Family Mediation in Ireland

Sinéad Conneely

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351748308
• Edition: 1
• Topic: Derecho
• Subtopic: Arbitraje, negociación y mediación en el derecho

This title was first published in 2002: After outlining the origins and development of family mediation on a world-wide basis, this book assesses family mediation services in the Republic of Ireland and Northern Ireland, within the context of the empirical and theoretical debates surrounding the practice. It is the first comprehensive study of the area in Ireland, appearing at an opportune time, due to the expansion of the service in the Republic and its virtual collapse in Northern Ireland. It argues that the service provided in the Republic of Ireland is appreciated by clients and is successful, although the issue of domestic violence remains. In contrast, it suggests that the absence of service provision in Northern Ireland is problematic, since it undermines consumer choice.

Chapter 1

The Origins and Development of Family Mediation

Introduction

This chapter seeks to describe the practice of family mediation and to place the practice in the context of the rise of alternative dispute resolution generally. Mediation has been described as a process by which the participants, together with the assistance of a neutral person or persons, systematically isolate issues in order to develop options, consider alternatives and reach a consensual settlement that will accommodate their needs.¹ In examining the forms of mediation, this chapter seeks to elaborate on this description and illustrate the rich variety in practice, which is not reflected in any definition of the procedure.

Mediation can also be examined in the context of the civil justice system as a whole: the various forms of family mediation are, to a greater or a lesser degree, within that system and should be compatible with the aims and objectives of the civil justice system and with its reform. The rise of alternative dispute resolution mechanisms in general and family mediation in particular originates in a critique of the adjudicative system and rising levels of disillusionment within government, the judiciary and amongst the general public.

In so far as a theoretical framework for mediation has developed, it is described. While the development of a theoretical basis for the practice seems to have been slow and arduous, mediation is not without a unique philosophical approach. In some sense, it can be reasonably argued that the philosophical grounding for family mediation lies in the critique of formalism and the adversarial system: it is not so much an intellectually distinct and independent form of dispute resolution as a reaction to the system which has traditionally held sway in the Western world. Yet it is imperative that mediation distinguish itself from adjudication, arbitration and negotiation by lawyers, in order to establish itself as a separate order. From the critique has emerged grounded practice with aims and objectives, which diverge from those of the court system. This debate is explored.

The vision of mediation’s advocates is investigated. It is a search for the internal logic of mediation, for the view that mediation has of itself, where it has come from, what it seeks to achieve and how it fits into the existing frameworks of dispute resolution. The claims and underlying assumptions of the practice are examined in some detail: this illustrates clearly how mediation perceives its own contribution to the work of dispute resolution. Family mediation in its various forms is examined, forms which may be established variations, recognisable as distinct models of practice, or more often, merely variations which originate in the style, approach and philosophy of the mediator.

Mediation possesses a number of safeguards for the protection of clients, which the practice is anxious to enhance and develop, specifically, privilege of communications, high standards in the selection and training of mediators and codes of ethics. The last two may be seen as aspects of the professionalisation of mediation that provides security for the client entering the process. While this chapter considers the growth of mediation in common law jurisdictions, it does not attempt to give a detailed account of the history of mediation in each country but merely, for illustrative purposes, describes a trend towards the adoption of mediation in divorce cases.

This is no more evident than in the legislative encouragement of the practice, well established in the United States and more recently revealed in the United Kingdom and in Ireland. As it becomes increasingly the darling of the legislature, the future of mediation seems assured.

The Origins of Mediation as an Alternative Dispute Resolution Mechanism

Mediators have pointed to the ancient art in the custom and law of the East, particularly China and Japan, where the sustenance of harmonious relationships was felt to be damaged by the self-help and adversarial proceedings involved in legal action. There is anthropological evidence of a mediation form in African custom, where settlement without judge or sanctions depends on the availability of a person of status who will intervene in the dispute.² Indeed, extensive reference is made to the literature of legal anthropology in mediation discussions.

More recently, ethnic and religious sub-groups in the United States have practised their own alternative procedures in order to retain their separate identity and to avoid conceding power to the majority government or secular authority. Auerbach refers to these “intriguing experiments which testify to a persistent counter tradition to legalism”,³ experiments which testify to an enduring vision of community and harmonious settlement of disputes. The break with this tradition is perceived to be the growth of the rights culture in the 1960s. Indeed, the drive for the enshrinement of positive rights to end the oppression of marginalized groups was not confined to the United States but could be illustrated equally by the Catholic civil rights movement in Northern Ireland or the feminist movement in the Republic. The argument goes that the focus on rights has played a significant part in the “transformation of Western political culture from the harmony ideology of feudal societies into twentieth century participatory democracies”.⁴ While this movement is accredited with some value, the rights-orientated public culture has been greeted with scepticism from some quarters, who suggest that legal solutions are not sufficient to guarantee access to individualised remedies for those whose lives have been disrupted by the legal disputes.⁵ Thus, alternative dispute resolution mechanisms are, in a sense, a rethinking of the rights ideology as a method of dispute resolution and as a definition of social relations.

