There should be no attempt to railroad couples into mediation as a condition of receiving legal aid, an article in the current Irish Law Times has said. This was a temptation because mediated settlements were usually less costly than those involving litigation, it said.
Ms Sinead Conneely said that under recent legislation in the UK, a person was not granted legal aid to pursue litigation unless he or she had attended at least one meeting with a mediator. This could endanger the central tenet of mediation practice, she wrote, which was voluntariness.
The family mediation service in Ireland has never been put on a statutory basis, although the Family Law (Divorce) Act of 1996 does demand that a solicitor discusses with a client the possibility of mediation before embarking on litigation.
There are many advantages to mediation, she said, including reduced costs to either the individual or the State, if free legal was involved, a greater likelihood of settlements being adhered to, and a reduction in damaging conflict between the individuals concerned.
It might be tempting, therefore, for the State to try to encourage people to attend mediation as a first step, but "the legal aid candidate should not be presented with a situation whereby availability of legal aid is premised on attendance at mediation", according to Ms Conneely.
"The pressure to succumb to an agreement which is not in the interests of one or the other party is increased, and more worryingly the very basis of mediation assumptions is undermined." Instead, an increase in referrals could be brought about by improved public information campaigns and fostering the good will of solicitors.