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GAZETTE
APRIL 1986
Mediation in Family Disputes
—As Seen by A Solicitor /Mediator
by
Mary Lloyd*
J ^ J e d i a t i on has been defined as:
"the management of other people's negotiations. The
mediator facilitates the negotiations by managing the
process and assisting the couple to define mutually
autonomous problem definitions, creating options to
solve these problems and then bargain around these
options. The outcome of mediation is an agreement
mutually acceptable to both parties."
The purpose of this article is to reflect on the meeting
on mediation held by the Law Society in June 1985 and
the one day Seminar entitled "Mediation in Family
Dispute" held in the Law Society, November 1985 run
by John M. Haynes, Ph.D., Mediator, (one of the
leading exponents and teachers of mediation techniques
in the United States), and organised by the Mediation
Training Network.
The idea of holding a one day meeting in June 1985
was the culmination of a series of meetings between the
Marriage and Family Institute, being a group of
mediators and therapists, and members of the
Education Committee of the Law Society. The purpose
of the one day meeting was to give members of the legal
profession and mediators an opportunity to exchange
views and concerns regarding a possible overlap of
interests between the two professions in the area of
Family Law. For the mediators' part they wished the
Law Society to look at the advantages of the mediation
process as an alternative to litigation in family disputes,
while the concern for the legal profession was to ensure
that the client was fully informed of their legal rights by
his/her solicitor and that any terms agreed to between
the separating couple in the course of mediation would
be incorporated by solicitors into a legally binding
agreement. There was a lively exchange of views at the
meeting and the overall feeling was that the exercise had
been well worthwhile and that the lines of
communication between the two professions should
remain open and be developed.
Four papers were given at the meeting — two from
solicitors — Laurence F. Brannigan and Mary Lloyd
and one each from Maura Wall-Murphy, Senior Social
Worker and mediator, child and Family Centre, 59
Orwell Road, Dublin 6, and Jim Sheehan, Chairperson
and Mediator, Marriage and Family Institute, 5 Clare
Street, Dublin 2.
The one day seminar in November 1985 was
conducted by Dr. John M. Haynes of Haynes
Mediation Associates Inc. New York, a practising
mediator. Dr. Haynes commenced the seminar by
illustrating to his audience the difference between the
mediation process and the judicial system. He did this
by asking the audience to work in trios, one as a judge
and the other two as a husband and wife, each arguing
before the judge over a random item of their choice in
the hall, each side to put forward their case for three
minutes: and, then a further three minutes with the
judge now in the role of mediator. The results from the
floor showed that with the 'judicial system' the couple
had handed over the responsibility for the outcome to
the judge and, consequently, there had been a winner
and a loser, whereas with the 'mediation process' the
couple had retained responsibility for and control over
the outcome. It further showed that they had been more
likely to make concessions to each other as they were
not operating from positions which they had to defend.
This is really what mediation is about. It is about
problem solving as a co-operative process and not from
defended positions.
Family mediation is a process by which a husband
and wife who have agreed to separate are helped by a
neutral third party, the mediator, to negotiate the
arrangements for their future lives. The spousal
relationship is coming to an end but the parental
relationship, where there are children, continues.
Therefore, open lines of communication between the
separating couple is essential. Mediation encourages
each spouse to leave the past behind and to focus
instead on their individual futures and their future
parenting.
John Haynes defines a couple as ready to negotiate
through mediation when both have decided that to
reach an agreement is better than having none. It is fear
of the alternatives that brings couples to mediation
rather than belief in its excellence as a process.
Skills required by a mediator are:—
1. Non judgmental.
2. Patience.
3. Creative — able to look outside the confines of the
dispute and to find possible solutions.
4. Detachment — not involved in the conflicts.
5. Focus on the task.
6. Ability to keep a couple on track.
7. A good listener.
Using Dr. Haynes' system of mediation it is not the
function of the mediator to explore the causes of the
marriage breakdown. With him, the mediator is not a
therapist or counsellor.
John Haynes normally works with a couple for
fifteen sessions of two hours each. At the outset he
stresses the confidentiality of the process. Mediation
can deal with any or all the issues arising in separation.
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