DIVORCE MEDIATION IN EUROPE An Introductory Outline(ll Miquel Martin Casals (University of Girona, Spain)ii[2] Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Contents 1. Introduction 2. The current state of fami ly mediation in Europe according to national law and practice 2. I Family mediation in Eastern Europe 2. 2 Family mediation in Southern europe 2.3 Fami ly mediation in Northern Europe 2. 4 Family mediation in Western Europe 2.4.1 Germany 2.4.2Fr 2. 4.2. 1 Origins and development 2.4.2.2 French legislation 2. 4.3 England and Wales 2. 4. 4 Other countries, in particular Belgium and Austria 2.4.4.1Au 2.4.4.2 Belgium Introduction It is well known that 'divorce mediation is a dispute resolution process in which, as an alternative to judicial or administrative decision-making, the spouses are assisted by an impartial and
DIVORCE MEDIATION IN EUROPE: An Introductory Outlinei[1] Miquel Martín Casals (University of Girona, Spain)ii[2] Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Contents 1. Introduction 2. The current state of family mediation in Europe according to national law and practice 2.1 Family mediation in Eastern Europe 2.2 Family mediation in Southern Europe 2.3 Family mediation in Northern Europe 2.4 Family mediation in Western Europe 2.4.1 Germany 2.4.2 France 2.4.2.1 Origins and development 2.4.2.2 French legislation 2.4.3 England and Wales 2.4.4 Other countries, in particular Belgium and Austria 2.4.4.1 Austria 2.4.4.2 Belgium Notes Introduction It is well known that ‘divorce mediation’ is a dispute resolution process in which, as an alternative to judicial or administrative decision-making, the spouses are assisted by an impartial and
neutral professional (the mediator or mediators) in order to analyse the situation arising from the spouses wish to be divorced and to try to reach their own agreement with regard to some or all the matters under dispute The phrase‘ divorce mediation’- in contrast to‘ famil mediation emphasises the application of this process to the crisis in which a couple finds itself when their marriage breaks down, and explicitly leaves aside mediation aimed at the resolution of other types of conflict that may arise between family members, such as maintenance among relatives, establishing links with biological parents, contact rights of grandparents with regard to their grandchildren, step-parent adoption or any other conflict between relatives However, this term is not inclusive enough since problems which are functionally similar to those arising from divorce also take place when married or unmarried couples decide to separate de facto or legally. Moreover, talking about 'divorce mediation is focusing on adults who are breaking up their marriage, whereas if we look at families as children-centred systems, regardless of whether parents marry, cohabit, divorce or separate, children always have to be fed, clothed, housed and looked after daily. Therefore, when viewed from the children' s perspective, the social context of mediation will extend more widely than the breakdown of marriage only, to cover all kinds of separation regardless of whether a couple is married or cohabiting. For this reason in this article i will not refer to ' divorce mediation’ but to‘ family mediation’, not in its widest sense, but in the stricter sense of mediation encompassing all possible disputes arising from the breakdown of a couple' s relationship Mediation may be seen as a type of ' Alternative Dispute Resolution, alongside other processes such as negotiation and arbitration which share with mediation the common characteristic of resolving disputes between spouses or among family members without a judge's order after an adversarial trial. However, by contrast with negotiation, where the parties or their representatives seek a resolution to their dispute through direct discussions, in mediation the dispute resolution process is facilitated by a neutral and impartial third party. In contrast to arbitration, where the parties, by mutual agreement, delegate the power to decide to a third party, in mediation this third party does not have the power to decide the dispute and aims at helping the parties to reach their own decision however, de ersally agree on the the
neutral professional (the mediator or mediators) in order to analyse the situation arising from the spouses’ wish to be divorced and to try to reach their own agreement with regard to some or all the matters under dispute. The phrase ‘divorce mediation’ - in contrast to ‘family mediation’ - emphasises the application of this process to the crisis in which a couple finds itself when their marriage breaks down, and explicitly leaves aside mediation aimed at the resolution of other types of conflict that may arise between family members, such as maintenance among relatives, establishing links with biological parents, contact rights of grandparents with regard to their grandchildren, step-parent adoption or any other conflict between relatives. However, this term is not inclusive enough since problems which are functionally similar to those arising from divorce also take place when married or unmarried couples decide to separate de facto or legally. Moreover, talking about ‘divorce mediation’ is focusing on adults who are breaking up their marriage, whereas if we look at families as children-centred systems, regardless of whether parents marry, cohabit, divorce or separate, children always have to be fed, clothed, housed and looked after daily. Therefore, when viewed from the children’s perspective, the social context of mediation will extend more widely than the breakdown of marriage only, to cover all kinds of separation regardless of whether a couple is married or cohabiting. For this reason, in this article I will not refer to ‘divorce