FAMILY DISPUTES need alternative forms of dispute resolution other than the courts, the Attorney General told a conference on collaborative law in Cork yesterday.
Paul Gallagher SC was speaking at the second European conference of the Association of Collaborative Practitioners, which President Mary McAleese also addressed.Mr Gallagher stressed the importance of maintaining human dignity in legal proceedings, particularly family law.
Humanity should not be twisted into law and our humanity should tell us that in family law we need alternative dispute resolution.
"In family law, you can have difficulties that do not exist in any other area of law," he said. "It is not just the dignity of the person that is involved, but the welfare and dignity of the children. Anything we can do to maintain the dignity of the people involved should be embraced." Family law was particularly suited to this form of dispute resolution, he said, although the courts were needed for cases that could not be resolved in any other way. However, before going to court, people should have the opportunity to resolve the dispute, especially relating to the welfare of children.
Lawyers owed a fundamental obligation to the administration of justice that went beyond any duty to their client, he added. They must ensure the maintenance of the relationship between law and society and law and human experience. They had a duty to the community both legally and ethically.
They had contributed greatly to society in identifying wrongs and righting them, often without remuneration, he said. This latest development was another example of that contribution.
Collaborative law offered a mechanism for imposing order on human experience at a most vulnerable time, that of the break-up of a family. These were social issues that touched on the essence of humanity and human dignity.
Helen Collins, a member of the organising committee for the conference, said the association and the Law Society were preparing a submission for the Attorney General and the Minister for Justice on the legislative change needed to integrate collaborative law into the family law system so that it would encompass a method of separation and divorce that was non-adversarial, based on legal rights, family-focused and binding.
Mrs McAleese told the conference it was necessary that the legal process designed to vindicate and support spouses and children through a family breakdown should not itself leave a legacy of unnecessary collateral damage.
"The old adversarial model of a day in court with a winner and a loser was never designed effectively to address the profound human needs and vulnerabilities at the heart of family relationships," she said.
Collaborative law recognises that divorce and relationship breakdown rarely leads to a clean-break scenario where the parties depart, never to be involved in each other's lives again, especially where children or financial dependency are involved, she said.
"The greater the degree of co-operation and mutual buy-in to the process, the more likely it is that in both the short and long-term the outcomes will be healthier and happier all round.
"No lawyer or legal system can be expected to make people happy, but it can at least aspire to minimise the misery," she said. "It can aspire to encourage rather than discourage goodwill, to promote consensus rather than conflict, to help parties move into a better future rather than remain mired in an unhappy past."
It may be that this kind of law could not be the preferred method for every one, she said, and sometimes the goodwill necessary to kick-start it would be a step too far. But where there is a desire on both sides to move to a constructive future, then it is essential that the professionals are there to build on it coherently and effectively.