The Gazette 1986

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:

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.

"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

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