Legal Aid Board is keen to move mediation into the mainstream

The board is considering ways to actively promote the use of mediation and has organised training for some solicitors, writes…

The board is considering ways to actively promote the use of mediation and has organised training for some solicitors, writes ANNE COLLEY

Mediation is clearly “a good thing” in principle, as has been evidenced in recent times by the endorsement of among others, the Law Reform Commission, the Chief Justice and the engagement of many professionals, both legal and others, in mediation training in the areas of civil, commercial and family law.

Mr Justice John Murray recommended the promotion of mediation as a means of resolving disputes, particularly family law disputes, and crucially, noted that this was properly a governmental task, for the benefit of society as a whole.

Mr Justice Peter Kelly in the Commercial Court has been actively promoting mediation as a means of settling commercial disputes both speedily and effectively for a number of years now. A mediated agreement undoubtedly provides the platform for continuing a family, business, sporting or local relationship rather than ending it in a fractious or distressed manner, which is so often the result of a court fought battle.


The Law Reform Commission in its 1996 report on the Family Law Courts advocated a shift in emphasis away from the adversarial process and towards mediation, and reiterated these proposals, along with others, in its Consultation Paper on Alternative Dispute Resolution in 2008.

It is now almost 15 years since the initial report, which made very important and progressive proposals, few of which have been implemented. How many lives of people involved in family disputes could have been made less traumatic if its proposals on mediation had been enthusiastically seized upon by those responsible, and legislated for during that period?

The Legal Aid Board has introduced best practice guidelines for its solicitors to promote the dispute resolution options available, including marriage guidance counselling, mediation, negotiated separation, the collaborative process and other non-court based ways of resolving the matter. Clients are advised of the element of control over the outcome they will retain, and the potential avoidance of damage to ongoing relationships that can follow a court-based/ court-imposed resolution of family disputes, especially where children are involved.

The board has organised training in mediation skills for some of its own solicitors on a pilot basis, and is actively looking at equipping them to determine cases suitable for mediation, and to negotiate solutions on behalf of their clients that are likely to be sustainable in the longer term.

The Family Mediation Service (FMS) operates on a widespread basis throughout the country, offering separating couples the possibility of resolving their disputes relatively amicably and, if necessary, to have any agreement that is reached implemented by means of a court order. It is clear that there is enormous scope for development of the service on a more targeted basis, which might be either within the service’s present context or in one that could be more integrated into the legal system it is designed to assist.

Studies of the work of the family law courts have found that only 3 to 4 per cent of all those seeking resolution of their family disputes in the courts use the FMS. This is an intolerable under-use of a State-sponsored service, which contributes to the greater anxiety of the parties involved, the slowing up of the courts system and ongoing psychological and physical suffering for some parties, which may ultimately increase costs to the State.

Some other common law jurisdictions engage “duty mediators” in court on given days, available either to provide mediation immediately to couples appearing in court, or to provide couples with information on the process. Still other jurisdictions require that suitable couples or applicants may not commence proceedings without attending an information session on mediation, or actually presenting themselves for mediation. In Germany they have recently enacted a law that provides for diverting couples to mediation prior to proceedings being commenced.

Some Australian legal aid State providers may require an applicant for aid to participate in alternative dispute resolution (ADR), for which the expenses may be paid. In Victoria, also in Australia, it is a requirement to use ADR procedures before bringing a matter to court in some areas of law. In family law, counselling has to be undertaken prior to the commencement of proceedings.

In contrast, the only obligation in Ireland on a separating couple is the requirement to be advised by their solicitor of the existence of mediation and other services.

The Legal Aid Board is considering ways to actively promote the use of mediation. A natural synergy exists between the work of the board and the work of the FMS, having a common objective, a partly shared client base and an existing relationship.

In particular, we are exploring a joint approach to the integration of services, perhaps with that of the Courts Service, that we hope will be the subject of a pilot project operating out of Dolphin House, the Family District Courts building in central Dublin, where we already have a presence.

The board’s role could be crucial in moving ADR in family disputes into the mainstream. A saving in court resources, both personnel and financial, could be made, at least in the longer term. Public policy changes, including legislative change, will be needed to make available the necessary structures and resources.

Anne Colley is chairwoman of the Legal Aid Board