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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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