserial" court system and

overt or implicit denigration of

lawyers as persons who encourage

bitterness and conflict between

their family law clients. In common

w i t h most family lawyers I resent

this blanket condemnation. The

experienced family law solicitor will

make every effort to encourage a

negotiated separation agreement

and emphatically does not en-

courage his or her clients to take

court proceedings except as a last

resort. Even where proceedings are

taken, both solicitors and barristers

spend much time and effort in

trying to settle cases and in the

majority of cases they are success-

ful in achieving such a settlement.

No matter what system is used

there will always be a number of

cases where all efforts at an agreed

settlement fail and there is need for

a de c i s i on ma k i ng t r i b u n a l.

However, the Joint Oireachtas

Committee in their report rightly

pointed out that when considering

statistics of success or failure in

mediation one must remember that

almost any approach will wo rk

most of the time when dealing with

marriage disputes. It is in the really

difficult cases that both settlement

and mediation can fail.

Se p a r a t i on

When a couple separate there are

a number of areas where disputes

may arise — the major areas being

custody of and access to children,

f i nanc i al ma i n t e n a n ce of t he

economically weaker spouse and

children, and the provision of a

reasonable place to live for both

pa r t i es

and t he ir

c h i l d r en.

Mediation can be successful in all

these areas but my own impression

is that it is most successful in the

custody/access area in helping

separating couples to have a

positive attitude to continuing joint

parenting of their children. Even

here however, both lawyer and

mediator must avoid the trap of

accepting an agreement that is

more about what the parents want

than about the welfare of the child.

The term " j o i nt c u s t o d y" is often

used as a sort of " f l avour of the

mo n t h " but joint custody is not

always the best answer. I have

seen a mediated joint custody

agreement between spouses who

had diametrically opposed views

on education and upbringing which

p r o v i d ed f or a y o u ng ch i ld

attending school three days a week

and missing school on the other

t wo days each week for education

at home in a different language and

in ac co r dance w i t h a t o t a l ly

different education philosophy.

Now that agreement provided a

mediated compromise between the

wishes of the parents but one can

hardly be surprised that before very

long the child began to show clear

signs of damage. In the legal

s y s t em any

c u s t o d y / a c c e ss

decision must be made wi t h in the

ambit of the welfare principle of the

Guardianship of Infants Act, 1964.

This situation cannot clearly apply

in mediation because the very

nature of the system is that the

mediator is not an adviser, is not

judgmental and aims to empower

the couple to make their own

decisions which may or may not be

beneficial to the child.

Ma i n t e n a n ce

As far as ma i n t e n a n ce and

property are concerned it seems to

be crucial that couples make

mediated decisions and agree-

ments within the framework of

knowing what their legal rights are,

so that, if they give up some of

those rights, they do so both

voluntarily and in an informed way.

Cases do arise where mediated

agreements have been made and

parties later realise that they have

unknowingly divested themselves

of important rights, become totally

d i ssa t i s f i ed and abandon t he

agreement. "Me d i a t i o n ", writes

Maura Wail-Murphy of the Family

Mediation Service " i s based on a

c omp l e t e ly d i f f e r e nt set of

assumptions from the adverserial

me t hods of resolving con f l i ct

where all moral claims are trans-

lated into rights language". Enda

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