Tuesday 22 October 2019

Mediation, not the courts, is key in avoiding the 'war'

'You can hear the damage being done', Roisin O'Shea tells Maeve Sheehan about the pain of marriage break-ups

WHEN Roisin O'Shea applied for a judicial separation from her husband, it seemed there was only one way to go about it - and that was by plastering on the war paint and marching into court. It was acrimonious, messy and unpleasant. She was angry. The adversarial court setting encouraged more anger. It was costing her a fortune. It was literally like war.

"If I had known in the beginning what I know now, my separation might never have got so hard," says Roisin.

What she knows now is considerable; she has a law degree, a PHD in family law and is on a crusade to "prove empirically" that mediation works better for estranged couples than court.

During the dark days of her separation, she had no idea how traumatic the whole process would become. "Your judgement is absolutely clouded and you are emotional," she says.

"I felt angry. When I got angry and expressed that to my solicitor, I didn't realise that was resulting in letters to the other side, expressing my anger. The solicitor was doing his job, but I didn't understand the rules. I didn't understand that when I said to the solicitor, 'you better tell that man...' that he actually would!

"That meant we went to war. And once those letters start going back and forward, you're in a war."

She makes a joke of it now, but it was pretty devastating at the time.

"It was acrimonious. In my experience, divorces that end up contested in court are acrimonious," she says.

Roisin compares divorce to bereavement - "like losing someone close to you" - or to a trauma like a car crash. "The feelings I had were closer to bereavement at the time, even though I was the one who ended the marriage," she says.

Her judicial separation took three years and cost her €55,000 in legal fees. She emerged the other end feeling "completely patronised and demoralised" through the whole process.

So much so that, as she was going through the judicial separation, she went back to college to study law so she could organise her divorce without the hefty legal fees. She "did her own divorce", as she puts it, in 2010, and co-founded a mediation practice in Waterford that same year.

She went on to produce an award-winning tome of empirical research for a Doctorate in Law that took her four years, observing 1,087 cases of marriage breakdown.

As a result of her research, we now know how divorce and separation cases rocket through the overcrowded judicial system. The shortest consent divorce took just 30 seconds. Contested divorces took an average of just 20 minutes each, and in 95pc of cases the family home went to the wife.

But her biggest concern was the level of often avoidable conflict she witnessed among estranged couples crammed into crowded district and circuit courts, and the absent voice of their children.

Now she is "passionate" about taking family law out of the conflict zone of court. Instead of going to a solicitor first, she says the first port of call should be a professional mediator trained in dispute resolution.

And she is intent on proving that it works. She says the results of a pilot project she is conducting with Waterford Institute of Technology shows that 95pc of couples who agree to engage in mediation after the first session will find some common ground, reaching agreements on things like access to the children or maintenance.

Lower legal bills are certainly one of the upsides of mediation but, as Roisin points out, separating couples will always need a good lawyer.

Perhaps the most important benefit of mediation is the opportunity to achieve divorce by peaceful means.

"If you can come apart, and you are supported in coming apart, in a less confrontational way, there is every possibility you can be on amicable terms. But I think the war in the courtroom destroys that possibility.

"You can hear it - you can actually hear the damage being done," she says. "People are angry. I was angry and it has taken me a long time to get away from it. There is no one person I can blame for it. That's the way we go at it - and it is the wrong way."

Sunday Independent

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