mediation’ but to ‘family mediation’, not in its widest sense, but in the stricter sense of mediation encompassing all possible disputes arising from the breakdown of a couple’s relationship. Mediation may be seen as a type of ‘Alternative Dispute Resolution’, alongside other processes such as negotiation and arbitration, which share with mediation the common characteristic of resolving disputes between spouses or among family members without a judge’s order after an adversarial trial. However, by contrast with negotiation, where the parties or their representatives seek a resolution to their dispute through direct discussions, in mediation the dispute resolution process is facilitated by a neutral and impartial third party. In contrast to arbitration, where the parties, by mutual agreement, delegate the power to decide to a third party, in mediation this third party does not have the power to decide the dispute and aims at helping the parties to reach their own decision. Mediators, however, do not universally agree on the theory and
practice of their profession. Some stress that the mediator must help the parties in conflict to articulate their needs and their fears better or, in short, that he or she must help the parties to communicate better Others emphasise that the mediator must help the parties in dispute to understand the strengths and weakness of their positions and interests better and, if requested, predict for them the possible scenarios if the parties do not reach an agreement. Finally, others insist that one of the aims of mediation is to change the quality of the parties interaction, i.e. to transform hostility and bitterness between the parties into constructive interaction. If the parties are parents, the breakdown of their personal relationship as a couple will not lead to an end of their relationship as parents. The best interests of their children will require that the best possible relationship between them as parents is preserved for the future. In all likelihood, these three aspects will be present in the professional activity of the mediator and will be promoted in his or her specific training Mediation will be a structured process carried out by specifically trained professionals, which will be performed according to recognised principles and techniques. These principles, which have been the traditional content of the codes of practice for mediators, have been set out in Recommendation R(98)1 of the Council of Europe issued in 1998 or in the more recent European Code of Conduct for Mediators and the Proposal of Directive for mediation. In this article, i will concentrate on the broader outlines of the situation of family mediation in several European countries according to domestic law and practice. 2. The current state of family mediation in Europe according to national law and practice The Commission on European Family Law(CEFL), a group of family and comparative law experts from most European countries established in 2001, iii[3] published two- in my opinion -very relevant volumes in 2003. These volumes contain the answers given by experts from 22 European countries to a questionnaire of more than 100 questions concerning the grounds for divorce and the problems of maintenance. iv[4 One of the questions of the questionnaire dealt with in Volume I was Are attempts at conciliation, information meetings or
practice of their profession. Some stress that the mediator must help the parties in conflict to articulate their needs and their fears better or, in short, that he or she must help the parties to communicate better. Others emphasise that the mediator must help the parties in dispute to understand the strengths and weakness of their positions and interests better and, if requested, predict for them the possible scenarios if the parties do not reach an agreement. Finally, others insist that one of the aims of mediation is to change the quality of the parties’ interaction, i.e. to transform hostility and bitterness between the parties into constructive interaction. If the parties are parents, the breakdown of their personal relationship as a couple will not lead to an end of their relationship as parents. The best interests of their children will require that the best possible relationship between them as parents is preserved for the future. In all likelihood, these three aspects will be present in the professional activity of the mediator and will be promoted in his or her specific training. Mediation will be a structured process carried out by specifically trained professionals, which will be performed according to recognised principles and techniques. These principles, which have been the traditional content of the Codes of Practice for mediators, have been set out in Recommendation R (98)1 of the Council of Europe issued in 1998 or in the more recent European Code of Conduct for Mediators and the Proposal of Directive for mediation. In this article, I will concentrate on the broader outlines of the situation of family mediation in several European countries according to domestic law and practice. 2. The current state of family mediation in Europe according to national law and practice The Commission on European Family Law (CEFL), a group of family and comparative law experts from most European countries established in 2001,iii[3] published two - in my opinion - very relevant volumes in 2003. These volumes contain the answers given by experts from 22 European countries to a questionnaire of more than 100 questions concerning the grounds for divorce and the problems of maintenance.iv[4] One of the questions of the questionnaire dealt with in Volume 1 was: Are attempts at conciliation, information meetings or
