Collaborative law: comment

• Author: Catherine Mcguinness
• Position: President of the Law Reform Commission of Ireland, and former Justice of the Supreme Court
• Pages: 30-36

Judicial Studies Institute Journal [2009:1

30

COLLABORATIVE LAW: COMMENT

CATHERINE MCGUINNESS*

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

publication.

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).