Legal Services Bill 2011

Many mediators are presently looking at the implications of the proposed Legal Services Bill which will be published shortly.

It appears likely that the bill if subsequently enacted, will have substantial and dramatic consequences for the way lawyers do business in Ireland.

The question remains to be seen as to what impact, if any, the proposed legislation will have on the work of mediators, many of whom are also lawyers. The president of the Law Society of Ireland today outlined in an e-mail to practitioners the small level of consultation the Society have enjoyed with the Department of Justice in the lead up to the publication of the bill.

Many will argue that in the present recession Barristers are been treated unfairly, as they cannot solicit clients directly and are reliant for the greater part on Solicitors who pass on the work. As the recession deepened, less and less cases were been referred to counsel, who were in some cases seen by solicitors as an additional or surplus cost in cases. The mediation services bill will level the playing field somewhat and allow Barristers similar access to clients as solicitors.

By contrast, mediation has offered lawyers, both Barristers and Solicitors alike a chance to experience how the legal dispute resolution system may work going forward. Firstly costs in mediation are set against scales (usually time rated). Secondly, parity of billing. In cases of comediation both Solicitors and Barristers are paid the same fee.

In many ways, the legal system can learn from private client mediation practice as to how client billing will work going forward.

How Long Does Mediation Take?

Each mediation is unique. Different mediations will require different time-frames to complete. For many couples going through a separation/divorce, where a substantial amount of issues need to be resolved, the average process can take seven to nine joint sessions to conclude. The average session will last for an hour and a half in length.

Where only one issue such as access or maintenance needs to be resolved on it’s own, the process can take five joint sessions on average to conclude.

Depending on how much work the parties need to complete the process can take from several weeks to several months. The parties dictate the frequency of the sessions required to complete the work in as efficient a manner as is possible.

Parties are encouraged to take breaks between sessions and either party can call a time-out at any point in the process to take a break.

Mediations can be completed in one day or over several days depending on the number of issues that need to be addressed. For Divorce and separation cases many couples will book two days back to back at the start of the mediation process.

The Chart Below Shows How the Process is Structured in Comediation where two mediators are working with the couple;

  • Agree Mediation

At the beginning of the process, one or other party contacts FMI to find out about the process. The contacting party will ask the other party to contact FMI to find out about mediation.

  • Information Session

Where both parties are in agreement FMI set up an information session for the couple to find out about the process. After the information session, the parties can sign the “Agreement to Mediate” and enter the process.

  • Single Sessions

Each party will get a chance on their own and in the absence of the other party to meet with the mediators in private to discuss matters before going into any joint sessions with the other party and the mediators.

  • Joint Sessions

The vast majority of mediations are conducted with both parties and the mediators present at the same time. However, on occasion after the commencement of joint sessions either the mediators or the parties can elect for further single sessions depending on the circumstances.

  • Agreement

When the process is concluded and the parties have reached an understanding they will have an opportunity to take advice from their advisors before completing the “Memorandum of Understanding” or mediated agreement. This is not a legally binding document but can be made legally binding through the parties legal advisors.

Why Mediation is a better alternative to contested court proceedings

[http://www.youtube.com/watch?v=jMY24w7OZ9w]

  • Research shows better long-term outcomes for parents and children where the parties mediated.
  • More parties are satisfied with the divorce process where mediation is used to agree terms.

1.1   Contested Court Proceedings are not good for parties, for numerous reasons;-

Amongst other reasons;-

  • Court is based on an adversarial model.
  • The parties lose control of the outcome.
  • It is costly.
  • It does not foster good communication.
  • It introduces a philosophy of brinkmanship into disputes.
  • It is more time efficient.

1.2   What do mediators do?

Mediators talks about alternatives and options to settle

Mediator makes sure you have all the necessary information you need to make informed decisions in the mediation process.

It is a process based on transparency and disclosure.

1.3   Mediators use tools;-

  • -Best case and worse case scenarios
  • -Using a flipchart to view options
  • -Asking each party to see from the other parties point of view.
  • -Positive and constructive dialogue.

1.4   Mediation:-

Allows the parties to create an agreement that works for both them and their children.

Allows the parties to take their time and not be pressurised by the courts timetable.

Allows the parties to explore all potential options

Facilitates the parties in discussing what they believe to be important in a serious and concise manner.

1.5   Mediation:-

Is designed to avoid the courts and excessive use of lawyers.

Allows couples to design their own unique agreements or court orders where appropriate

Promotes healthy dialogue between you and your spouse with the assistance of mediators

Is less confrontational than contested divorce court proceedings.

Mediation is quicker than contested court proceedings

You have more input into your children’s overall situation in the mediation process.

