Family Mediation Process

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Mediation is a good alternative in separation disputes

Sunday Business Post, January 06, 2008

Rachel Fehily

An acrimonious relationship or marital break-up is one of the worst things that can happen to you, especially if you can’t agree on parenting arrangements and the division of assets.

Dragging your marital affairs through the family courts can add to the stress of a traumatic break-up. It can also be time-consuming and potentially very expensive for couples who are emotionally and financially vulnerable.

Many politicians, the Law Reform Commission and some lawyers believe that the adversarial system is not appropriate for family law matters and more people are moving towards the collaborative law model.

This is where spouses agree not to go to court and all parties - lawyers and spouses - sit down together and try to negotiate a fair and reasonable settlement.

But in order to succeed, the parties must trust each other and work hard to resolve their differences. Collaborative law can be unwieldy because you have two teams of lawyers. If lawyers adopt an adversarial stance during negotiations, it may appear no different to the traditional model of negotiation - although without the ultimate threat of court in the background.

If negotiations break down, the couple have to hire another set of lawyers and start again from the beginning. But for those reluctant to try the collaborative law model or to go to court, there is another option - mediation.

This can provide a credible, cost-effective, dignified and speedy resolution to all the financial and parenting issues that surround the end of a relationship.

Family mediation places huge emphasis on children and parenting. Mediation sessions about parenting are very detailed and give both parties the opportunity to draw up a comprehensive ‘parenting plan’.

Older children may sometimes be involved in these sessions and b e given an opportunity to have their voices heard in a calm, unthreatening environment. This gives the whole family a unique opportunity to consider and discuss a range of issues around parenting that would not be available in court.

During some mediations, couples can agree on issues surrounding parenting and continue to disagree on other issues, such as property and maintenance. The children can then be taken out of the equation so they are no longer used as pawns in disputes between their parents.

At the end of a successful mediation, the parties will have agreed on some or all of the issues relating to children, property and maintenance. The mediator should then present them with a document that is similar to - but may be longer than - a separation agreement.

The parties are advised to have this document checked by their solicitors before they sign it. It is most important that both parties receive separate legal advice before they sign an agreement negotiated by mediation. It would be unfair for one party to bully or pressure the other into signing an agreement that was not in their interest.

A mediator cannot give legal advice because he or she is working in the interests of both parties. This document can then be drawn into a legal deed of separation or a decree of divorce.

Many mediators who work in the government-funded Family Mediation Service (FMS) are from social studies, psychology or healthcare backgrounds. They complete extensive training courses and are subject to ongoing supervision and training.

Lawyers and psychologists also operate as mediators, practising individually or within a practice. There is no regulation of the sector at present, so anyone can act as a mediator without having any formal qualifications. But since mediators don’t provide legal advice or therapy, clients have no legal recourse if they are dissatisfied with their services.

Fees charged by mediators vary enormously. The FMS - under the auspices of the Department of Social and Family Affairs - is free, but there is a waiting list of a few months and you cannot chose who you want to mediate your dispute.

Mediators in private practice charge €50 to €200 or more an hour. Lawyer-mediators are usually more expensive than mediators with no legal training.

At present, a judge cannot impose mediation on separating couples, but it would be useful if judges became involved, if mediations become more widespread in this jurisdiction.

‘Court-supervised mediation’ might be an effective way to give the mediation process more credibility and transparency.

With the consent of all parties, a mediator might present a report to the family law courts which could then be rubber-stamped by a judge.

However, this would require a change in the current operation of the family law courts. There is a case to be made for parties in family law disputes being required to attend at least one mediation session.

At least if they do so, they can learn what mediation is and what it might achieve for them. If they decide not to opt for mediation, then the lines can be drawn for the bitter and costly battle ahead. 

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