The Gazette 1986

GAZETTE

APRIL 1986

Mediation — Professional and Practice Issues

Maura Wall-Murphy*

his Paper attempts to deal with mediation from a

practitioner's point of view. It shows how in marital

breakdown, the shift from offering assessment of

children in a Child and Family Centre, to offering

mediation for their parents can have far-reaching effects

on the future relationships in the family. This paper is

based on the experience of working with 40 couples

referred for Mediation to the Child and Family Centre

in Dublin. The term "mediation" refers to a form of

negotiation in which a couple who has decided to

separate, attempts with the aid of a Mediator to reach

an agreement on those issues pertaining to the

separation.

When couples are in difficulties with their marriage in

Ireland they tend to opt for one or more of the

following: ignore the problem, and pray that it will go

away; blame their partner, and consult a solicitor;

blame themselves, and seek medical or counselling help

or seek assessment for their children. The last option is

preferable to some as it is more acceptable to have a

problem child than a problem marriage. Marital

breakdown and separation in Ireland tends to be seen in

either moralistic or pathological terms and the

solutions, despite our utterances on the sanctity of

marriage and the family, often appear to be anti-family.

Marital breakdown is not a sudden decision but a

point on a continuum. Rarely are the partners at the

same point in their decision to separate or in their

willingness to reach an agreement. The first task for the

"mediator" is to establish whether or not this couple

really wants to separate. Some couples request

separation mediation but the hidden agenda is really

wanting their partners to work at the marriage, or stop

drinking or "come to their senses". Mediation is not

appropriate for these couples and they are given the

option of receiving counselling or family therapy, or, if

they do not wish to avail of these services, the option of

doing nothing. Of the couples who requested mediation

in 1984, 74% reached a settlement on all issues relating

to separation; 13% were referred for marital

counselling; 13% decided to do nothing.

The Process

The model of mediation used here is an adaptation of

that used by the American Academy of Family

Mediators founded in the U.S.A. in the 1979's. It is

adapted to meet the specific needs of the Irish situation.

Before entering mediation the couple is asked to sign

a contract agreeing to abide by the "Rules" of

mediation. This contract includes a statement of the

principles underlying mediation, e.g. that couples take

responsibility for working out their own separation

agreement; that all discussions are confidential; that the

mediator does not take sides or testify in court on behalf

of either party. All issues relevant to separation are

negotiated; these include joint parenting, living

arrangements, family home, financial support and

assets of the marriage. A full and frank disclosure must

be made of all financial and other relevant information

to ensure that participants make fair decisions based on

sufficient information. It is advisable for each party to

seek outside consultation on the long-term tax and legal

consequences of different proposals and to take back to

their respective solicitors the memorandum of

agreement reached in mediation if they wish it to have

legal effect.

In the event of a breakdown on the agreement or of

any change in circumstances affecting the agreement the

parties may return to re-negotiate the issues in question.

In the event of no agreement being reached and the

couple decide to go to court, the only information the

mediator can give the court or any other professional is

that no agreement was reached. Either party or the

mediator has the right to withdraw from mediation ai

any time.

It is important to explain to couples that mediation

differs from arbitration, counselling and therapy and

that it is

not

a form of assessment or supervision of the

couple or their children. The mediator's task is to

promote the balanced interests of the whole family. This

often comes as a surprise to the couple as the expecta-

tion is that they will be seen in some way as inadequate

or unfit parents and the their children will be

emotionally scarred for life. Research has shown that it

is not the separation event that is the central factor

determing the outcome for the children but rather it is

the "separation process or chain of events set in motion

by the separation, that determines the outcome".

(Wallerstein & Kelly, 1976)'. This is also borne out by

Walszak and Burns, 1984: "A child's future is not

determined at any stage. Harmful or potentially

harmful experiences do not have a lasting influence if

subsequently compensated for by good experiences"

In order to use mediation both parties must be willing

to mediate and have the ability to use negotiation skills.

Of the couples seen for mediation in 1984, 56% of

referrals were initiated by the legal profession, 30% by

the couples themselves and 14% by G.P.s. Most couples

could be described as "high conflict" couples, i.e.

reluctant to sit in the same room for the initial session.

Some couples were willing to separate but unwilling to

accept one of the outcomes of separation such as being

on their own, or being part-time parents or having to

manage on less money. When working on the areas of

budgeting, child management, identifying assets,

consulting with experts, or telling the children, the

mediator acts as an educator and information-giver,

helping the couple to identify their resources and to use

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