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
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 childrens 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 couples 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 judges
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,
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.
One of the questions of the questionnaire dealt with in Volume 1 was:
Are attempts at conciliation,
information meetings or mediation attempts required?
A new book under the
auspices of this Commission, which will most probably be published in 2005,
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 childs residence
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
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.
Let us have a look at
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.
, 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.
, 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.
The situation is similar in Russia
, 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
, 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.
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.
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.
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
clearly shows this overlap in the Serbian
Draft Law on Family which introduces mediation.
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
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.
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
2.2 Family mediation in Southern Europe
The situation in
Southern Europe is very diverse. In Greece,
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.
, 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.
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.
In this section on Southern European
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.
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
In the meantime, the Draft Bill was taken as a model by other Autonomous
Communities for their own legislation and two other Autonomous Communities,
also passed their family mediation Acts in 2001; the Canary Islands followed
suit in 2003
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.
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.
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.
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 others 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.
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 courts 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 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.
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
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).
In Denmark, from 2001 onwards mediation has been offered
as an alternative to counselling in the County Governors 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 means of counselling or mediation, then the lawyer in the
County Governors 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.
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).
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 . . .
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
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
In Germany, family mediation appeared in the mid-1980s in
the south of Germany and it did not become well known in the north of Germany until the beginning of the 1990s. Divorce
mediation and separation mediation are offered mainly by practitioners in
private practices. However, youth offices and other social services also offer
family mediation within the framework of counselling services for separation
At the beginning of the 1990s, all
mediators organised themselves around two mediation associations, the Bundesverband für Mediation
(BM) and the Bundesarbeitsgemeinschaft für
(BAFM). The BM has its roots in the peace movement and,
therefore, is much more concerned with mediation in the broadest sense of
social conflict. For this reason, the focus of the association is not only
family mediation, but also different areas of conflict such as school
relations, industrial relations involving young people, neighbourhood problems,
environmental conflicts, etc. By contrast, the BAFM, founded in 1992 by a group
of family mediators who had learnt the theoretical basis of mediation from the United States, was specifically aimed at family mediation.
The expansion of their interests to other areas of conflict has taken place
over the last few years.
An essential difference between the
two associations is their position regarding who can be trained as a mediator
and what previous training is required. Owing to its origins and philosophical
background, the BM does not require mediators to have any previous academic
training and grants qualification as a mediator on the grounds of a persons
practical experience. By contrast, the training offered by the BAFM is aimed at
lawyers and professionals in psychology or fields related to psychology. From
the outset, this association has emphasised that family mediation is a specific
field for specialists from different professional backgrounds who offer family
mediation as a second professional activity. The Bundesrechts-anwaltskammer
(Federal Chamber of Lawyers), however,
does not seem to share this opinion, and considers mediation a clear legal
counselling activity and, therefore, a field of activity which should be
exclusively reserved for lawyers.
Over the years, the BAFM has
developed a very high standard of training for its members as well as a code of
practice which closely follows the European Recommendation of 1998.
In the meantime, both the code of practice and the professional training
standards have also been accepted by the BM. Nevertheless, these standards are
not binding, which has led to differentiated training orientations. Many
mediators also engage in other specific training opportunities, since in most
cases they cannot make a living solely as self-employed family mediators.
22.214.171.124 Origins and development
Family mediation was
introduced into France from Quebec in the late 1980s, at a time when the courts
dealing with family law matters were experiencing considerable backlogs and the
social and financial costs associated with litigation were rising rapidly.
Mediation seemed to provide a solution as professionals dealing with family
conflicts considered that courts were not always very effective in dealing with
divorce and related matters in ways that were helpful to both the parties and
In April 1988, a group of
professionals involved in family law from a number of European countries
created the Association Pour la Médiation
Their essential goals were to promote family mediation in France and Europe and to
guarantee training and other professional conditions which were necessary for
the practice of family mediation. Since the small number of family mediators
who were members of the association at the beginning had been trained in Quebec, their code of practice was initially
indistinguishable from the mainstream family mediation in North America at that time.
Soon the more progressively minded
judges, lawyers and social workers considered that family mediation was
particularly suited to dealing with family matters, since, by encouraging
mutual agreement, it contributed significantly to the reduction in bitterness
and anger associated with family conflict. In spite of the fact that there was
no law dealing with mediation, some juges
aux affaires familiales
(judges in family affairs) began to use mediation
informally in their courts.
