Collaborative law: comment

AuthorCatherine Mcguinness
PositionPresident of the Law Reform Commission of Ireland, and former Justice of the Supreme Court
Judicial Studies Institute Journal [2009:1
It is widely accepted – in theory at least – that family law
disputes do not benefit from an adversarial approach, and that the
resolution of such disputes through mediation or other forms of
alternative dispute resolution (ADR) is almost universally to be
desired. Recourse to the courts is frequently denigrated.
In recent years there has been an increase in the general use
of various methods of alternative dispute resolution, notably in
commercial disputes and in the context of industrial relations
difficulties. A consultation paper surveying the different systems
of ADR and their particular contexts was published in July 2008
by the Law Reform Commission,1 and a final report on the
subject will be published in the near future. It is notable that there
has been a very high level of public demand for the Consultation
Paper, and this has been reflected in an unprecedented number of
submissions on the subject to the Commission since its
The general stance of approval and encouragement of
alternative forms of resolution in family law disputes is reflected
in the statutory provisions contained in both the Judicial
Separation and Family Law Reform Act, 1989, and the Family
Law (Divorce) Act, 1996. Sections 5 and 6 of the 1989 Act and
sections 6 and 7 of the 1996 Act provide that a solicitor, before
issuing proceedings, is to draw a client’s attention to the options
of counselling and mediation; must give information concerning
these options; and must provide to the court a certificate to
establish that these requirements have been satisfied. All this,
however, as stated by Dr. Carol Coulter in her Report to the
Board of the Courts Service following the Family Law Reporting
* President of the Law Reform Commission of Ireland, and former Justice of
the Supreme Court. This comment is written in a personal capacity, and does
not represent the views of the Commission.
1 See Law Reform Commission, Consultation Paper on Alternative Dispute
Resolution (LRC CP 50 - 2008).

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