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