Legal head-to-heads 'only hurt the clients'
Thursday February 21 2008
IRELAND'S adversarial legal system may be "making things worse" for litigants and creating injustice, the head of the Bar Council has warned.
In a major lecture delivered last night, barrister Turlough O'Donnell said that in disputes where future relationships are at stake, such as family law cases, mediation must be considered as an alternative to resolving bitter court conflicts.
Mr O'Donnell, a senior counsel who represents almost 2,500 practising barristers as head of the council, said that the adversarial system -- which pits sides against each other in win-or-lose litigation -- easily encourages "appalling military language", skirmishes and attacks that not only fail to resolve disputes, but create aggression.
"Ordinary decencies like giving an explanation to another person, expressing regret or making an apology are all discouraged either as signs of weakness or as admissions of liability," Mr O'Donnell said during the sixth annual Brian Walsh Memorial lecture.
The lecture in Dublin was attended by Chief Justice John Murray, son-in-law of the late Supreme Court judge Brian Walsh. "All the time we lawyers are projecting our idea of what the problem is onto the problem itself," said Mr O'Donnell.
"Many people just want an apology or and explanation -- much litigation is driven by people who 'just want to know what happened' and are not allowed find out any other way.
People can be helped to look to the future -- not remain stuck in the past. This is particularly important in family law."
Earlier this month, the Irish Independent revealed that many litigants, including the middle classes, were shunning legal advice because they cannot afford solicitors or barristers, and are instead representing themselves, especially in contested family law proceedings.
Mr O'Donnell's remarks were echoed yesterday by former Supreme Court judge Catherine McGuinness, as she launched collaborativelaw.ie, a website to help separating or divorcing couples resolve their disputes without going to court.
"Collaborative Family Law is faster and less acrimonious than court proceedings . . . and it is likely to be far less stressful," said Mrs McGuinness, who is President of the Law Reform Commission.
- Dearbhail McDonald Legal Editor
