The reactions of practitioners who have attended our Advocacy Courses for Practitioners in relation to the use of Family Mediation in Family Law disputes has been interesting. Some feel that the Family Mediation processes naturally lend themselves to resolution of the various issues that arise in Separation or Divorce – and/or to these various issues separately, like maintenance, access etc. Others feel that the mediation techniques – patently powerful in commercial matters – are unsuited to family law cases.
Many practitioners seem to feel that the use of Family mediation as a route towards ultimately coming to settlement terms is lengthy and tedious – will merely impose another layer of paper and procedure to an already protracted process. Many feel that a “family mediated agreement” being presented to them as a fait accompli for the purpose of being “turned into” a legal agreement, very often only presents them with additional difficulties both in terms of advising a client in relation to the terms presented and in terms of being asked to “legalise” something that can not or should not be so formalized. Some feel that the control retained by lawyers in settlement talks is necessary to bring about compromise terms.
One can fully understand all of these reactions in the light of practitioners’ very scant experience of the use of Family Mediation in Family Law disputes and in the light of our own experiences and baggage. Modern professional mediation is a structure built upon and around the use of techniques and technologies that are designed to assist parties in arriving at resolution of their disputes by agreement.
While a good Mediator will be empathic and compassionate, family mediation is not some sort of pseudo-counselling process: it is formal, structured and issues-focused. Family Mediation is fast, effective and cost-efficient and while regard will be given to postponing or adjourning the process for particular reasons it will only be done where such reasons are specific, agreed to by the parties and the Mediator and absolutely necessary to the conclusion of the agreement. As a professional structured process it will not succeed if endless adjournments are allowed or if the parties endlessly seek to go back to their solicitors, barristers or other advisers – hence our very strong recommendation for the attendance and participation of lawyers at the Family Mediation. Legal representation at the conclusion of an agreement will ensure all proper and necessary drafting of enforceable agreements and voluntary settlements and of agreement to procedures that may need to be adopted thereafter: for example, if the matter needs to go before a Court as a consent divorce or for the making of specific Orders.
At some level all Family Law solicitors and barristers already engage a mediation mindset in dealing with Family Law matters: we consider our client’s instructions in relation to the issues involved; we consider our opponent’s position; we conject as to the likely outcome of a full hearing; we engage in negotiation with the other side, and they with us, on the basis of these considerations and conjecture. Very often we settle. The great pity is that such settlement often only comes at the last minute and after numerous Motions a long time waiting for the case to be listed for hearing; time during which the parties have become even more polarized and the possibilities for reasonable future relationships for them and their children have been irreparably damaged. Engaging in a mediation process at an early stage with the parties centrally involved can bring about a result months, if not years, earlier, prevent such polarization and give us satisfied clients, closed files and even some personal/professional satisfaction as well.
In Part 2 of this article we will look at how Family Mediation works in Practice
Mediation Services
If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 087-2268394 to discuss your requirements or organize a mediation.
For more information on our mediation services CLICK HERE
Mediation Advocacy Training
Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.
For more information on our training programs CLICK HERE
