Remarks by President McAleese at the opening of the second European Collaborative Law Conference
Remarks by President McAleese at the opening of the second European Collaborative Law Conference Sheraton Hotel, Fota Island
Good morning and thank you for your warm welcome. I have observed the development of collaborative law with great interest over recent years and the relatively speedy migration of the mechanisms of alternative dispute resolution into the field of family law. The hosting of this conference here in Ireland gives me twofold pleasure, therefore: first, that the discipline should have evolved to such an extent that it is possible to fill a venue such as this with a clearly thriving body of practitioners; and second that the discipline is in such a healthy state here in Ireland that you have chosen to honour the Irish legal community by asking them to host what is only the second European conference on collaborative law. I thank you, therefore, for including me in today’s proceedings, and in particular, I thank Patricia [Mallon], the chairperson of the Association of Collaborative Practitioners in Ireland, for her kind invitation.
Although Ireland’s rate of marriage breakdown is well below the European average, data from our most recent census show that the incidence of such breakdowns - whether through separation, divorce or annulment - has increased dramatically in the past twenty years. The family law practitioners among you know from direct professional experience, and increasingly, the rest of us are learning of the profound effects of the breakdown of a marriage, and in particular, where there are children involved, of the deeply traumatic effect this can have on a family, not just in the immediate readjustment to separate households and separate lives but in the long-term adaptation to the physical, emotional, psychological, practical and financial daily realities of divided lives. The old adversarial model of a day in court with a winner and a loser was never designed effectively to address the profound human needs and vulnerabilities at the heart of family relationships and indeed even the most redeemed family law model has stark limitations to the difficulties and problems it can realistically address and help resolve. It is essential, however, that the legal process designed to vindicate and support spouses and children through that part of the chaos of marriage breakdown which is proper to the sphere of law, should not itself leave a legacy of unnecessary collateral damage.
In each of your jurisdictions the family law code contains a complex array of legislation dealing with family or relationship breakdown. Here in Ireland we have seen considerable development of initiatives in this field including increasing funding of civil legal aid services, establishing a network of family court offices across the country and the establishment of the Family Support Agency to assist in counselling, mediation and support of families. The role of mediation played a prominent role in the 1996 debate in Ireland on the introduction of divorce, and the 1996 Divorce Act contains safeguards to ensure that parties to divorce proceedings are made fully aware of the alternatives to such proceedings, including the availability of mediation to effect a settlement, or a divorce on a basis agreed by both parties.
Collaborative family law, of which you are the European pioneers, sits very well with this policy. It recognises that divorce and permanent relationship breakdown rarely give way to a clean-break scenario where the parties depart, never to see or be involved in each others’ lives again, especially where children or ongoing financial dependency are involved. In reality we are looking not at an end-game but at a process leading to new ways of dealing with one another. The greater the degree of cooperation and mutual buy-in to the process, the more likely it is that in both the short and long-term the outcomes will be healthier and happier all round. Collaboration offers great flexibility. It promotes a culture of cooperation and openness that conduces hopefully to less stress and more mutually respectful and consensual structured decisions. It does so in a controlled and professional environment at some remove from the otherwise tactical defensiveness or aggression that can characterise the negotiating environment of conventional adversarial systems.
Removing the possibility that the lawyers present will participate in any eventual litigation reassures the parties of the bona fides of the other side. Everyone in the room - lawyers included - is focused on finding a settlement, rather than preparing for court proceedings, on finding an outcome which gives all parties a sense of ownership of the decisions arrived at. Agreements reached by the spouses themselves, rather than imposed from outside, are more likely to be respected and it goes without saying they reduce the chances of the future becoming a battleground in a bitter war of attrition where lives are routinely made miserable by skewed communications.
No lawyer or legal system can be expected to make people happy but it can at least aspire to minimise the misery. It can aspire to encourage rather than discourage good will, to promote consensus rather than conflict, to help parties move into a better future rather than remain mired in an unhappy past. An ever-growing cohort of solicitors trained as collaborative practitioners with the backing of the Legal Aid Board are set to help us consciously shift our legal culture into a new era. It has been germinating for some considerable time and we can be reassured that it will deliver considerable benefits to spouses and children over their lifetimes by forging the pathway from a confrontational past to their future through a decidedly non-confrontational route.
There is a learning and experiential curve here for all parties that will at times demand changes in perspective and behaviour and it may well be that collaborative law will not be the preferred method of family dispute resolution in every case. Sometimes the goodwill needed to kick-start collaboration and sustain it will just be a hope too far. But where there is a desire on both sides to move to as constructive a future as possible, then it is essential that we have ready and equipped, the professionals who can intuit that and build on it coherently and effectively.
That is where you come in. As a relatively new and growing discipline this conference will be an invaluable resource as you share experience, wisdom, insight and skill and as collaboratively you chart the next part of the road map to better collaboration.
I hope that you will all enjoy a most stimulating and convivial couple of days here in Fota. I am delighted, therefore, to wish you every success in your discussions, and formally to declare open the Second European Collaborative Law Conference.