Kevin O'Higgins Solicitors

Warring couples will be forced to see a mediator

Sunday, 17 July, 2016
Mark O'Regan

Couples set for the divorce courts will soon be forced to take part in mandatory mediation as part of a radical overhaul of the family law system, the Sunday Independent has confirmed.

And it could help slash sky-high separation bills in cases where both sides have a "not-an-inch approach" to their partner.

There's also hope it might ease traumatic emotionally-charged battles over child maintenance and custody.

As latest figures show the divorce rate continuing to rise, the Department of Justice has confirmed it is planning to finalise the long-awaited Mediation Bill "as soon as possible".

It will require solicitors and barristers to advise couples to consider using mediation as a means of resolving their differences.

Experts point out specially trained mediators can help chart a way forward in even the most bitter family disputes.

Currently, separating couples who wish to part ways without going to court can seek to resolve their issues through the Family Mediation Service (FMS).

The service is free and confidential for married and non-married couples.

The idea is to try and persuade feuding partners to reach some agreement on issues such as future parenting and financial support.

Trying to forge some agreement on ownership and access to the family home is also often a crunch issue.

However, many couples can experience a huge delay in accessing mediation which, since 2011, has been under the control of the Legal Aid Board.

These delays can significantly worsen what is often a fraught situation between couples trapped in a marriage breakdown spiral, leaving them for far too long in emotional limbo.

The hope is that, through more structured counselling services, flash points will be identified much earlier.

This means if a couple does end up in the divorce courts, every effort will already have been made to arrive at some form of "working relationship" between both sides.

The solicitor involved will also be required to provide an estimate of costs in the event of court proceedings as well as a client being unsuccessful in their legal demands.

Any person commencing civil litigation must provide the court with a written statement confirming their solicitor advised on the possible use of mediation.

Patricia Mallon, a partner with Eoin Daly Mallon solicitors in Cork, said once the bill is enacted, it will provide a "viable alternative" for couples.

"More and more people are looking for mediation - the court process is seen as something that has to be done if everything else fails.

"The mediator's role is to assist in finding solutions to blockages that arise and to try and neutralise things."

Studies in Canada and Australia show that mandatory counselling and mediation have reduced the number of cases which end up as part of costly court litigation by 50pc.

The Mediators' Institute of Ireland (MII) has estimated that the relevant legal costs of civil cases amounted to €1.17bn in 2011. Sabine Walsh, president of the MII, pointed to the cost savings that have been identified by Tom Ward, chief clerk of the Dublin Circuit and District Courts.

Ms Ward reported that a pilot mediation programme that ended in August 2013 resulted in 831 concluded agreements - and annual savings of €119,476 in courts service costs, plus €225,164 in legal and board costs.

It comes as Fine Gael TD Josepha Madigan introduced a private members' bill in the Dail last week aimed at halving the amount of time couples must be separated before their marriage is legally dissolved.

She believes the waiting time for a divorce should be brought into line with those of other similar jurisdictions, such as the UK.

Deputy Madigan says nearly a quarter of a million people have experienced a marriage breakdown and the present laws are out of date. Under existing legislation, couples must have been living apart for four out of the preceding five years before they can file a divorce application.

Meanwhile, latest figures show the divorce rate continuing to rise.

Some 2,815 divorce orders were granted in 2011. By 2015, this figure had soared to 3,291.

Over the course of the past 20 years, the number of couples calling time on their relationship reached its peak in 2007, when 3,684 divorce orders were issued by the courts.

However, corresponding figures for the number of judicial separation orders fell over the same period. Some 1,029 judicial separations were granted in 2011 - this compares to 832 in 2015.

Sunday Independent