You know what is best for your children. The mediation process affirms that point.

Collaborative Law versus Mediation

Both Collaborative law and mediation offer the client a better alternative to protracted and costly court proceedings.

Whereas collaborative law has provided a new direction in terms of appropriate dispute resolution (ADR) the process has obvious cost implications where two lawyers are involved as opposed to two mediators. This has the effect of increasing legal costs by a certain amount.

However, where compared as an alternative to contested legal proceedings the cost savings are substantial.

Furthermore, for some couples it is not possible to sit face-to-face toresolve a mediated understanding. Mediation can be conducted with both parties in separate rooms whereby the mediator travels between the two separate rooms until such time as an agreement is reached. For some separating couples the prospect of sitting at a table together can be too much. The collaborative law process is largely focused on keeping both parties together for the majority of the discussions.

If the collaborative process is not fruitful the parties will lose the representation of their respective solicitors who must withdraw from the process if it does not succeed. By virtue of the agreement signed by the parties at the start of collaborative law process, they must now instruct new solicitors where the previous process has failed. This vehicle was incorporated into the collaborative process to place a clear incentive in the negotiations for the respective lawyers to obtain a settlement for the clients where possible and practicable. The benefits of colaborative law over the standard litigation model are immense.

The end of the relationship can be a particularly traumatic event for both the separating couple and their immediate families. Accordingly, it is important that the correct decisions are made at a very early stage to ensure that the separation does not descend into all-out fighting. Family mediation gives the parties the freedom to control their own destiny in a positive and caring environment.

Under the law judges are restrained in terms of the types of decision that they can make under the family law legislation. Parties working with a mediator have unlimited opportunities and possibilities at their disposal to allow them to reach a mediated agreement.

Mediation allows the separating couple the option of completing their own divorce or DIY divorce. Family Mediation Ireland recommends that even where parties have reached their own clear terms of agreement they should obtain legal advice on this agreement before making the agreement legally binding by a deed of separation or court order.

An agreement concluded through the collaborative law process or the mediation process will be much more effective and beneficial for the parties involved and their families.

Public and Private Groups Interested in Mediation

The following professions have shown or promoted the use of mediation in resolving disputes.

G.Ps,

Hospital/Clinical Consultants,

Financial Institutions to include Banks, Building Societies and Credit Unions.

Voluntary organisations,

Social Care Workers,

Social Welfare Officers,

Community Health Workers,

Solicitors,

Members of an Garda Siochana,

Citizens Information Centres.

Can Mediation Help?

Many people ask us why should they choose mediation over other alternatives. Some people believe that their first port of call should be a solicitor. Other people suggest that the best port of call is a DIY or managed divorce service.

There is no one specific answer as to which is the best,All have their pro’s and con’s and the one you choose should match your individual requirements.

We tell couples that come to mediation that they are seeking the ‘VIP ‘treatment. Mediation is for couples who are seeking to agree the terms of their separation or divorce in a Voluntary, Impartial and Private environment.

Mediation is a safe environment within which to have discussions about the future with the assistance of trained professionals who are focused on helping you reach your own solutions to your problems. The mediation environment is very future focused and proactive. Mediators are trained to help parties in an efficient manner reach a solution to matters that require agreement.

Clients have told that initially they decided to avoid mediation because they felt the other party was too angry or too headstrong. They were pleasantly surprised that they managed to reach agreement in mediation and could not understand how they achieved this despite the other person being so difficult.

In mediation where you are using co-mediators to deal with a dispute the playing pitch is levelled. People have a chance to make their point and have their say without the other person interrupting. The mediators control the process so that it becomes possible to ask hard questions without the other person becoming difficult or obstreperous.

This means that mediation is possible even where you feel that your ex-partner or ex-spouse is headstrong or belligerent. Obviously where there is an immediate threat of domestic abuse mediation should not take place. If there has been a history of domestic abuse in the past the mediators will have a discussion with you in the private individual sessions before any joint mediation sessions take place. It is possible to conduct family mediations with the parties being separate and apart into different rooms. However, the ideal mediation scenario involves both parties being together for most of if not some of the process.

The mediation has been finalised and an agreement has been reached the written agreement drawn up by the can be taken to their lawyers who canmake the agreements legally binding. For married couples the terms agreed in mediation can go on to form part of the divorce order concluded before the courts.

If couples are not married the terms of the mediation agreement can go on to dictate what arrangements they live by going forward.

Where can mediation help me?