In 1991 another important national
organisation for mediation in France, the Comité
Nationale des Associations et Services de Médiation Familiale (CNASMF -
National Committee of Associations and Services of Family Mediation), now
called Fédération Nationale de la
Médiation Familiale (FENAMEF - National Federation of Family Mediation),
This association and the AMPF still are the main national associations of
family mediation in France, the AMPF representing around 25 family mediation
services and the FENAMEF 196. There is also a smaller group called the Centre Nationale de Médiation (CNM -
National Centre for Mediation), comprised of practitioners of mediation (the
AMPF and the FENAMEF tend to be comprised of professionals involved in the
family law area, who also practise mediation).
In 1992, on the initiative of the
APMF, the European Forum Training and Research in Family Mediation was set up
with experienced family mediation trainers from a number of European countries,
and a European Charter was drawn up with the aim of setting standards and
regulating the theoretical and practical training of family mediators. Training
institutions had to meet the standards laid down in the Charter to become
accredited by the Forum. The standards include 210 hours of formal training, a
period of observation in an organisation dealing with family conflict, work experience
and the writing of a dissertation on some aspect of family mediation. On
successful completion of the training, participants receive a certificate of
aptitude in the exercise of the functions of family mediator and agree to
undertake analysis of their practice or supervision (in small groups or
individually, or both).
These standards were approved by the
European Forum at a series of meetings held in various countries which
accredited family mediation training programmes in several countries, including
France, Switzerland, Belgium, Italy, Germany and the U.K. By 2000, there were 80 such programmes in Europe. Thus, the profession regulated itself, in the
absence of any government-approved programme for the training of mediators.
However, accreditation by the European Forum Training and Research in Family
Mediation was superseded in France by the establishment, on 11
of a state diploma in family mediation, which has been regulated in detail by a
circular of 30 July 2004.
126.96.36.199 French legislation
From the start, French
mediators wanted the recognition of family mediation within the judicial system
and the establishment of recognised qualifications within France.
The considerable increase in the
number of divorce and related matters in the 1990s brought the beginnings of
support from the legislature, which has remained supportive of family mediation
ever since. On 8 February 1995, the National Assembly passed Loi no. 95/125, relating to the
organisation of legal jurisdictions and civil, penal and administrative
In 1996, a regulation elaborating in more detail the provisions of the Act was
established in a Décret.
This provided a legal framework for civil conciliation and mediation, including
According to the Act and the Decree,
a judge hearing a matter may, with the consent of the parties, appoint a third
person to hear the parties and face their differences in order to enable them
to find a solution to the conflict which divides them.
The appointment, to last up to three months, is renewable for another three
months at the request of the mediator.
Mediation may apply to a part or the whole of a matter, although the judge
remains in control and may stop the mediation at any time at the request of the
mediator or either party if it appears that continuing mediation is
If the parties so request, the judge
may ratify the agreement they put before him and thus give it executive force.
The mediator is under an obligation to keep the judge informed of any
difficulties met in the course of the mediation and, if no solution is found,
the mediator has an obligation to maintain confidentiality as no part of the
mediation is to be used before the judge hearing the matter except with the
agreement of the parties.
However, no obligation to maintain confidentiality exists when the mediator
learns of actions susceptible to criminal sanctions such as domestic violence
or abuse of a child.
This Act and the Decree can be used
in any civil law dispute (such as consumer, landlord/tenant and neighbourhood
disputes); however, it was mainly designed for family disputes.
The pilot committee for the 1997
Conference of the Family, in a report on the subject of a family law statute,
recommended to the French Prime Minister in February of that year that the
emphasis of the courts should be on early family mediation to resolve disputes.
This, it was stated, would have the following implications: that family
mediation should remain voluntary, that the level of competence should be
verified - in particular, mediators should have sufficient knowledge of family
law to enable them to carry out effective mediations - and that the financial
conditions attached to the mediation should be specified.
The changes in family law concerning
mediation have definitely been rapid since 1998, when a task force was set up
by the Chancellery to examine all aspects of family law particularly those
relating to divorce, the rights and responsibilities of parents, the rights of
children and the role of mediation. It took nearly three years and several
reports before the first legislation, entitled Reform of parental authority:
New rights for families became law on 4 March 2002. The responsible Minister for Family and
Childhood, Ségolène Royal, described mediation as an essential instrument in
the politics of family in that it permits the social costs of conflicts within
the heart of the family to be foreseen and reduced.
