Dr Roisin O’ Shea is an Irish Research Council Scholar and Senior Partner in Arc Mediation. She discussed her views on mandatory mediation on RTE 1, Sean O’ Rourke’s show 13/08/2014 Her empirical research ‘Judicial Separation & Divorce in the Circuit Court in Ireland’ released in June 2014 is now available at http://repository.wit.ie/2825/
Mandatory mediation has been a hot topic for over 14 years internationally, and during the course of my PhD research, which was funded by the State, I looked at how mandatory mediation operates, and whether Ireland should adopt a similar approach. Chapter 17 of my 145,00 word thesis sets out my recommended reforms which include mandatory information programmes, mandatory child & parent programmes and mandatory mediation. I welcome Minister Frances Fitzgerald’s stated intention this week, in her message to the Legal Aid Board, to provide a statutory framework for mandatory mediation in the Mediation Bill which is currently being prepared by her Department, as it follows international reforms which indicate very high success rates and user satisfaction where mediation is mandated.
It is recognised that mediation can be beneficial even where parties are reluctant to use mediation and are ordered to attend. As stated by Mr. Justice Lightman, a U.K. judge, in a2007 EU report, “parties who enter the mediation process unwillingly often can become infected with the conciliatory spirit and settle”.
Australia was one of the fore-runners to initiate mandatory mediation, commencing in 2006. 94% of cases before the Family Courts were finalised by agreement even where legal proceedings were initiated, and it became clear that dispute resolution mechanisms such as mediation were far more effective than the litigation process. Where there are matters in dispute relating to children, parents in Australia must attend FDR (Family Dispute Resolution) in any matters relating to children. In New Zealand a judge may refer parents to free counselling or a free mediation conference which is held by a judge other than the trial judge. In the Los Angeles Superior Family Courts mediation is mandatory where there is a custody dispute or any dispute concerning children post the break-down of a relationship or marriage, and any family law case can be referred by a judge to mediation. In the family courts in Ontario Canada, everyone who wants to file a family law application must first attend free mandatory information programmes. On-site mediation is free if you have a case listed that day and if the disputed matters will take two hours or less. Subsidised mediation is also provided by the State where parties can be referred by their solicitors or a judge or decide themselves to attend.
So should we worry if mediation is mandated in Ireland?
I would argue that the benefits far outweigh any arguments against this approach. Parents should be the ones to determine the parenting arrangements for their children, and in mediation the State legal process steps away, and parents are supported by a skilled professional to make their own decisions. While attending mediation can be mandated, no outcome can be forced, so the parents retain control of decision making and always retain the right to bring the matter before a judge if no amicable outcome is possible. It is pure madness to encourage parents to engage in lengthy and exorbitantly costly litigation, where eventually a judge makes decisions under severe time pressures, and without any in-depth knowledge of the parents and the needs of their children.
Marriage break-down in Ireland stands at around 9.7% which is low compared to other European countries, but it has increased 150% in the last decade and continues to increase. Where do we go first when our marriage ends? Like most people I went to see a solicitor. At this early stage solicitors play a very important role, firstly by giving clarity about their clients legal rights, and secondly by explaining mediation and encouraging their clients to attend mediation or any dispute resolution mechanism. Those in mediation should have the benefit of legal advice before and during mediation, and crucially before they sign any mediated outcome. The mediation process works best where participants have independent legal advice and negotiate from a position of knowledge. Those who cannot afford a solicitor or private mediation should have access to means tested State support services such as counselling and mediation and be assisted to make decisions in the best interests of their children.
The Mediation Bill is a long time coming, but when it does we will begin the vital process of regulating what is currently an unregulated profession. We need statutory frameworks to determine the training standards required for mediators, and there must be clear blue water between that body and any commercial delivery of mandatory training requirements. There is international consensus that the development of parenting plans in mediation are best assisted by mental health professionals trained as mediators, and legally competent mediators should assist with asset division and financial provision. Once we set the required standards and everyone knows what to expect of mediation, then mandatory mediation will work effectively and more people will be willing to engage in a process that is proven to be a timely and cost-effective forum for parents to determine their own new path post the end of their relationship.