  • If I seeking to agree the terms of the divorce
  • If I am seeking to agree the terms of a separation
  • If I am seeking to divide the marital assets with my partner
  • If I’m seeking to agree child custody or child access arrangements
  • If I am seeking to agree financial provision maintenance or child support with my partner
  • If I’m seeking to agree access arrangements between grandparents and the children
  • If I’m seeking to resolve a family dispute with siblings are other family members
  • If I’m seeking to agree pension provisions and arrangements with my partner

What are the advantages of mediation?

Mediation saves time and money for people going through the separation or divorce process. It can be a painful enough process without dragging it out further going through a protracted legal battle when you can jointly agree terms within a matter of days.

Mediation saves time.

Going to the courts process to thrash out an agreement can be a time-consuming and costly affair . The cost involved is not only pounds and pence, but it is also the cost to your health and well-being. The cost of unresolved issues maybe even feeling as if your life is on hold whilst you battle for weeks and months, sometimes even years against each other before achieving a court ruled decision. Agreeing matters through mediation allows couples to proceed with a consent divorce which is much quicker.

Mediation saves money.

Why spend what remaining assets you could have on a long winded legal battle?

Where couples have agreed the terms of their separation or divorce through mediation they have saved the costs of a contested court case were each point to be agreed is fought over. In the legal system time costs money and accordingly the less time spent in the contested legal system the more money that is saved by the couple that they can spend on their future rather than the courts.

Mediation helps families.

Are you looking to put in place a positive future for your children? Are you looking to move on? Are you looking for closure and peace of mind?

If you are mediation more so than any other system can provide you with these answers and solutions. If you’re willing to take the first step towards attaining these goals chances are your spouse or partner is seeking to do the same. Even though serious arguments that follow from a separation can lead to hurt and blame, chances are behind-the-scenes that the other person is also hoping for the same better outcome. This can be hard to see when you are in the middle of arguments and

nobody wants stress or hurt to continue indefinitely. This can lead to health problems for both parties involved in the divorce/ separation. The person who has made the decision to leave the relationship often carries an immense amount of guilt and stress with them. There is a presumption because someone has decided to leave that they are stress and guilt free, ofen this is not the case.. Although the person who was left behind will often experience a greater degree of stress and loss, the person who choose to leave the relationship as a number of personal issues to deal with in coming to terms with the end of the relationship.

Ask yourself following questions. If you answer yes to any of the following, chances are mediation can offer you the solutions you are looking for.

  • For your children’s sake do you hope that both you and your ex-partner/spouse will attend their wedding or family events during the future?
  • Do you want positive communication with your ex regarding the future of your children in relation to their lives, their personal affairs, their health and their education?
  • Do you want a less acrimonious relationship with your former partner/spouse?

For people who have already been through the court process choosing mediation to solve on-going problems can be a welcome relief. The mediation environment is completely different to the court environment. The court system is focused on dealing with evidence in an adversarial manner. People are divided into categories such as plaintiff, defendant, petitioner depending on the type of case that they are involved in. The process is focused on somebody making a case against the other person. This is not healthy for parents and families alike. In mediation the parties get a chance to speak with the mediators in private before conducting any joint sessions with the other person present. Anything that is said to the mediators and private remains private and will not be revealed to the other party. Mediations are often conducted in private rooms, business centres and functional rooms in hotels. There are always conducted in bright and open spaces.

Courtrooms by contrast are often functional environments that are more focused on the process of the courts business than the needs of the parties themselves. Mediations are conducted in relaxed and friendly settings.

Third-party childcare professionals can be brought in on a consultancy basis into the mediation process. Many couples will choose to involve child psychologists, child psychiatrists and child therapists in helping them formulate a parenting plan. If couples find during the mediation process that they are not sure what specific arrangements to put in place for their children they can make the decision to take third-party advice. This process can run concurrent with the mediation process and can provide a welcome additional voice within the process.

Depending on the circumstances of the mediation and the age of the children involved children can play part in the mediation process. For both mom and dad agree children can speak with the mediators and learn about the positive and proactive steps that parents are taking to is making positive decisions in respect of their futures.

The involvement of children in mediation is conducted in a very controlled and proactive manner by the mediators. It requires a large green coffee between mediators and parents alike to be conducted successfully. Where child involvement in mediation is completed in a positive manner it can have far-reaching and dramatic successful consequences for the family involved.

Mediation not only helps the nuclear family. Where brothers or sisters are having a dispute or elderly parents are having a dispute with adult children mediation can come to the rescue. If families cannot decide over issues such as inheritance provisions, nursing home arrangements or simply put who will look after mum and dad?, Mediation can provide a welcome solution. Family dispute are not linear in nature. There is a presumption that most family disputes between spouses or partners over issues such as money and children. This is not the case. What ever issue forms the core of your personal dispute with a family member this issue can be addressed in mediation.