mediation attempts required[5] A new book under the auspices of this Commission, which will most probably be published in 2005, vi[6] deals with parental responsibility, and one of the questions included in the questionnaire (Question 57) is What alternative disputes solving mechanisms, if any, e.g. mediation or counselling, are offered in your legal system? Are such mechanisms also available at the stage of enforcement of a decision agreement concerning parental responsibilities, the child' s residence or contact? Although the questions were not aimed at obtaining reports on family mediation and other alternative dispute resolution mechanisms in the countries and, therefore, the answers do not go into very great detail, these answers offer an excellent starting point from which, with the aid of other sources, an outline of the current situation of family mediation in Europe can be drawn. In very broad and general terms, family mediation follows similar steps in all European countries: 1) First, it is discovered with enthusiasm by professionals who deal with family conflicts; 2) next these professionals organise themse lves into associations for the promotion and the practice of mediation; 3)in a further step, the national legislature refers occasionally to mediation as a useful mechanism for the resolution of conflicts arising out of separation or divorce, a process that is considered preferable to adjudication in adversarial proceedings and 4)finally, family mediation obtains more detailed legal regulation as such or within the broader framework of rules dealing with mediation in civil and commercial matters In one of her forthcoming publications, Lisa Parkinson writes A picture of mediation in Europe would resemble a constantly changing patchwork quilt or mosaic. The pieces making up this patchwork have recurring patterns and colours, but they are not uniform and they are not woven to a single design. There are many missing pieces and the patchwork has gaps in it. A variegated patchwork that recognises cultural differences is preferable to uniformity. vii[7 Let us have a look at this patchwork
mediation attempts required?v[5] A new book under the auspices of this Commission, which will most probably be published in 2005,vi[6] deals with parental responsibility, and one of the questions included in the questionnaire (Question 57) is: What alternative disputes solving mechanisms, if any, e.g. mediation or counselling, are offered in your legal system? Are such mechanisms also available at the stage of enforcement of a decision/agreement concerning parental responsibilities, the child’s residence or contact? Although the questions were not aimed at obtaining reports on family mediation and other alternative dispute resolution mechanisms in the countries and, therefore, the answers do not go into very great detail, these answers offer an excellent starting point from which, with the aid of other sources, an outline of the current situation of family mediation in Europe can be drawn. In very broad and general terms, family mediation follows similar steps in all European countries: 1) First, it is discovered with enthusiasm by professionals who deal with family conflicts; 2) next these professionals organise themselves into associations for the promotion and the practice of mediation; 3) in a further step, the national legislature refers occasionally to mediation as a useful mechanism for the resolution of conflicts arising out of separation or divorce, a process that is considered preferable to adjudication in adversarial proceedings and 4) finally, family mediation obtains more detailed legal regulation as such or within the broader framework of rules dealing with mediation in civil and commercial matters. In one of her forthcoming publications, Lisa Parkinson writes: A picture of mediation in Europe would resemble a constantly changing patchwork quilt or mosaic. The pieces making up this patchwork have recurring patterns and colours, but they are not uniform and they are not woven to a single design. There are many missing pieces and the patchwork has gaps in it. A variegated patchwork that recognises cultural differences is preferable to uniformity.vii[7] Let us have a look at this patchwork
2. 1 Family mediation in Eastern Europe In the countries that have been under soviet influence for decades family mediation is still in its infancy. This is also the case in countries such as Hungary and Bulgaria, where their Parliaments have recently passed some legislation on mediation In the Czech Republic, there are no alternative mechanisms for resolving family disputes. Certified experts who are authorised by the courts to provide an expert opinion on the regulation of contact between the non-resident parent and the child, or expert witnesses reporting on the suitability of each parent for the upbringing of their children may occasionally try to help the parents come to an agreement and in these cases they would fulfil a similar functional role. However, family mediation is not established as a profession and is not regulated by Czech law. viii[8I In Lithuania, although the Civil Code (Article 3. 54 Lithuanian CC) and the Code of Civil Procedure(Article 231, 376 Lithuanian CCP) impose a general duty on the court to take all necessary measures in family disputes to reconcile the parties, the law does not de for mediation either. ix[9 In Poland, current law and practice refer to reconciliation and to family counselling (article 70 of the Polish statute of 2003 on social assistance), but family mediation is not provided x[101 The situation is similar in Russia. xi[lll In Hungary, al though Parliament passed an Act on mediation in 2002 and family mediation is practised, it is not widely available. It aims at resolving disputes on parental responsibility,residence of the child and contact, and there is special 'child-welfare mediation' that may help parents arrange the matter of contact if they cannot agree on the manner or the time of the contact xii12 In Bulgaria, Parliament passed the first Act on Mediation on the December 2004 in spite of the hostility of some of its conservative members who considered mediation 'dangerous alleging that it might privatise the judiciary function of the tate. xiii[l3] The Act does not deal with family mediation only since Article 3(1), as regards the subject matter of mediation provides that '[t]he subject of mediation may be civil, commercial and administrative disputes related to consumer rights, and other disputes between natural and/or legal persons Moreover, Article 3 (2)adds that '[mediation shall furthermore