The legislation provided for extra funds to be given to family associations
concerned with mediation services.
The most influential legislative
measures regarding mediation resulted from a study on family mediation entitled
Arguments et propositions pour un statut
de la Médiation Familiale en France
(Arguments and proposals for a statute
on family mediation in France), presented to the Minister for the Family,
Children and Handicapped Persons and written by Monique Sassier, the Assistant
Director-General of the Union Nationale
des Associations Familiales
(UNAF - National Union of Family Associations).
The report makes thirty-six recommendations, the most important of which are:
- that legislation relating specifically to family mediation should be
- that amendments pertaining to family mediation should be inserted into
the Civil Code;
- that a consultative council on family mediation should be created;
- that a code of ethics for mediation should be created;
- that a comprehensive list of legislation and regulations concerned
with mediation should be made;
- that a diploma in family mediation to be recognised by the state
should be established;
- that an indicative national scale of the costs of family mediation
should be drawn up;
- that all the necessary administrative and financial support should be
- that the juges aux affaires
familiales should provide families that appear before them with information
about family mediation;
- that a free information session, compulsory for those families whose
conflict is severe, should be provided.
The Bill was subjected
to a long discussion in the National Assembly, but was not passed. However,
some of its sections, notably those relating to the role of the judges in
family matters, were incorporated into the Act for the Reform of Parental
Authority - New Rights for Families.
However, in the intervening three
years, almost all the reports recommendations have either been adopted or will
shortly be implemented:
- A decree, of 8 October 2001, established the Conseil national consultatif de la médiation familiale (National
Consultative Council on Family Mediation). This Council was to prepare the
requirements for and content of a certificate of aptitude in the function of
family mediator as well as a diploma of continuing education from the
Ministry of Social Affairs, together with a code of practice, and the
establishment of a national information program for the public and the legal
- A reference to family mediation has been inserted in the Civil Code
and in the new Code of Civil Procedure establishing family mediation as a
measure that can be suggested by the judge in the case of divorce or as a means
of facilitating the exercise of parental authority (Articles 255
CC or Article 1071 NCPC).
Participation in the mediation process itself is to be voluntary, confidential
and freely consented to.
- Finally, in Article 1 of Decree No 284 of 2 December, 2003, the State Council (Social Section) ordered
that a state diploma in family mediation should be created. The diploma, which
is now offered, is open to all professionals of the humane, social, legal or
medical sciences and comprises a total of 560 hours work, 70 of which are to be
devoted to practical training spread over a maximum of three years.
Only a decade and a
half after its introduction into France, family mediation has established itself
institutionally and professionally, with a strong emphasis on the preservation
of the bonds between parents and children and between the parents, whatever the
outcome of their relationship may be. In spite of that, the popularity of
mediation with its target audience, families in conflict, is still relatively
low, the majority of divorcing couples still preferring to engage lawyers.
Additionally, according to Sassiers report family mediation associations
considered that only ten per cent of the couples who were divorcing or
separating in 2001 could have gained an advantage by embarking on mediation.
2.4.3 England and Wales
In England and Wales, family mediation developed under the name of
conciliation in the early 1970s. In 1974, the Finer Report recommended that a
unified family court be established and that conciliation be the primary
means of helping couples to settle all issues arising in separation and
divorce. In 1977, Registrars at the Bristol County Court introduced a
conciliation procedure in defended divorce proceedings and in 1978 the Bristol
Courts Family Conciliation Service (BCFCS) opened as an out-of-court voluntary
pilot scheme which aimed at helping separated or divorcing parents and their
children to deal with questions of custody and access and other problems
arising from marital breakdown.
Over the next years, both in court and out of court family conciliation
services were created. National associations, such as the National Family
Conciliation Council (NFCC - 1981), the Solicitors Family Law Association (SFLA
and the Family Mediators Association (FMA) (1988)
were established. In 1993, the National Family Conciliation Council was renamed
National Family Mediation (NFM)
and this association, together with the Family Mediators Association (FMA) and
Family Mediation Scotland (FMS)
in January 1996
founded the UK College of Family Mediators, to provide national standards for
the selection, training and accreditation of family mediators and to compile a
national register of family mediators.