 

What’s my role in the Process?

Once you have decided that you want to use mediation to resolve your issues you may wonder what you will be required to do.

You may feel anxious about facing the other party, or that you won’t be able to communicate the things that are important to you.

Most people are unsure of how it will all work out at the start of the process.

Don’t worry you are in safe hands.

We will work hard to ensure that any concerns you may have are addressed and that the sessions remain focused and you both have an equal voice.

All you have to do is :

  • Come to the sessions prepared to participate.
  • Be willing to discuss the issues in an open and honest way.
  • Agree to listen carefully and really consider what is being said before rushing to respond.
  • Be respectful and behave in a non-aggressive manner towards the other party and Mediators

How Does Mediation Work?

There are a number of stages in the process;

Initial Meeting

Introduction – The mediators will meet with both parties for the first time and explain the process to you both and answer any questions you may have and assess whether they believe,  if  your situation is suitable for mediation or not.

You are seen individually so that we can explore issues with each of you to gain a full understanding of your situation and what you wish to achieve.  This gives you the opportunity to share whatever you wish with us in private and in complete confidence.  We may also ask you to outline what is the best case scenario and the worst case scenario you could imagine as an outcome in your case. We all meet up and you both outline the situation and the issues you wish to address during the mediation process and we draw up an agenda for future session(s).

Follow on Sessions – Mediation sessions are arranged as necessary until all the issues on your agenda have been discussed and you have agreed the way forward.

Written Agreement – Finally we produce a written agreement, which is simply a record of what you both have discussed and jointly signed up to be bound by. It can also be used by your legal representatives as the basis of a  legal agreement.

What techniques do Mediators use?

httpv://youtu.be/jMY24w7OZ9w

-Ask thought provoking questions

-Reality check the parties understanding of a particular point or issues

-Use proven techniques such as visualization and display tools to help the individuals better understand the respective positions.

-Move the parties away from positions and move them towards focusing on interests

Our mediators are trained and highly experienced to be able to assist you to find the best possible outcome that is acceptable to you both. To do this they will use a number of tried and tested methods they will;

  • Ask lots of questions and sometimes to play ‘Devil’s Advocate’.
  • Encourage discussion regarding the options that are identified as potential solutions.
  • Challenge the reality of proposed solutions. During the sessions you may hear the mediators ask…

–   ‘ Ok so how will that work out in reality’

‘Can I just check, have you thought about how you will manage to collect the baby when you are at work at 6am’?

‘If you do give the house to x and the children, how will you afford somewhere else; where will you live’?

  • Encourage the parties to work through each of the issues they have identified as being important to reach a solution that is practical and agreeable to both sides.
  • Challenge the clients where necessary when they can only see their own perspective.
  • Encourage even the smallest agreements and build on the positives especially when parties get stuck or feel they can’t see a way out.
  • Manage emotional times. We encourage ‘time- out’ if things get heated or individuals are upset.

The Role Of The Mediator

You may be wondering what the Mediators will actually do during the sessions?

Our mediators are trained and highly experienced to be able to assist you to find the best possible outcome that is acceptable to you both. To do this they will use a number of tried and tested methods they will;

  • Ask lots of questions and sometimes to play ‘Devil’s Advocate’.
  • Encourage discussion regarding the options that are identified as potential solutions.
  • Challenge the reality of proposed solutions.
  • During the sessions, you may hear the mediators ask

Ok so how will that work out in reality

Can I just check – have you thought about how you will manage to collect the baby when you are at work at 6am?.

If you do give the house to x and the children, how will you afford somewhere else; where will you live? Take out or keep in ?

Encourage the parties to work through each of the issues they have identified as being important to reach a solution that is practical and agreeable to both sides.

Challenge the clients where necessary when they can only see their own perspective.

Encourage even the smallest agreements and build on the positives especially when parties get stuck or feel they can’t see a way out.

Manage emotional times We encourage ‘time- out’ if things get heated.

Your Role in the Mediation

Once you have decided that you want to use mediation to resolve your issues you may wonder what you will be required to do.

You may feel anxious about facing the other party, or that you won’t be able to communicate the things that are important to you.

Most people are unsure of how if will all work out at the start of the process. Don’t worry you are in safe hands.

We will work hard to ensure that any concerns you may have are addressed and that the sessions remain focused and you both have an equal voice.


All you have to do is;

  • Come to the sessions prepared to participate.
  • Be willing to discuss the issues in an open and honest way.
  • Agree to listen carefully and really consider what is being said before rushing to respond.
  • Be respectful and behave in a non-aggressive manner towards the other party and Mediators