2.1 Family mediation in Eastern Europe In the countries that have been under soviet influence for decades, family mediation is still in its infancy. This is also the case in countries such as Hungary and Bulgaria, where their Parliaments have recently passed some legislation on mediation. In the Czech Republic, there are no alternative mechanisms for resolving family disputes. Certified experts who are authorised by the courts to provide an expert opinion on the regulation of contact between the non-resident parent and the child, or expert witnesses reporting on the suitability of each parent for the upbringing of their children may occasionally try to help the parents come to an agreement and in these cases they would fulfil a similar functional role. However, family mediation is not established as a profession and is not regulated by Czech law.viii[8] In Lithuania, although the Civil Code (Article 3.54 Lithuanian CC) and the Code of Civil Procedure (Article 231, 376 Lithuanian CCP) impose a general duty on the court to take all necessary measures in family disputes to reconcile the parties, the law does not provide for mediation either.ix[9] In Poland, current law and practice refer to reconciliation and to family counselling (Article 70 of the Polish statute of 2003 on social assistance), but family mediation is not provided.x[10] The situation is similar in Russia.xi[11] In Hungary, although Parliament passed an Act on mediation in 2002 and family mediation is practised, it is not widely available. It aims at resolving disputes on parental responsibility, residence of the child and contact, and there is special ‘child-welfare mediation’ that may help parents arrange the matter of contact if they cannot agree on the manner or the time of the contact.xii[12] In Bulgaria, Parliament passed the first Act on Mediation on the 2 December 2004 in spite of the hostility of some of its conservative members who considered mediation ‘dangerous’, alleging that it might privatise the judiciary function of the state.xiii[13] The Act does not deal with family mediation only since Article 3(1), as regards the subject matter of mediation, provides that ‘[t]he subject of mediation may be civil, commercial and administrative disputes related to consumer rights, and other disputes between natural and/or legal persons’. Moreover, Article 3(2) adds that ‘[m]ediation shall furthermore
be conducted in the cases provided for in the Criminal Procedure Code. xiv[14] However, according to Velina Todorova, the Act as a whole does not create the conditions for the promotion and active use of mediation since it clearly regards mediation as a poorer alternative to judicial proceedings and it is likely that mediation will not be widely used in practice. xv[15] In some countries in this group there is a certain overlap between and confusion about the terms reconciliation, counselling and mediation. In a recent work, Gordana Kova... ek Stanif clearly shows this overlap in the Serbian Draft Law on Family which introduces mediation. xvi[16] According to this Draft, the mediation procedure is aimed at reconciliation and, if this is unsuccessful, seeks to achieve a settlement (Article 229 Draft). Therefore, the first step of mediation is reconciliation with the purpose of avoiding divorce(Article 234, Draft). As a rule, the so-called ' mediation procedure' is carried out by the court before a single judge. However, a judge who conducts mediation may not participate in further judicial proceedings between the parties if mediation has not been successful (Articles 231 and 232 of the Draft). If the spouses agree to psychosocial counselling, the court may entrust mediation to the competent guardianship authority, a marriage or family counselling service, or another institution that specialises in mediating family conflicts at the spouses proposal or with their consent Under the law in force, the reconciliation procedure is the only one regulated. The aim of reconciliation is to reconcile spouses in a way that encourages them to remain married or, if that is not possible, to encourage them to reach an agreement concerning the care of the children after divorce (Articles 352 to 358, Law on Marriage and Family Relations It is worth noting that, according to the best doctrine and practice of family mediation, reconciliation and mediation are two completely different tasks. As Lisa Parkinson has pointed out mediation cannot have the dual function of saving marriages wherever possible and of encouraging an amicable divorce, since this would confuse its image and objectives. If a couple wants to get back together, the mediator should encourage them to seek counselling. xvii[l7] On the other hand, the idea of a judge acting as a mediator runs counter to the generally admitted idea that a mediator is a specifically trained professional, an idea which also underpins the current project of a European directive concerning mediation. 2.2 Family mediation in Southern Europe
