Mediation, an alternative to the divorce court

The recent Divorced Ireland series (click here to read full series) in the Irish Times has highlighted the challenges people face in dealing with separation, particularly when children are involved. Faced with the breakdown of a marriage or long-term relationship, many people see court as being the only avenue open to them. Some who embark on a legal process find themselves communicating only through solicitors and working against each other, rather than together.

Mediation offers an alternative to this. In family mediation, trained professional mediators assist couples in negotiating the profound changes their family is going through, with a view to reaching an agreement that will work for everyone.

Mediation provides a safe space for both parties to identify and talk about what they want and what they feel would be in everyone’s best interests. It is not a place to revisit old arguments or establish why a relationship ended, but to find a way forward that meets the needs of all members of the family.

Couples have the opportunity to meet the mediator individually and together, and to work through issues that are important to them, including, but not limited to, finances, children’s arrangements, parenting, and property. Issues that are of enormous importance to the parties, but outside the scope of court proceedings, such as navigating new relationships, can also be discussed in mediation.

Many couples find that mediation offers them the opportunity not only to agree the terms of their separation, but to learn new communication skills that will help them work effectively as separated co-parents. The transition from a loving relationship to separated co-parenthood is a challenging one, but one that mediators are very familiar with. In offering an impartial, non-judgmental forum for discussion, and referral to other support services if necessary, mediation can make this transition easier.

Children and younger family members can also bring their voices into mediation. Some mediators are trained in consulting directly with children and can, with their parents’ approval, have a discussion with the child or children concerned. The mediator will then communicate the concerns and desires of the child or children to the parents.

The child will not be asked to make decisions or choose between parents or suggested living arrangements. It remains the parents who make the decisions; however, the needs and, often, fears of children can be brought into the parents’ decision-making in this way.

When couples reach an agreement in mediation, this can be converted into a legally binding separation agreement with the assistance of their solicitors, or can be approved by a court to form the basis of an order for judicial separation or divorce.

Many people see mediation as a way of avoiding having to deal with lawyers altogether. This is not the case. The mediator plays an impartial role in the process and cannot therefore give any specific legal advice. Both parties will need to take separate, independent legal advice to ensure they are aware of their rights and obligations, and so that they can have their agreement legally formalised. This process will still cost significantly less, and be considerably quicker than contested legal proceedings.

A contested separation or divorce can cost anything from €8,000; mediation can cost less than €1,000, plus the cost of legal formalisation. A mediation pilot project running in the District Family Court in Dublin saved the state over €100,000 in legal fees in its first year of operation. Many solicitors will refer clients to mediation at first instance, and many more will do so once new legal provisions relating to solicitors obligations to promote alternatives to court are enacted.

Family mediation can be accessed at no cost through the State funded Family Mediation Service www.legalaidboard.ie or privately. Private mediators will usually charge per hour or per session. The profession remains unregulated in Ireland, so to find a suitably qualified mediator, contact the Mediator's Institute of Ireland www.themii.ie.

Sabine Walsh is an accredited mediator, MII Specialist Family Liaison