Lenihan backs collaborative approach in family cases

Speaking at the closing session of the second European conference on collaborative law in Cork at the weekend, Brian Lenihan …

Speaking at the closing session of the second European conference on collaborative law in Cork at the weekend, Brian Lenihan said he had sought a detailed submission from the Association of Collaborative Practitioners on how family law legislation could be amended to include it.

He said the issue of mediation loomed large when divorce was introduced in 1996, and this was recognised in legislation.

"I believe collaborative family law sits well with this policy. Like mediation, it is an inherently flexible process built on co-operation and openness. This co-operative approach to negotiating and settling the issues arising from a family separation without going to court is one we should all encourage," he said.

"Collaboration encourages solution to difficulties which might otherwise entail lengthy and costly court proceedings. The critical feature of this form of dispute resolution is that, having agreed not to take part in any litigation that may occur if no agreement is reached, lawyers focus on finding a settlement, rather than preparing for court proceedings. All parties, including the legal representatives, focus on collectively creating an equitable agreement.

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"This strikes me as a useful model for future progress and I am pleased to hear that an ever-growing cohort of solicitors is now trained as collaborative practitioners," he said. Collaborative law could be used in many other contexts apart from family law, he added. "The best way of reducing costs is by settling cases as quickly as possible."

Mr Lenihan also said that there was a need for a more consistent appeal system in family law. At the moment a case that was appealed from the Circuit Court to the High Court had a full fresh hearing. He said he was revisiting the civil appeal system at the moment.

While there had been a dearth of information about the operation of family law in the courts, he said the Courts Service family law reporting project was beginning to make a major contribution."The project is shedding much-needed light on the family law area and has assisted in debunking many of the myths which pertain, particularly in relation to disputes on child custody and access," he said.

"There is an undeniably strong case for encouraging alternatives to litigation to resolve disputes arising from family breakdown. Agreements reached by the spouses themselves, for example through collaboration, are more likely to be respected than court-ordered resolutions. Furthermore, and this is of particular importance where children are concerned, it is also more likely that the spouses will find it easier to maintain good relations during the fraught process involved in attempting to resolve their difficulties and that these good relations will continue long after the issues in dispute have been resolved," he said.

While collaborative law would not be possible in many cases, it was a desirable alternative where there was "a willingness on both sides to seek a fair solution in a constructive and respectful manner".