Consultation Paper on Alternative Dispute Resolution - Law Reform ...

Parenting – how will the children spend time with each of their parents
and how will the parents communicate about their children?
Financial support – will support be paid for one spouse and the children
and how much will each person have to live on?
Pensions – what entitlements are there and how will they be
distributed?
Assets – how will the couple divide their assets?
Debts – how will they manage debts and other outgoings?
Contents of the family home – how will the contents be allocated? 47
5.40 Proponents of family mediation argue that the traditional adversarial
litigation system is unable to adapt to the needs unique to family breakdown.
Where human relationships are strained, the adversarial approach may actually
increase rather than reduce conflict. 48 ―The basic nature of the adversarial
system pits parents against each other, encourages polarised and positional
thinking, and discourages parental communication, cooperation, and more
mature thinking about children‘s needs at a critical time of change and
upheaval.‖ 49
5.41 In its <strong>Consultation</strong> <strong>Paper</strong> on Family Courts, 50 the Commission
acknowledged a number of advantages and disadvantages for mediation. The
Commission noted that the advantages that have been put forward for
mediation as an alternative to the adversarial process include:
Adversarial court hearings may exacerbate the friction and hostility
inherent in most marital disputes, while the emphasis in mediation is
rather on fostering co-operation and establishing workable
arrangements for the future;
47 Family Support Agency Annual Report 2006 at 23. Available at
http://www.fsa.ie/publications/FSA%20Annual%20Report%202006%20Eng%20V
ersion.pdf.
48 Alberta Law Reform Institute Research <strong>Paper</strong> on Court-Connected Family
Mediation Programs in Canada (No. 20 1994) at 1.
49 Kelly ―Psychological and Legal Interventions for Parents and Children in Custody
and Access Disputes: Current Research and Practice‖ (2002) 10 Va J Soc Pol‘y &
L 129 at 131.
50 Law Reform Commission <strong>Consultation</strong> <strong>Paper</strong> on Family Courts (March 1994) at
32.
175