The Gazette 1988

GAZETTE

DECEMBER 1988

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 TO OBTAIN THE MOST TAX-EFFICIENT FUNDING FOR THE PURPOSE OF STARTING OR DEVELOPING A PROFESSIONAL PRACTICE PURCHASING PROPERTY BUILDING UP A SIZEABLE PENSION CONTACT YOUR LOCAL BANK OF IRELAND BRANCH OR TELEPHONE 01 -615933 EXT. 2319/5016, TODAY! / CS^ Ba nk t F l r e i ana Now, what can we do for you? Are you in PROFESSIONAL PRACTICE?

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

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-

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