be conducted in the cases provided for in the Criminal Procedure Code’.xiv[14] However, according to Velina Todorova, the Act as a whole does not create the conditions for the promotion and active use of mediation since it clearly regards mediation as a poorer alternative to judicial proceedings and it is likely that mediation will not be widely used in practice.xv[15] In some countries in this group, there is a certain overlap between and confusion about the terms reconciliation, counselling and mediation. In a recent work, Gordana Kova…ek Staniƒ clearly shows this overlap in the Serbian Draft Law on Family which introduces mediation.xvi[16] According to this Draft, the mediation procedure is aimed at reconciliation and, if this is unsuccessful, seeks to achieve a settlement (Article 229 Draft). Therefore, the first step of mediation is reconciliation with the purpose of avoiding divorce (Article 234, Draft). As a rule, the so-called ‘mediation procedure’ is carried out by the court before a single judge. However, a judge who conducts mediation may not participate in further judicial proceedings between the parties if mediation has not been successful (Articles 231 and 232 of the Draft). If the spouses agree to psychosocial counselling, the court may entrust mediation to the competent guardianship authority, a marriage or family counselling service, or another institution that specialises in mediating family conflicts at the spouses’ proposal or with their consent. Under the law in force, the reconciliation procedure is the only one regulated. The aim of reconciliation is to reconcile spouses in a way that encourages them to remain married or, if that is not possible, to encourage them to reach an agreement concerning the care of the children after divorce (Articles 352 to 358, Law on Marriage and Family Relations). It is worth noting that, according to the best doctrine and practice of family mediation, reconciliation and mediation are two completely different tasks. As Lisa Parkinson has pointed out, mediation cannot have the dual function of ‘saving marriages’ wherever possible and of encouraging an amicable divorce, since this would confuse its image and objectives. If a couple wants to get back together, the mediator should encourage them to seek counselling.xvii[17] On the other hand, the idea of a judge acting as a mediator runs counter to the generally admitted idea that a mediator is a specifically trained professional, an idea which also underpins the current project of a European directive concerning mediation. 2.2 Family mediation in Southern Europe
The situation in Southern Europe is very diverse. In Greece, xviii[18 there is no structured way of settling divorce or separation issues, including parental responsibility or contact with the child, other than court proceedings, and the situation does not seem to be much better in Portugal where according to De Oliveira, family mediation is still in an early, experimental stage, almost confined to the Lisbon district. xix[191 In Italy, although there have been some proposals for legislation and local authorities to promote mediation, the development of family mediation is very limited. In some pieces of legislation currently in force, there is even some confusion between family support to families. xx[20] Articles 342 bis and 342 ter of the a mediation, counselling and other social services aimed at givin Italian Civil Code must be read in this sense, which deal with protection orders and state that when the judge, to put an end to the detrimental conduct of one spouse or cohabitant, orders him or her to leave the family home, he may also call upon the intervention of the welfare services operating in the territory or the intervention of a family mediation centre. xxi21l In this section on Southern European countries, Spain is the exception. Family mediation has been practised since the mid-1980s by psychosocial teams attached to family courts. By the end of the 1980s, family mediation services had been created in the Basque country, Barcelona, Madrid and other cities. During the 1990s, family mediation was promoted by various associations, and the Catalan legislature began to prepare a Draft Bill concerning family mediation in 1997, which was introduced into the Catalan Parliament in 1999. xxii[22 After a delay caused by regional elections and many disputes between professional groups as to which professionals should be allowed to practise mediation and under what conditions, the Draft Bill finally became an Act in 2001. xxiii[23] In the meantime, the Draft Bill was taken as a model by other Autonomous Communities for their own legislation and two other Autonomous Communities, Galiciaxxiv[24]and Valenciaxxv[25], also passed their family mediation Acts in 2001; the Canary Islands followed suit in 2003xxvi [26]. All these Acts are exhaustive and, in general terms, comply with Recommendation R 98(1)of the Council of Europe. They establish a public centre which is in charge of organising mediation, the participation of professional corporations, the principles and procedures of family mediation and the sanctions which mediators infringing the law will incur xxvii[271
