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Legislative Workshop: Family Mediation Practices

Legislative Workshop: Family Mediation Practices. Family Mediation Practices in Europe and its link with Domestic Violence. Maria Oliveira. Family Mediation References. CoE Recommendation No(98)1 on family mediation

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Legislative Workshop: Family Mediation Practices

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  1. Legislative Workshop: Family Mediation Practices Family Mediation Practices in Europe and its link with Domestic Violence Maria Oliveira

  2. Family MediationReferences • CoE Recommendation No(98)1 on family mediation • CEPEJ Guidelines for a better implementation of the existing recommendations concerning family mediation and mediation in civil matters • European Code of Conduct for mediators • Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters

  3. Family Mediation Practices in Europe • Mediation and Domestic Violence

  4. Family Mediation Practicesin Europe

  5. Family mediationCultural differences A picture of mediation in Europe would resemble a constantly 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 in a single design. A variegated patchwork that recognises cultural differences is preferable than uniformity. Lisa Parkinson, family mediator

  6. Family Mediation Practices in EuropeOverview • Legislation • Referral • Code of conduct • Training • Costs • Enforceability

  7. Family Mediation Practices in EuropeLegislation • Most EU States have not adopted provisions on family mediation • However, in certain MS, specific provisions on family mediation were adopted (v.g. Spain, France, Ireland) • Parties have been expected to consider the use of family mediation by attending a Mediation Information Meeting, before the application to court – MIAM (England and Wales) • Public monitoring system (Portugal) • Law of Procedure in case of minors (Poland) • Law on mediation for victims of domestic violence (Greece) • No public regulatory body (v.g. England and Wales)

  8. Family Mediation Practices in EuropeReferral • Voluntary choice, consent of the parties, in general • Parental authority or interim measures in divorce cases, the court may direct the parties to attend a briefing meeting, free of charge (v.g. France) • The judge appoints a mediator in cases involving minors (Poland)

  9. Family Mediation Practices in EuropeCode of Conduct • In general, family mediators are binding to Codes of Conduct based on the Code of Conduct of Mediators • There are not a binding Code of Conduct (Austria) • Mediators are guided, whether they subscribe directly or via the body that employs them – FENAMEF, APMF - by ethical codes charters (v.g. France)

  10. Family Mediation Practices in EuropeTraining 1/2 • There is no restriction for the use the title of mediator (v.g. Austria) • Family mediators come from a variety of backgrounds and there is no legal requirement that they undertake any specialist training provided by the private sector, which is self-regulated. (v.g. England and Wales) • Training is regulated by a public entity (v.g. Federal Mediation Commission in Belgium, Estonian Union for Child Welfare, in Estonia, Family Support Agency, in Ireland, Ministry of Justice, Portugal) but it is provided by the private sector.

  11. Family Mediation Practices in EuropeTraining 2/2 • Training is regulated by a public entity (v.g. Federal Mediation Commission in Belgium, Estonian Union for Child Welfare, in Estonia, Family Support Agency, in Ireland, Ministry of Justice, Portugal) but it is provided by the private sector. • Generic mediation training - 60 hours - and specific in family - plus 30 hours - divided between theoretical and practice (v. g. Belgium and Ireland) • Family mediation training -100 hours up to 330 hours (v.g. Spain) • Diplôme de Médiateur Familial – 560 hours (France)

  12. Family Mediation Practices in EuropeCosts • Free of charge (v.g. Spain) • Agreement between the parties (v.g. Ireland) • The National Family Allowance Fund has put in place a system of agreements to cover costs (v.g. France) • Legal aid (v.g. Belgium, Engand and Wales, Portugal) • MIAM and 1st session is free (England and Wales) • No legal aid (v.g. Germany)

  13. Family Mediation Practices in EuropeEnforceability In general, pursuant the provisions of the EU Directive on Mediation, the settlement agreements are enforceable by the judge or other equivalent entity (v.g. England and Wales, France, Portugal, etc)

  14. Mediation and Domestic Violence

  15. CoE Convention on preventing and combating violence against women and domestic violence12 April 2011 Article 3/b “domestic violence” shall mean all of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim”

  16. Family Mediation andDomestic Violence • Divisive debate concerning the appropriateness of mediation in cases where domestic violence is an issue.

  17. Family Mediation andDomestic Violence - For • Mediation can appropriately be used in domestic violence cases if the type of domestic violence is taken into account and mechanisms to ensure a safe and fair settlement for the victim are provided. • The choice of those who have suffered violence to make new arrangements through mediation needs to be respected, otherwise there is a very clear risk that these people could be further disempowered, be regard as infants and be treated as being perpetual victims incapable of decision making. • It is argued that the power imbalances caused by such abuse can be counterbalanced or eliminated by means of a combination of specific mediator skills and structural safeguards.

  18. Family Mediation andDomestic Violence • Mediation can appropriately be used in domestic violence cases if the type of domestic violence is taken into account and mechanisms to ensure a safe and fair settlement for the victim are provided. • The choice of those who have suffered violence to make new arrangements through mediation needs to be respected, otherwise there is a very clear risk that these people could be further disempowered, be regard as infants and be treated as being perpetual victims incapable of decision making. • Proponents of mediation put forward the argument that the imbalance of power exists in the legal process.

  19. Family Mediation andDomestic Violence - Against • Victims would not be able to articulate their own needs and interests because they as so disempowered that they are not capable of making decisions because they cannot negotiate in equal footing as the abuser. • Mediation do not treat domestic violence as a crime and as removing the issue of violence to a private forum where there is no accountability and no sanction for the abuser. • Domestic violence makes a fair, safe or mutually acceptable settlement an impossibility.

  20. CoE Convention on preventing and combating violence against women and domestic violence12 April 2011 Article 48/1 Parties shall take the legislative or other measures to prohibit mandatory alternative dispute resolution processes, including mediation and conciliation, in relation to all forms of violence covered by the scope of this Convention. Therefore: • Mandatory mediation in family cases is unsuitable • It is possible to mediate in such cases

  21. Family Mediation andDomestic Violence • Strategies • Initial screening/introductory session with one of the parties to the conflict • Facilitates the screening of domestic violence • Stress the voluntary nature of mediation • Explain in detail what mediation is about – a non-adversarial means of dispute resolution – not a means to prevent or solve domestic violence cases • Give the opportunity to choose so that they are not placed in a situation where they can be intimidated into attending mediation and into making agreements against their interests

  22. Family Mediation andDomestic Violence • Pre-mediation screening is an effective method in helping discover the existence of domestic violence and possible imbalance of power in a relationship • Mediators should provided the best level of safety for their clients • Particular management in such cases • Public waiting areas • Separate arrival times • Shuttle mediation • Use of caucus sessions

  23. Family Mediation andDomestic Violence • Will they and their children who have witnessed the violence and have been living in a highly conflictual situation be better served by a less formal process with less safeguards but hopefully speedier resolution and some potential for personal development or • A more structured safeguard process which is however likely to take much longer, drain more of the family resources and encourage a higher level of conflict and adversarial behavior between the parties? • I don’t know, but I’ll try to find out! Sabine Walsh, family mediator

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