In the United States, it became evident by the late 1960s that interest in alternative dispute mechanisms had renewed. Remarkable growth in the alternative dispute resolution industry was evident, exemplified by the development of organisations, courses and an extensive literature. Three particular concerns predominated: “a feeling on the part of the American legal establishment that the court system was becoming intolerably overloaded…: a felt need on the part of professionals and others for specialised private fora to serve particular interests and a view that over and above the concomitant increase in congestion, delay and expense, the system was incapable in a more fundamental way of living up to the ideals of access to justice for all”.⁶ Alarms were sounding in political and legal circles and the streams of thought converged to promote alternative mechanisms in law and practice, at national and community level. Modem formalised systems of alternative dispute resolution developed in industrial relations, commercial disputes, community relations and the criminal justice system.⁷ In the United States, they obtained their legitimacy from the earlier sub-culture forms and in New Zealand from Maori culture. There has been no real attempt to legitimise the practice with reference to earlier historical forms in the UK, although reference is commonly made to the Chinese experience.

In Ireland, the practice has been placed in the context of the Irish value system, in particular the teachings and practices of the Roman Catholic Church.⁸ This may suggest that mediators feel that the practice needs to be conceptualised as a natural and necessary development of what has gone before or at least as a practice with roots in ancient times. It also suggests a need to defend the empathetic position that mediation holds on the choice of separation. It is argued that divorce by mutual consent was available in Ireland in antiquity and supported by the Early Christian Church. Like modem mediation, the view of the Roman Catholic Church, that the validity of marriage depends on the mutual consent of the parties and the doctrine that marriage is invulnerable to the will of the spouses to dissolve it, has been questioned by theologians within the Church.⁹ The perspective of the Second Vatican Council, that marriage is a man and woman’s sharing of love and intimacy, presupposes that all adults can achieve this intimacy and continue to sustain it, but does not deal with the implications of this supposition.¹⁰ Moreover, one mediator has called on Catholic thinking to illustrate the dangers of the rights-based approach to dispute resolution: “The attempt to translate all morality into the language of rights could constitute an enormous impoverishment of morality in the Christian and the wider human tradition. Where would that leave friendship, hope, love and forgiveness.”¹¹ These are the values which are incorporated into the spirit of mediation, it is claimed.¹²

Alternative Dispute Resolution and the Civil Justice System

The perceived crisis in the civil justice system, which led government and the judiciary alike to view alternative dispute resolution as a preferable means of solving disagreements, also led to a concern with renovation of the civil justice system itself. As Auerbach put it, “a movement toward substantive justice, outside the procedural norms of the legal system, has evolved into a movement for procedural reform of the judicial system”.¹³ The advocacy of alternative dispute resolution can be viewed as an integral part of this process: thus viewed, it appears less as an alternative and more as a means of renovating and entrenching the litigation system and supporting the judicial process, particularly where it is integrated into the public justice system through the provision of in-court schemes. The idea of the “multi-door courthouse”, where cases are siphoned into alternative mechanisms before the adjudication stage is reached, reflects this view. While models of alternative dispute resolution vary widely according to factors such as who acts as mediator, the degree of voluntariness and court sponsorship, any model can be described with reference to the degree of integration with the civil justice process.¹⁴

According to Roberts, interest in the “alternatives” has come at a moment where there is a renewed self-consciousness about the civil justice system as it stands.¹⁵ Indeed, it has come at a time of great innovation and change in that system. The 1990s in Britain, for instance,¹⁶ was characterised by an emphasis on the ideal of a speedy, efficient and cost-effective model of civil justice that allows maximum access. In March 1994, Lord Woolf was asked by the Lord Chancellor to review the rules and procedures of the civil courts in England and Wales. Reporting in 1996, he recommended a three-tier system of legal proceedings and new civil proceedings rules with the objective of increasing openness and co-operation between the parties to the dispute.¹⁷

Moreover, a pilot rule has introduced a standard case-managed system for ancillary relief applications in family law, which envisages that once an application is made to court, it should be kept moving by the court....