The situation in Southern Europe is very diverse. In Greece,xviii[18] there is no structured way of settling divorce or separation issues, including parental responsibility or contact with the child, other than court proceedings, and the situation does not seem to be much better in Portugal where, according to De Oliveira, family mediation is still in an early, experimental stage, almost confined to the Lisbon district.xix[19] In Italy, although there have been some proposals for legislation and local authorities to promote mediation, the development of family mediation is very limited. In some pieces of legislation currently in force, there is even some confusion between family mediation, counselling and other social services aimed at giving support to families.xx[20] Articles 342 bis and 342 ter of the Italian Civil Code must be read in this sense, which deal with protection orders and state that when the judge, to put an end to the detrimental conduct of one spouse or cohabitant, orders him or her to leave the family home, he may also call upon the intervention of the ‘welfare services operating in the territory or the intervention of a family mediation centre’.xxi[21] In this section on Southern European countries, Spain is the exception. Family mediation has been practised since the mid-1980s by psychosocial teams attached to family courts. By the end of the 1980s, family mediation services had been created in the Basque country, Barcelona, Madrid and other cities. During the 1990s, family mediation was promoted by various associations, and the Catalan legislature began to prepare a Draft Bill concerning family mediation in 1997, which was introduced into the Catalan Parliament in 1999.xxii[22] After a delay caused by regional elections and many disputes between professional groups as to which professionals should be allowed to practise mediation and under what conditions, the Draft Bill finally became an Act in 2001.xxiii[23] In the meantime, the Draft Bill was taken as a model by other Autonomous Communities for their own legislation and two other Autonomous Communities, Galiciaxxiv[24] and Valenciaxxv[25], also passed their family mediation Acts in 2001; the Canary Islands followed suit in 2003xxvi[26]. All these Acts are exhaustive and, in general terms, comply with Recommendation R 98(1) of the Council of Europe. They establish a public centre which is in charge of organising mediation, the participation of professional corporations, the principles and procedures of family mediation and the sanctions which mediators infringing the law will incur.xxvii[27]
2.3 Family mediation in Northern Europe In Norway, according to the Marriage Act 1991, which came into force on 1 January 1993, mediation is compulsory for spouses who have children from their marriage who are under 16 years of age (cf. Section 26 Marriage Act), except in specific cases, such as in cases of domestic violence (cf. Section 23 Marriage Act) Obviously, this does not mean that they are compelled to reach an agreement, but that they must initiate mediation before the case is brought before the County Governor or a court (cf. Section 26 The purpose of mediation is not to bring the spouses back together. The Act explicitly states: " The purpose of the mediation is to reach an agreement concerning parental responsibility, right of access or where the child or children shall permanently reside with due emphasis on what will be the best arrangement for the child/children 'xxviii[28] The spouses are under an obligation to attend this mediation in person unless compelling reasons prevent them from doing so, and when an attempt at mediation has been made, a certification is to be issued to that effect. xxix[29 In Sweden, xxx[ 30] mediation is called 'cooperation talks. These cooperation talks' are defined as talks where the parents under expert guidance try to arrive at a common point of view on the questions of cus tody and access. The goal of the talks is to make the parents reach an agreement, but even if no agreement is reached, through these talks parents may learn how to understand each other's opinions better and how to manage their conflicts in a way that negatively affects the children as little as possible. The goal is partly for them to agree on questions nvolving their children and partly to improve their ability to cooperate as parents Today, ninety per cent of the parents who separate in Sweden solve the questions regarding custody, residency and access either entirely on their own or with assistance through cooperation talks or family counselling. Only ten per cent of the parents receive help from the court to solve the questions mentioned. xxxi31l The parents often turn to the municipalities themselves to receive assistance in reaching an agreement. However, after a case regarding custody, residency or access has been brought before a district court, the court may refer the matter to the social welfare committee. The court' s option to institute cooperation talks does not as such depend on the parents' consent, and
2.3 Family mediation in Northern Europe In Norway, according to the Marriage Act 1991, which came into force on 1 January 1993, mediation is compulsory for spouses who have children from their marriage who are under 16 years of age (cf. Section 26 Marriage Act), except in specific cases, such as in cases of domestic violence (cf. Section 23 Marriage Act). Obviously, this does not mean that they are compelled to reach an agreement, but that they must initiate mediation before the case is brought before the County Governor or a court (cf. Section 26 Marriage Act). The purpose of mediation is not to bring the spouses back together. The Act explicitly states: ‘The purpose of the mediation is to reach an agreement concerning parental responsibility, right of access or where the child or children shall permanently reside, with due emphasis on what will be the best arrangement for the child/children.’xxviii[28] The spouses are under an obligation to attend this mediation in person unless compelling reasons prevent them from doing so, and when an attempt at mediation has been made, a certification is to be issued to that effect.xxix[29] In Sweden,xxx[30] mediation is called ‘cooperation talks’. These ‘cooperation talks’ are defined as talks where the parents under expert guidance try to arrive at a common point of view on the questions of custody and access. The goal of the talks is to