The Gazette 1986

APRIL 1986

GAZETTE

The State Family Mediation Service

by James F. O'Higgins Solicitor*

I n March 1985, the Minister for State in the Depart- ment of Justice (Women's Affairs, Family Law Reform), Mrs. Nuala Fennell, appointed a Steering Committee described as "The Steering Committee and Pilot Scheme for Family Conciliation". The terms of reference were to draw up a pilot "family conciliation scheme" and, subject to the approval of such scheme, to provide a service for a pilot period of three years. A further objective was to make provision for an independent assessment of the effectiveness of the scheme, and at the end of the three year period to report to the Minister. The composition of the board was made up of various disciplines and a report was presented to the Minister in October 1985. In early 1986, approval was obtained to appoint staff. A co-ordinator has recently been appointed and a selection process and training programme is underway for mediators. When the training programme is complete a mediation centre will open in one location in Dublin, with initially, four mediators. While as a matter of convenience the centre is in Dublin it is hoped that referrals will be from all over the country. The Committee decided at the outset to adopt the word "mediation" rather than "conciliation", as the word mediation did not have the connotations of labour law nor did it cause confusion with "reconciliation". The Irish scheme will be unique in that it will be the first State sponsored service of its kind and its services will be free. It is intended to be an "out-of-court" service and, therefore, it will not be subject to judicial sanction or control; but it is envisaged that informal referrals of separating couples will come from members of the judiciary. By this is meant that judges might recommend the parties to family law proceedings to attend the Mediation Service and if an agreement was successfully mediated between the parties, the agreement might be made a rule of court or the court case adjourned. If the mediation failed the Court would simply be informed of this fact and would proceed to adjudicate on outstanding issues in the ordinary way. The Mediation Service is an alternative to a court system and, happily, solicitors are no longer concerned that a perceived lucrative area of their professional practice might be taken from them; on the contrary the Pilot Scheme has been welcomed by the Law Society. The Steering Committee has had consultations with a sub-committee of the Law Society and with representa- tives of the Legal Aid Board, we well as with members of the judiciary. The concerns that solicitors had about the "legality" of the agreement, or "memorandum of understanding", entered into at the end of mediation (such concerns as: were people's personal rights being

placed at risk; were they being surrendered as a result of some lay person mediator's interference; would solicitors leave themselves open to claims simply if they recommended parties to attend for mediation?) can be alleviated. Mediation is a different discipline and a strict code of conduct for mediators has been drawn up by the Committee. This code stresses the duty of the mediator at the commencement of, during and at the end of, the mediation process to advise a couple of their right to take independent legal advice. At the end of the mediation process any referring solicitors will be advised by the Service that mediation has terminated, they will not, however, be advised of the "heads of agreement" without the consent of the parties. The mediators, before even embarking on the training programme which has been designed by the Committee, have all had experience in dealing with marital conflict, counselling and conflict resolution. This team of skilled people will take the couple together (not individually) for an average of six sessions. A professsional assessment will be made as to the suitability of the couples for mediation and as to the optimum time to be

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