Easing pain of division

Wednesday, June 20, 2012

We have a duty as lawyers to do the best for our clients, and in the area of family law, mediation is an underused remedy that can avoid the pain and cost of going to court, writes Josepha Madigan

ANYONE who attends Phoenix House in the circuit family law courts in Dublin knows how difficult and how emotionally charged that arena is.

The circumstances whereby litigants find themselves in court, particularly in relation to separation and divorce cases, are traumatic for themselves and their families. The breakdown of trust, relationships, and, for many, the shattering of dreams, leave those involved distressed and vulnerable. Hurt and angry, they also now find themselves having to go through a process that by its nature is adversarial, intrusive, and often confrontational.

The overriding emotion for any litigant embarking on the court process is fear, and the prevailing atmosphere in a court is one of intimidation for most litigants. The destructive conflict caused by protracted and lengthy litigation and the enormous suffering caused to families as a result shouts out loud that this process is not appropriate for the majority of cases.

Sometimes litigation is the only option, particularly in circumstances where emergency applications need to be made with regard to the safety or welfare of children. However, litigation is not always appropriate, and in fact in the majority of cases is inappropriate and unnecessary.

Based on my own experience as a lawyer, mediator, and collaborative practitioner, it is my firm belief that the majority of separating and divorcing clients do not need to go to court to adequately and comprehensively resolve their family law disputes.

It is my strong view that most clients wish to resolve their disputes without recourse to the courts and there are now proven, viable and better alternative or “appropriate” methods available, such as mediation and collaborative law.

Research demonstrates that what process the clients choose to engage in to separate or divorce will determine the extent of the damage to their children.

The number of Irish adults who have divorced or separated in the past 25 years has risen by 600% to 250,000.

Family law issues needing to be resolved have become more complex, reflecting radical changes in family dynamics and the existence of cultural differences. Family law is no longer limited to issues between a parting husband and wife concerning their children, the family home, and maintenance.

Within the category of family law cases coming before the courts nowadays is an ever-expanding spectrum of situations such as: Unmarried parents, co-habitees, same-sex couples, grandparents with rights of access, and donors of sperm or eggs for IVF treatment.

The impact of migration is also to be seen with relationships between different nationalities presenting new challenges to the courts.

In many important respects, the court-based model in family law is the antithesis of resolution, as most would understand it. The “win or lose” mentality nurtured by litigants and their lawyers only serves to reinforce hostility between them.

Its adversarial nature inhibits compromise and often prevents dialogue. Winning is paramount, and, as often as not, that becomes narrowly defined. And in truth, there are no winners in a system that places adversarial bargaining at the heart of a process.

I believe as a legal profession we must put our clients’ interests ahead of our own. Notwithstanding the availability of the in camera rule, we must ask ourselves whether we are open to resolving these disputes in a manner that better reflects the private, personal and confidential nature of the issues between separating and divorcing clients. Can we prevent, or at least lessen, the destructive collateral damage that is an inevitable consequence of litigation for these families?

How many clients really want to choose the traditional adversarial court system over an appropriate dispute resolution (ADR) mechanism where they not only retain control of the process but also the outcome? How many separating or divorcing clients truly want a court-imposed outcome?

If 90% of family law cases settle outside of court then there is no reason why these cases cannot settle prior to the issuing of proceedings and without the threat of court in the background.

THE cost savings to clients engaging in ADR mechanisms, both in terms of time and money are quite simply staggering. It is my estimation that parties who engage in an ADR process as distinct from opting for the traditional court- based litigation route will reduce their costs by as much as 60%. This is borne out by the experiences of other similar jurisdictions broadly similar to our own in Canada, New Zealand, and Australia. That outcome would also seem to be borne out closer to home from the recent review of the Family Mediation Service Dolphin House District Court pilot project, where the concluded family mediation agreements saved the State an estimated €102,742. More than 90% of these cases involved people who would have been eligible for legal aid. I have no doubt that similar savings could be made in the private family law sector.

Any process that serves to promote communication between co-parents must be encouraged. As family lawyers, we have a statutory duty to advise our clients about mediation. Many of us also give advice with regard to collaborative law, but how many of us really walk the walk as well as talk the talk. We must not choose to hide from ourselves the knowledge we have. We must put our clients first and not ourselves.

I very much welcome the imminent publication of the Mediation Bill by the Minister for Justice, Equality and Defence, Alan Shatter. It will certainly increase the focus on alternative dispute resolution mechanisms and promote their use. I hope my book will inform and assist family lawyers and their clients with making informed decisions as to how to best proceed with their case. In these straitened times there is all the more reason to avail of ADR mechanisms. As family lawyers, it is time we step up to the mark and re-educate peoples’ imaginations.

As the poet Shelley once said: “The great instrument of moral good is the imagination. A man to be greatly good must imagine intensively and comprehensively. He must put himself in the place of another and many others”

* Josepha Madigan is author of Appropriate Dispute Resolution in Ireland Home