make the parents reach an agreement, but even if no agreement is reached, through these talks parents may learn how to understand each other’s opinions better and how to manage their conflicts in a way that negatively affects the children as little as possible. The goal is partly for them to agree on questions involving their children and partly to improve their ability to cooperate as parents. Today, ninety per cent of the parents who separate in Sweden solve the questions regarding custody, residency and access either entirely on their own or with assistance through cooperation talks or family counselling. Only ten per cent of the parents receive help from the court to solve the questions mentioned.xxxi[31] The parents often turn to the municipalities themselves to receive assistance in reaching an agreement. However, after a case regarding custody, residency or access has been brought before a district court, the court may refer the matter to the social welfare committee. The court’s option to institute cooperation talks does not as such depend on the parents’ consent, and
cooperation talks are ordered as soon as the court assumes that they may serve a purpose. Whether the cooperation talks may be considered unproductive if they are carried out without the voluntary participation of the parents is another matter. Also, there are no sanctions that can be imposed in order to make the parents attend the cooperation talks. However, it cannot be i gnored that a parent who refuses to participate in cooperation talks without cause may show thereby evidence of a lack of willingness to attend to what is the best interest of the child In certain situations, such as when one parent has been abused by the other, it may be totally inappropriate to institute cooperation talks. xxxii[32] In Finland, the Finnish Marriage Act contains an entire Chapter to family mediation(Chapter V). The basic guideline that it establishes is that '[d]isputes and legal matters arising in a family should primarily be settled in negotiations between the family members and decided by agreement. xxxiii[33] The general lanning, monitoring and control of mediation is entrusted to the State Provincial Offices, under the supervision of the Ministry of Social Affairs and Heal th. The Municipal board of Social Welfare is in charge of arranging family mediation in a municipality and mediation may be rendered also by societies, associations and foundations as well as by individuals, authorised thereto by the State Provincial Office (cf. Section 22) The authorisation te practise mediation is granted by the State Provincial Office for a fixed period, not exceeding five years at a time, and may be revoked if there is a reason for this (cf. Section 23(2)) In 1996 an amendment was made to the finnish Marriage act in order to ensure that family mediators services are also available to solve problems arising from the implementation of an approved agreement or a court decision on child custody or right of access (Section 20 (3) Finnish Marriage Act). It is at this stage of the enforcement of custody or right of access agreements or decisions, that mediation has had a greater impact. To handle these cases, the first thing that the relevant court does is to appoint a mediator for the case. Accordingly, mediation is mandatory, except when the decision or approved agreement is recent (less than three months), in urgent cases and when the enforcement of mediation has already failed (Chapter 2, Finnish Act of the Enforcement of Decision on Child Custody and Right of Access). xxxiv[34] In Denmark. from 2001 onwards mediation has been offered as an lternative to counselling in the County Governor's offices which usually deal with consensual divorces and spousal maintenance, child support, contact arrangements and adoption
cooperation talks are ordered as soon as the court assumes that they may serve a purpose. Whether the cooperation talks may be considered unproductive if they are carried out without the voluntary participation of the parents is another matter. Also, there are no sanctions that can be imposed in order to make the parents attend the cooperation talks. However, it cannot be ignored that a parent who refuses to participate in cooperation talks without cause may show thereby evidence of a lack of willingness to attend to what is the best interest of the child. In certain situations, such as when one parent has been abused by the other, it may be totally inappropriate to institute cooperation talks.xxxii[32] In Finland, the Finnish Marriage Act contains an entire Chapter to family mediation (Chapter V). The basic guideline that it establishes is that ‘[d]isputes and legal matters arising in a family should primarily be settled in negotiations between the family members and decided by agreement’.xxxiii[33] The general planning, monitoring and control of mediation is entrusted to the State Provincial Offices, under the supervision of the Ministry of Social Affairs and Health. The Municipal Board of Social Welfare is in charge of arranging family mediation in a municipality and mediation may be rendered also by societies, associations and foundations as well as by individuals, authorised thereto by the State Provincial Office (cf. Section 22) The authorisation to practise mediation is granted by the State Provincial Office for a fixed period, not exceeding five years at a time, and may be revoked if there is a reason for this (cf. Section 23(2)). In 1996 an amendment was made to the Finnish Marriage Act in order to ensure that family mediators’ services are also available to solve problems arising from the implementation of an approved agreement or a court decision on child custody or right of access (Section 20(3) Finnish Marriage Act). It is at this stage of the enforcement of custody or right of access agreements or decisions, that mediation has had a greater impact. To handle these cases, the first thing that the relevant court does is to appoint a mediator for the case. Accordingly, mediation is mandatory, except when the decision or approved agreement is recent (less than three months), in urgent cases and when the enforcement of mediation has already failed (Chapter 2, Finnish Act of the Enforcement of a Decision on Child Custody and Right of Access).xxxiv[34] In Denmark, from 2001 onwards mediation has been offered as an alternative to counselling in the County Governor’s Offices, which usually deal with consensual divorces and spousal maintenance, child support, contact arrangements and adoption
