More lawyers need to become involved in mediation, a group of lawyer and non-lawyer mediators told CAROL COULTER
THE ADVANTAGES of mediation over litigation in family law disputes have been well-rehearsed. Mediation permits the parties to retain control of the outcome of the dispute; it is a far less bruising process than going through an adversarial court case; it enables the parties to talk directly to each other and to express their hurt and their needs.
The Chief Justice and many other judges have expressed their support for the wider use of mediation in family law – and, indeed, other – disputes, and provision now exists in the Commercial Court for cases to be adjourned for mediation. The Legal Aid Board has taken steps to increase use of mediation by its solicitors. Yet the proportion of family law cases being mediated remains low, partly because of lingering suspicion of the process among lawyers.
Eugene Davy is a solicitor in Hayes and Son solicitors who has specialised in family law for many years. He and four other lawyers recently joined One Resolve, a network of mediators, many from non-legal backgrounds, and they attempt to provide lawyer-assisted mediation, which he thinks could overcome some of the perceived problems with the more traditional forms.
“The Government-sponsored Family Mediation Service is an excellent service staffed by competent and experienced mediators,” he told The Irish Times. “However, the mediation model used is often inappropriate in certain types of family law cases, particularly where (a) the parties are not on an equal footing and where there is serious power imbalance, and (b) where the financial issues are not straightforward. Many cases fall into one or both of these categories.”
He said many family law clients are dependent wives married to husbands who are successful businessmen or professional men or indeed both. “Such a client is likely to be out of her depth with this form of mediation. Invariably such a client needs a solicitor to advise her and in particular to manage matters on her behalf. Indeed the solicitor in such a case might also require the assistance of other professionals and experts to carry out the task of assessing the net realisable assets.”
The other main difficulty is that quite often, parties reach agreement with little or no legal advice, and not knowing what they are compromising. The mediator then draws up a Memorandum of Understanding, which is signed by the parties, and at that stage they are advised to consult their own solicitor. If they have not had advice up to this point, and entered mediation with misconceptions about the family law system, they could find that they are told the proposed agreement is a bad one from their point of view.
This leaves them in an awful dilemma, according to Mr Davy. Starting all over again can be an appalling vista, while formalising a settlement on terms which they are told are inferior to those likely to be imposed by a court or negotiated by a solicitor is no less attractive. This can be avoided if those needing legal advice avail of it throughout the mediation process, he said.
Mediation works best if people opt for it early in the process, though sometimes the issuing of proceedings may be necessary to get people talking, according to Fergus Armstrong, one of the founders of One Resolve. “There is a difference in style in family mediation,” he said. “It can be difficult to bring the process to an end. Bringing lawyers into the process can be difficult. It demands of mediators an effort to persuade lawyers to buy into a non-adversarial process, and understand what that means for their tone and style.
“We present the mediation day as the ‘steps of court’ day where things have to be decided, though sometimes in family mediation it is often not possible to finalise things in one day.”
However, this will only work if lawyers on both sides are willing to engage in mediation, he said, and many lawyers are still very sceptical about this process, though the number of both barristers and solicitors training as mediators themselves is growing steadily, and many groups of lawyer mediators have been set up around the country.
Muriel Walls of McCann Fitzgerald is a veteran family lawyer and now also a mediator and member of One Resolve. “I say to the solicitor on the other side ‘Just try it’,” she said.