For many years, there has been
little official support and funding for family mediation, but the 1990 Law
Commission Report Family Law: The Ground
marked a turning point. The Government considered that mediation should play a
much greater part in the process of resolving the consequences of marital
breakdown. In a later white paper, it emphasised once again the benefits of
reaching an agreement with the help of a mediator compared with traditional
court adjudication with the intervention of partisan lawyers.
Family mediation was allotted a
central role in the reform of divorce introduced by the Family Act 1996, which
aimed at removing fault and, among other aspects, at contributing to a
situation where divorce could be carried out
(i) with minimum distress to
the parties and to the children affected;
(ii) with questions dealt
with in a manner designed to promote as good a continuing relationship between
the parties and any children affected as is possible in the circumstances; and
(iii) without costs being
unreasonably incurred in connection with the procedures to be followed in
bringing the marriage to an end.
Part II of the Act,
which was not introduced, would have required all those seeking a divorce to go
through a series of steps prior to the issuing of a divorce order. In one of
these steps, the spouses would have had to attend an information meeting at
least three months before a statement of marital breakdown was made.
At this meeting, among other kinds of information, information about mediation
would be given.
Part III of the Act - which, unlike
Part II, entered into force - introduced a more effective way of encouraging
mediation at an early stage and of reducing litigation. Under a requirement
introduced by Part III of the Family Law Act 1996, those seeking public funding
for court proceedings must first be referred by their lawyer to a
State-registered family mediator, to receive information about mediation and to
regard it as an alternative to contested court proceedings. At this preliminary
meeting, which the applicant may attend separately or with the other party, as
preferred, the mediator explains the help that can be offered through mediation
and makes an assessment with the client of the suitability of the dispute for
mediation (Section 29). Although mediation was seen as a better and cheaper
alternative to adversarial proceedings, the Family Law Act 1996 did not make
mediation compulsory: the principle that participation in mediation should be
voluntary was maintained. Although there was criticism on the requirement that
one party attend an information meeting cannot encourage mediation unless the
other party is also willing,
experience has shown that the opportunity to receive information from a
mediator at an early stage results in mediation being accepted by both parties
in a significant proportion of cases.
Between 1997 and 1999, the provision
of information under Part II of the Family Law Act 1996 was piloted in eleven
geographical areas in England and Wales. Janet Walker, from the Newcastle Centre for
Family Studies, was appointed to lead a multidisciplinary research team to
evaluate those pilots. The teams final evaluation report was published by the
Lord Chancellors Department in January 2001.
At the same time, the former Lord Chancellor announced that the Government had
decided, for a variety of reasons, not to implement Part II, which introduced
the new conditions for divorce, and that he would be asking Parliament at an
appropriate time in the future to repeal that part of the Family Law Act 1996.
Part III, referring to mediation, was extended nationally and a four-year
research study led by Professor Gwynn Davis of the University of Bristol recommended that the system of referral to
family mediation should continue to receive public funding. Section 29 of the
Family Law Act 1996 was subsequently re-enacted in the Access to Justice Act
The research on the Family Mediation
Pilot Project led by Professor Davis was based on a sample of 4,593 cases in
which couples were offered mediation as an alternative to litigation. Seventy
per cent were referred by lawyers, twelve per cent by the court and the
remainder were self-referred. The experience of mediation was generally very
- Eighty-two per cent of participants considered that the mediator had
been impartial and seventy per cent had found mediation very helpful or fairly
- Seventy-one per cent said that they would recommend mediation to
others in a similar situation.
- There was evidence from the research that mediators are now more
skilled in negotiating settlements.
- Of those couples who reached some level of agreement, fifty-nine per
cent said they thought they would be able to negotiate modifications between
themselves if necessary.
concluded that mediation as a process has its own distinctive and positive
features and that mediation should be supported as a separate system running
parallel to the court system.
In a green paper entitled Parental Separation: Childrens Needs and
, launched in July 2004,
the British Government, in conjunction with senior judiciary and rule
committees, proposed to review relevant rules and Practice Directions in order
to give the strongest possible encouragement to parties to agree to mediation
or other forms of dispute resolution and to fund this mediation through legal
aid. The respondents to the green paper agreed on the importance of mediation
but, while some of them considered that mediation would not be effective if it
is not made compulsory, others considered that mediation would not work if
parents were forced to attend.
