The Gazette 1988

GAZETTE

DECEMBER 1988

Family mediation — a solution to unhappy differences?

In consideration of mediation or conciliation the principle is that it is not the same thing as marriage counselling or reconciliation. It was because of the easy confusion b e t w e en c o n c i l i a t i on and re- conciliation that the term mediation has become the norm in this country. Mediation was defined by the steering commi t t ee as follows: "Med i a t i on is the means or process whereby a couple whose marriage has broken d own and wh o have the specific intention to separate may reduce any areas of conflict, by discussing w i t h each other together w i t h a mediator, voluntarily and confidentially, such matters wh i ch need to be dealt w i t h as a result of their separation and reach such agreements w i th each other as are in the balanced interest and long term benefit to themselves and their f ami l y ". There was clearly a wide public demand for such a service. In the first year some 4 7 0 requests for initial appointments were received by the service. Of these 124 received advice and information only, as their request was un- supported by the other spouse. The legislation, is it not time for a com- prehensive review of how well this legislation has served us. There are strong indications that the attempt t o c o n t r ol t he d e v e l o pme n t, including change of use of every square metre of urban property is excessively restrictive and that greater freedom should be given to the owners of property to use it as they see fit subject only to such use or development not being o f f e n s i ve or i n j u r i ou s. Our legislation seems to be born of a "little boxes" approach to planning wh i ch may need to be abandoned. • 277

The f am i l y med i a t i on serv i ce set up under t he ausp i ces of t he Depa r tment of Jus t i ce opened its doo rs t o its f i r st c l i ents on 1st Sep t ember 1986. Now t hat t he serv i ce has been ope r a t i ng f or some t wo years it is poss i b le f or t hose p r ac t i s i ng in f am i l y l aw bo t h t o have some unde r s t and i ng of its ope r a t i on and t o assess t o s ome ex t ent its impact on mar i t al b r eakdown and separation. Of course the State Family Med i a t i on Service is not the only source of mar i tal med i at i on: there is f or instance t he we ll established Mar r i age and Family I ns t i t u te and t he re are o t her pr i vate g r oups as we ll as i nd i v i dual med i a t o r s.

For some years before the State mediation service was set up there had been growing public interest in mediation or conciliation as a means of dealing w i th the problems of separating couples. Examples of such services in other countries were cited, in particular that of the Bristol Conc i l i a t i on Service in Britain. There was a growing belief t hat t he med i a t i on / conc i l i a t i on me t hod was more successful than the " adve r se r i a l" legal system in enabling separating couples to come to reasonable agreements. This t r end c u l m i n a t ed in t he r ecommenda t i ons of the Joint Commi t t ee of the Oireachtas on ma r r i a ge b r e a k d o wn w h i c h devoted a chapter of its Report to a reasonably detailed discussion on mediation. This included sections on t he pu r po s e s, s c ope and structure of mediation services, on their finances and staffing and on me t hods of referral to them. The Committee came down in favour of an i n d e p e n d e nt o u t - o f - c o u rt service w i th voluntary participation of the parties. It rejected the idea of a c omp u l s o ry r e f e r r al t o mediation as a concomi t ant or preliminary to court proceedings. This was clearly right as to force an unwilling couple to go to mediation merely makes t hem go through a futile exercise w i t h little or no hope of success. The Oireachtas Joint Committee reported on 2 7 th March 1985, in the same mon th the t hen Minister of State for family law reform, Mrs.

Nuala Fennell, set up a voluntary s t e e r i ng c o mm i t t ee w h i c h eventually led to the establishment of the Family Mediation Service in September 1986. It is perhaps rather ironic that the establishment by Catherine McGu i nness, Bar r i s ter -at -Law w h i c h acknowledged the urgent reality of marriage breakdown should have followed less than t wo mon t hs after the country had firmly closed its eyes to t hat very same reality in the divorce referendum. of a S t a te s e r v i ce " genu i ne" owners have a right to compensation while " specu l a t o r s" cannot benefit f r om its provisions r ema i ns t o be seen. The replacement of the "Unde r t ak i ng to Grant Permission" by a notice from the planning authority stating that the land should be capable of other development is an interesting alternative to t he unwo r kab le Undertaking. It remains to be seen if it will prove any more useful either to the plannners or the deve l ope rs t h an t he p r ev i ous arrangement. Twe n t y - f i ve years a f t er t he introduction of our basic planning V I EWPOI NT — c o n t d. f r om page 2 7 5