Posted in Family Law
by Karen O'Donovan
on Wednesday 21 January 2015

Alternative dispute resolution (ADR) services such as mediation, collaborative law and conciliation have consistently been found to be more suitable for certain types of family law issues than our current court system. It has been argued that “the adversarial nature of proceedings does little to resolve conflict in families’ lives but rather compounds and increases that conflict in many cases”. ADR processes on the other hand, give disputants “full control over the outcome of the process which is not always possible in a public, formal and adversarial justice system”. It has been asserted that ADR could greatly alleviate the problems concerning enforcement of court orders, particularly in cases involving children. O’Callaghan notes that the resolution of family law cases involving children outside the court process enables parents to reach a workable agreement in practice and which less likely to raise the need for enforcement by a court.

These advantageous elements of ADR have led to a proliferation of legislation in the last 30 years. In particular, mediation has been successful in the area of family law. In the context of non-marital families, relevant ADR developments include the requirement that solicitors discuss the possibility of using mediation and also the addresses and names of known mediators with clients who are involved in custody and access disputes. The court may also adjourn family law proceedings to allow the parties to consider mediation in a wide range of circumstances, including applications under section 174 of the 2010 Act and in the High Court generally.

Despite these developments, it has been acknowledged that the uptake of mediation in Ireland remains low, with figures in 2006 putting the number of couples using mediation at only 3% of the total number of couples going through the courts. The Draft General Scheme of the Mediation Bill 2012 was published in March of 2012 will attempt to remedy this. Hutchinson notes that 'the Bill is designed to encourage and facilitate the use of mediation to resolve civil, commercial and family disputes, and it builds upon the recommendations of the Law Reform Commission in their 2010 Report on Alternative Dispute Resolution – Mediation and Conciliation'. The Bill strengthens and generalises, across all proceedings, the statutory requirement for solicitors to discuss with their clients the possibility of mediation. This requirement will combat the scepticism that has been expressed as to whether meaningful consideration has been given to ADR by both client and solicitor . Heads 4 and 5 require a written statement signed by both the client and solicitor/barrister confirming that Mediation has been considered as an alternative means of settling the dispute.

Unfortunately, the Bill fails to act upon the LRC recommendation that attendance at an information session on family dispute resolution processes should, in general, be made a statutory mandatory requirement in family law cases, with the exception of proceedings involving the Domestic Violence Act 1996 or where personal safety is at risk. This is an anomaly given that the international research has shown that voluntary participation in information sessions on ADR is quite low and there is an international trend in making them mandatory for family disputes. Also, this recommendation has been repeatedly endorsed by Irish authorities on family law including the Family Law Reporting Project Committee.

Given the potential benefits stemming from the use of alternative dispute resolution, it is recommended that attendance at an information session on family alternative dispute resolution processes should be made a statutory mandatory requirement, with the exception of proceedings under the Domestic Violence Act 1996.

 

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