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GAZETTE
APRIL 1986
The State Family Mediation Service
by
James F. O'Higgins
Solicitor*
I
n March 1985, the Minister for State in the Depart-
ment of Justice (Women's Affairs, Family Law
Reform), Mrs. Nuala Fennell, appointed a Steering
Committee described as "The Steering Committee and
Pilot Scheme for Family Conciliation". The terms of
reference were to draw up a pilot "family conciliation
scheme" and, subject to the approval of such scheme,
to provide a service for a pilot period of three years. A
further objective was to make provision for an
independent assessment of the effectiveness of the
scheme, and at the end of the three year period to report
to the Minister.
The composition of the board was made up of various
disciplines and a report was presented to the Minister in
October 1985. In early 1986, approval was obtained to
appoint staff.
A co-ordinator has recently been appointed and a
selection process and training programme is underway
for mediators. When the training programme is
complete a mediation centre will open in one location in
Dublin, with initially, four mediators. While as a matter
of convenience the centre is in Dublin it is hoped that
referrals will be from all over the country.
The Committee decided at the outset to adopt the
word "mediation" rather than "conciliation", as the
word mediation did not have the connotations of labour
law nor did it cause confusion with "reconciliation".
The Irish scheme will be unique in that it will be the first
State sponsored service of its kind and its services will be
free.
It is intended to be an "out-of-court" service and,
therefore, it will not be subject to judicial sanction or
control; but it is envisaged that informal referrals of
separating couples will come from members of the
judiciary. By this is meant that judges might
recommend the parties to family law proceedings to
attend the Mediation Service and if an agreement was
successfully mediated between the parties, the
agreement might be made a rule of court or the court
case adjourned. If the mediation failed the Court would
simply be informed of this fact and would proceed to
adjudicate on outstanding issues in the ordinary way.
The Mediation Service is an alternative to a court
system and, happily, solicitors are no longer concerned
that a perceived lucrative area of their professional
practice might be taken from them; on the contrary the
Pilot Scheme has been welcomed by the Law Society.
The Steering Committee has had consultations with a
sub-committee of the Law Society and with representa-
tives of the Legal Aid Board, we well as with members
of the judiciary. The concerns that solicitors had about
the "legality" of the agreement, or "memorandum of
understanding", entered into at the end of mediation
(such concerns as: were people's personal rights being
placed at risk; were they being surrendered as a result of
some lay person mediator's interference; would
solicitors leave themselves open to claims simply if they
recommended parties to attend for mediation?) can be
alleviated. Mediation is a different discipline and a strict
code of conduct for mediators has been drawn up by the
Committee. This code stresses the duty of the mediator
at the commencement of, during and at the end of, the
mediation process to advise a couple of their right to
take independent legal advice.
At the end of the mediation process any referring
solicitors will be advised by the Service that mediation
has terminated, they will not, however, be advised of
the "heads of agreement" without the consent of the
parties.
The mediators, before even embarking on the training
programme which has been designed by the Committee,
have all had experience in dealing with marital conflict,
counselling and conflict resolution. This team of skilled
people will take the couple together (not individually)
for an average of six sessions. A professsional
assessment will be made as to the suitability of the
couples for mediation and as to the optimum time to be
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