Collaborative Law & Mediation

– YOU ASK WE ANSWER –

ACounselling & Mediation: It is imperative that all options are considered prior to embarking on a course towards separation. It is incumbent on each individual to see whether relationship difficulties can be overcome. There are a number of accredited relationship counselling agencies that may assist in facilitating reconciliation. Where reconciliation is unattainable these agencies may also assist a couple in reaching a decision on separation. Contact details for some of these services are attached. Where reconciliation is unattainable every effort should be made to negotiate a sensible arrangement for the family. This can be done either through solicitors or through mediation, again see contact details attached. The legislation specifically prohibits introduction in Court of matters discussed at marriage counselling or mediation.

The mediation process encourages a separating couple to work out mutually acceptable arrangements on parenting the children, financial support, the family home, other property and matters relating to separation. It is the mediator’s role to guide the couple towards a solution on each issue in an unbiased manner. It is recommended that each person consult with his or her own solicitor throughout the mediation process.

ACollaborative law is an alternative method of resolving family disputes. The aim is to find a fair and equitable agreement for the couple based on reasoned judgement and realistic aspirations. It is geared towards the future and ongoing wellbeing of the family as a whole. The essence of the process is that it is in the best interests of the participants and their families to try to resolve these disputes in a non-confrontational way. This is achieved by way of informal discussions with each party ensuring their direct influence on the outcome.

The ultimate aim is to avoid the use of Court in family law cases. If either party chooses or decides to proceed to Court then the collaborative process ends. Each party must retain his or her own trained collaborative lawyer to advise and assist in negotiating an agreement on all issues. At the outset, the clients and the solicitors sign a binding agreement called a “participation agreement” where they agree at an early stage to make full and voluntary disclosure of all documents and information that relate to the issues.

The process depends on the cooperation of all of the participants and the full and frank disclosure of information. This is a new process which is at an early stage of development in the Irish jurisdiction however, if you are interested in pursuing collaborative law as an alternative dispute resolution mechanism please discuss the matter further with Jennifer O’Brien. Jennifer O’Brien is a fully trained collaborative lawyer and a member of the Association of Collaborative Practitioners. (See www.acp.ie for further information).

AWhere a couple reside separate and apart from each other under a casual, informal or ad hoc arrangement. Separations often commence in this manner with neither party wishing to formalise the arrangement. At some point in time the terms of separation require a formal legal framework, setting out the legal rights and responsibilities of both parties.

AFollowing exchange of financial and other information the terms of separation may be negotiated by the parties through their solicitors or through the process of mediation. For this approach to work both parties must be willing to deal with the matter on a fair and reasonable basis. Procedurally there is a difficulty in dealing with pension and certain taxation matters on foot of a deed of separation. Such matters can also be dealt with through the Courts on foot of Consent Orders, where agreement is reached.