The courts resolve the major issue of who should have custodial responsibility, but cannot make contact orders. The Danish government promotes a standard package of contact arrangements which can be altered by agreement. If there is a dispute about contact, the matter is initially dealt with by a lawyer in the County Governors Office, who contacts the parents and arranges a meeting with them, where they are advised to attend counselling or mediation. If the problems cannot be resolved by counselling or mediation, then the lawyer in the County Governor's office issues an order which is enforceable in the courts. It is reported that in sixty-four per cent of mediations a complete solution has been found and in eighteen per cent of cases the conflict has been partly solved. Alongside the counselling and mediation offered by the administrative authorities, experimental mediation programmes have started in some courts. xxxv[35] In the situation of the nordic countries. the existence of mandatory mediation in some countries and under certain circumstances is noteworthy since this is contrary to the understanding of family mediation in most European countries. It is well known that Recommendation R(98)1 of the Council of Europe provides that '[m]edition should not, in principle, be compulsory(II a). xxxvi[36 However, the Proposal for a Directive on certain aspects of mediation in civil and commercial matters is not in line; it provides: This Directive is without prejudice to national legislation making the use of mediation compulsory or subject to incentives or sanctions, whether before or after judicial proceedings have started, provided that such legislation does not impede on the right of access to the judicial system xxxvii[37 In the United States, where mediation is mandatory in 13 states- except in cases of domestic violence and in 22 states judges are given the discretion to order couples to enter mediation, empirical data provide supportive evidence that mandatory mediation is much more effective than a purely voluntary process. xxxviii[38 It has to be borne in mind, moreover, that mandatory mediation does not mean that the parties have to agree to anything, but only that they have to attend a mediation session; they are not obliged to continue if they do not want to 2. 4 Family mediation in Western Europe I use the term Western Europe here not in the sense that was used in the Cold War era, but to refer to European countries geographically located in Western and Central Europe
The courts resolve the major issue of who should have custodial responsibility, but cannot make contact orders. The Danish government promotes a standard package of contact arrangements which can be altered by agreement. If there is a dispute about contact, the matter is initially dealt with by a lawyer in the County Governor’s Office, who contacts the parents and arranges a meeting with them, where they are advised to attend counselling or mediation. If the problems cannot be resolved by means of counselling or mediation, then the lawyer in the County Governor’s Office issues an order which is enforceable in the courts. It is reported that in sixty-four per cent of mediations a complete solution has been found and in eighteen per cent of cases the conflict has been partly solved. Alongside the counselling and mediation offered by the administrative authorities, experimental mediation programmes have started in some courts.xxxv[35] In the situation of the Nordic countries, the existence of mandatory mediation in some countries and under certain circumstances is noteworthy since this is contrary to the understanding of family mediation in most European countries. It is well known that Recommendation R (98)1 of the Council of Europe provides that ‘[m]ediation should not, in principle, be compulsory’ (II a).xxxvi[36] However, the Proposal for a Directive on certain aspects of mediation in civil and commercial matters is not in line; it provides: ‘This Directive is without prejudice to national legislation making the use of mediation compulsory or subject to incentives or sanctions, whether before or after judicial proceedings have started, provided that such legislation does not impede on the right of access to the judicial system . . .’xxxvii[37] In the United States, where mediation is mandatory in 13 states - except in cases of domestic violence - and in 22 states judges are given the discretion to order couples to enter mediation, empirical data provide supportive evidence that mandatory mediation is much more effective than a purely voluntary process.xxxviii[38] It has to be borne in mind, moreover, that mandatory mediation does not mean that the parties have to agree to anything, but only that they have to attend a mediation session; they are not obliged to continue if they do not want to. 2.4 Family mediation in Western Europe I use the term ‘Western Europe’ here not in the sense that was used in the Cold War era, but to refer to European countries geographically located in Western and Central Europe
