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