A family mediation service that works but has yet to be approved by courts

A new family mediation process has a 95 per cent success rate so far and the encouragement of a judge, but has failed to get approval from the Courts Service to display its leaflets in courthouses.

The Waterford Institute of Technology Family Justice Mediation pilot takes a different approach to mediation, according to Dr Róisín O'Shea, the project's principal investigator.

It produces quick, short-term agreements between couples on issues including custody, access, guardianship and maintenance, out of which longer-term agreements can be reached within a specified time. The aim is to reduce long family law lists in the District Courts, and reduce stress and costs associated with family law proceedings.

Among the differences between the WIT pilot model and traditional family mediation is that two mediators are involved, a man and a woman, so that there cannot be a claim of gender bias.

O’Shea says when she began mediation, as part of her PhD research at WIT, she felt she had an uphill battle to prove to the men who attended that she was not on the side of women. She introduced a male and a female mediator to short-circuit the problem, and it brought about a “complete sea-change” in the men. They opened up, initially only talking directly to the male mediator, but then “settling down”.

“Irish men say they don’t want mediation because it’s counselling, and that’s not far off the mark for traditional mediation, but we are absolutely not that,” she says.

Traditional Irish family mediation is unique to Ireland, O'Shea says. It's based in a Catholic ethos and comes from a family therapy perspective, with no set timelines, agenda, or focus on getting to an agreement. The WIT model is more pragmatic, and solution-orientated.

Parents don’t decide to inflict pain on their children, but when there are rows over issues such as access and custody, that is what can happen.

“We need a solution fast; a short, fast parenting agreement will stop the war immediately,” O’Shea says.

When initially working with couples, they do not put both parties in the same room; O’Shea says when they did that, the results were not productive. Seeing them individually means the parties can put across their own side fully, without getting into an argument. They initially make a six-week agreement and are only brought together when they are ready to make a longer-term agreement.

“By then they both individually respect the mediators and don’t kick off,” she says.

If a case is already in the courts system, the parties’ solicitors are involved in the process and an agreement is written up and approved by a judge. If the case has not gone to court, the agreement signed by both parties becomes legally binding under contract law.

O’Shea is an advocate of mandatory mediation, though she recognises it’s not possible to mandate an outcome.

“What we do find is if people attend, they do make some progress,” she says.

The process does not require that both parties are willingly in attendance. Many come along unwillingly, O’Shea says, but that does not prevent them from finding solutions.

“We keep the pressure on to keep the process moving,” she says.

Parental alienation

They have also seen cases of parental alienation, where one parent has turned a child or children against the other parent. O’Shea says when people go into conflict they often naturally “rally the troops” and, whether consciously or unconsciously, they polarise children.

“We make it clear when we start the process that we prioritise children and put the best interests of the child at the forefront,” she says. They also ask to see the children before a longer-term agreement is being signed by their parents.

“We test it to make sure parents make arrangements that work for the lives of their children.”

The project has garnered some international attention, including in Canada, and O'Shea and Dr Sinéad Conneely, law lecturer and project co-ordinator at WIT, have also been invited to present on the pilot project at the International Shared Parenting Conference in Bonn in December.

Initiated in October 2013, the project focussed initially in Kilkenny and Waterford and has four WIT volunteers and six mediators. Mediation is provided at the Newpark Close Family Resource Centre in Kilkenny. Once the pilot has concluded it is hoped that family resource centres around the country will be able to offer the process.

Not-for-profit

It is run on a not-for-profit basis, it is self-financing and charges on a means-tested basis, with most clients paying €25 an hour. O’Shea says the experience in Canadian courts was that free mediation was perceived to have no value and mediators were “caught up in multiple sessions where clients came repeatedly and didn’t want to move towards an agreement”. Once charges were introduced, their outcomes improved immediately, she says.

With the support of Judge Colin Daly, who has encouraged the project, they had hoped to roll out the pilot project to couples in Carlow, Wexford and Tipperary, up to July 2016. With that in mind, they contacted the Courts Service, but were refused permission to display leaflets or promote the service within the confines of courthouses. In a letter, the Courts Service raised concerns about the fees charged. It highlighted the Family Mediation Service, which is available in some courts and is free of charge. It also noted the involvement of Arc Mediation, a private company of O'Shea's, that administers the project on a voluntary basis.

“Where private companies or organisations are involved, the Courts Service cannot or indeed cannot be seen to provide preferential or special treatment to commercial or semi-commercial entities,” the letter said.

“We’re very disappointed,” O’Shea says. “This is a WIT project, how is that private?” For more information on the project, call 087-3457569 or email Dr Sinéad Conneely sconneely@wit.ie