Mediation is a structured process whereby two or more parties to a dispute, attempt to reach an agreement on the settlement of their dispute with the assistance of a mediator. A mediator is any third person who is asked to conduct mediation in an effective, impartial and competent way. When people hear the term mediation, it often refers to a service to help couples who have decided to separate or divorce, or who have already separated, to negotiate their own terms of agreement, while addressing the needs and interests of all involved. Mediation allows people to make their own decisions.
Mediation can be signed off on by couples confirming that they have tried to resolve their differences, but that it had failed before engaging in the legal process. This is not ideal as it puts pressure on the court system to deal with the majority of separations. If mediation were monitored more carefully with a mandatory amount of sessions in a structured way, it would speed up the legal process and perhaps deal with separation in a more amicable fashion.
Instead of the separation process taking years, as it does in many cases, implementing meaningful mediation would significantly reduce the time taken for families to go through the process. By avoiding having to go to court, the length of time for separations can be reduced by years. This has many positive implications. Parents and children can continue with their lives in a more structured manner in which they know their family separation status and are not awaiting court decisions.
Mediation where by the procedure is undertaken adequately can result in favourable outcomes for all involved. As well as assets being divided and custody agreements being made couples can amicably sort out their affairs in a reasonable manner. This could result in less distress all around including for children who are invariably affected by their parent’s separation.
Solicitors have a key role in mediation. Most family law solicitors would regard mediation as an effective means of dealing with separating families. Perhaps the fact that the law requires couples to live apart 4 out of the previous 5 years before divorcing, is perhaps adding to the lack lustre almost indifferent approach towards mediation, not to mention the non-implementation of the Mediation Bill. This Mediation Bill was listed in the 2011 Programme for Government and the Draft General Scheme of Mediation was published in 2012. While there would appear to be consensus that mediation is the way forward, obviously things are not in a critical enough point in Irish society to necessitate the implementation of the Bill and the creation of the necessary structures. It is an unusual position to adopt towards families in distress which is perhaps not helped by the “In camera” rule, where the only people who really know how the system works are those who have been through it and by then mediation is too late for them.