WAYS OF settling disputes outside of court proceedings need to be put on a statutory footing, according to a leading family lawyer. Geoffrey Shannon, author and solicitor, said there was a need for a legal framework for alternative dispute resolution.
He was speaking at a conference on the subject jointly organised by the Law Society and the Legal Aid Board in Dublin yesterday. He said the existing reference to mediation in family law was not enough. All forms of alternative dispute resolution (ADR), mediation, collaborative law and structured negotiation, needed to be outlined so that people knew what their options were.
"We need a Family Law (Miscellaneous Provisions) Bill to promote ADR and put it into a proper structure," he told The Irish Times. He pointed out that the Attorney General, in opening the conference, had said that ADR mechanisms were there. "We want them framed in statute and then we can all move forward," he said.
Judge Petria McDonnell, who has practised in the Family Circuit Court most of the time since her appointment as a judge in July last year, told the conference that the most difficult issues seemed to be communication and trust between the parties.
"Men in particular are angered by the initial letter that is written," she said. "I would ask practitioners to consider that letter. There are also problems with communication in relation to access. Lawyers can and should help there."
In the adversarial contest in court, "I sometimes feel there is more conflict between the solicitors than the parties", she said. "Put yourself in the shoes of the other party and discuss with your client. Be neutral. I am often struck by how generous the parties are," the judge said.
Urging the use of alternative dispute resolution, she said that in a more complex world where property was involved the parties would need legal advice, but mediators did not have to be lawyers.
Polly Phillimore, of the Family Mediation Service, said that mediation was not a catch-all solution. She stressed that it should not be confused with counselling. She said it was suitable for many situations, especially where children were involved, and that people had choices now, including collaborative law.
Patricia Mallon, a collaborative practitioner from Cork, said collaborating in family law disputes was centred on the client, and was a team-based approach, drawing in other professionals like child specialists, counsellors and financial advisers when necessary.
She said that it was central to this model that, if it failed and the clients then went down the litigation route, the lawyers withdrew from the case and the parties had to instruct new lawyers.
This was essential for the creation of the trust that was at the heart of the process, she said.
Kevin Liston, a former solicitor with the Legal Aid Board and the author of a book on structured family law negotiations, said negotiations could be used to settle family law disputes, but they needed to not start from a litigation premise. The litigation route was often taken because it provided the necessary negotiating framework.
The president of the Law Society, James McGuill, said flaws in the court system tended to make problems intractable.