Reframing the mediation debate in Irish all-issues divorce disputes: from mediation vs. litigation to mediation and litigation

Abstract

Mediation currently plays a minor role in the Irish family justice system, yet a policy consensus exists that more couples should be encouraged to mediate and that increased rates of mediation will reduce the numbers seeking redress through the courts. The   Mediation Act 2017 adopts this position, assuming that the provision of information on mediation will increase uptake and that mediation offers an alternative to litigation for most civil disputes. This article reviews attempts in Ireland, England and Wales to encourage family disputants to mediate, identifying weaknesses in the information strategy. It also examines the legal framework governing all-issues divorce and dissolution in Ireland, pointing to the limited potential for mediation to act as an alternative to litigation. It concludes by arguing that policy focus must shift away from encouraging mediation as an alternative to litigation towards more nuanced understanding of mediation as a support to court based dispute resolution.

Keywords:

• Mediation
• Ireland
• divorce

Notes

1. Minister for Justice and (Deputy Frances Fitzgerald) 941 Dáil Debates 10494/17, 2 March 2017.

2. Minister for Justice (Deputy Frances Fitzgerald), response to parliamentary question 22 June 2016.

3. Figures from Irish Mediators Institute website www.imi.ie, accessed 8 May 2017. There is no requirement for mediators to register with the IMI in order to practice and although the Legal Aid Board has no specific policy requiring its mediators to be registered it does pay a registration fee for all mediators employed by it. Personal correspondence between author and Legal Aid Board 13 April 2017.

4. The term ‘all-issues divorce’ is used for convenience and includes applications for judicial separation, dissolution of civil partnership and applications for cohabitants relief under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Civil Partnership was available in Ireland between 2011 and 2015, for an account of its demise see Ryan (2016).

5. Section 40, Civil Liability and Courts Act 2004 as amended by Courts and Civil Law (Miscellaneous Provisions) Act 2013.

6. Circuit Court Rules, Order 59, S.I. No 312 of 2007 as amended require the service by the applicant of a Civil Bill with affidavit of means and affidavit of welfare in response to which the respondent files an appearance, defence and their own affidavit of means and welfare. The process can be shortened by the filing of a motion for judgement on consent following exchange of affidavits.