In a response from the Government
published in January 2005 to the respondents to the green paper, the Government
stated that it does not plan to make mediation compulsory, but will strongly
promote its use; that it will work with the senior judiciary to find the best
way to encourage parties to attend mediation and that it will look at other
ways of involving children in mediation and developing new models of
Finally, in the introduction to the
Children (Contact) and Adoption Bill published on 2 February 2005,
the government recognises that the separation of parents - which affects three
million out of the twelve million of children in Britain - can be a stressful and traumatic experience
for parents and for children as well as for their wider families. It also
recognises that, after a separation, parents are the people who know best what
will work for their families and how to bring up their children. The Bill sets
out a range of proposals to help the ten per cent of separating parents who
need to have their contact arrangements ordered by the court.
The proposals include better access to information and advice through
help-lines, the extension of in-court conciliation and contact centres and
stronger encouragement towards mediation.
2.4.4 Other countries, in particular Belgium and Austria
Mediation has had a
similar development in other countries in Western and Central Europe,
i.e. spontaneous practice, the organisation of mediators in associations, the
creation of a code of practice, the establishment of an umbrella organisation
in which the various associations participate; there is occasional reference to
mediation in Acts dealing with family matters and, finally, most recently,
debate and the drafting of general Acts concerning mediation which include
Two of the countries that have
reached this final stage are Austria (2004) and Belgium (2005).
In Austria, mediation
is carried out by two mediators (co-mediation) where one mediator has a
psycho-social basic training (as a psychotherapist, a psychologist with a
social work diploma or someone who has completed this basic training and has
experience in the field of family conflicts) and the other mediator has a legal
basic training (such as a lawyer, a notary or even a judge, or a person who has
completed legal training and is acquainted with the field of family law). Apart
from their prior basic training, all mediators must also have completed
specific training in mediation. According to the 2004 Richtlinien zur Förderung von Mediation (Directives for the
promotion of mediation), drafted by the Ministry of Social Security,
Generations and Consumer Protection,
if possible there will be a male and a female mediator in each mediating team,
and co-mediation is so strongly encouraged that any practice of mediation
departing from the principle of co-mediation requires the authorisation of the
In Austria, the first legal reference to family mediation
appeared in Section 99 Ehegesetz
(Matrimonial Act) as amended in 1999 and dealt with confidentiality.
This reference, however, has been repealed by the Federal Act on Mediation in
Civil Matters, which came into force on 1 March 2004 and established the legal framework for
mediation in all private law areas, including family law.
The First Part of the Act contains
general provisions and includes a definition of mediation. The Second Part sets
up a Council for mediation. Their members, appointed by the Ministry of Justice
for five years, are representatives of the various associations of mediators,
of the associations of legal professions and non-legal professions related to
mediation, of several federal ministries related to mediation and includes
academics with specific knowledge in the field of mediation.
The Council has authority on the preparation of regulations dealing with the
training of mediators, the certification of training institutions and teaching
programmes, the certification of mediators and their inclusion or exclusion in
the list of certified mediators.
The Third Part of the Act deals with
the conditions that must be met to be included in the list of certified
mediators. The main requirements to become a mediator are to be over 28 years
old, to have the required qualifications, not to have been sentenced for a
crime which could endanger the future activity of the mediator and to have
contracted a liability or third-party insurance at the minimum amount of EUR
With regard to the qualifications of
the mediators, the Act draws a distinction between basic qualifications,
thereby including a long list of types of training related to law, psychology
and social work, and specific training which can be offered only by certified
The Fourth Part of the Act deals
with the rights and duties of mediators, and it includes an outline of the
usual rights and duties of mediators established in codes of practice, such as
the duty to explain to the parties what mediation is, the duty to refrain from
mediating when there is a conflict of interests between the mediator and one of
the parties, the duty to keep a detailed record of the mediation process, to
respect voluntariness and confidentiality, to have insurance cover, to receive
a minimum of fifty hours further training every five years, etc.
The Fifth Part of the Act deals with
the suspension of the running of the period of prescription of actions related
to the rights and duties which are dealt with in the mediation procedure but
its parties. Although
the parties may, by an agreement in writing, extend the suspension to other
matters, in the case of family mediation this written agreement is not
necessary and the Act states that, unless otherwise stated by the parties,
suspension extends to all family law actions between the mediating parties.
Other parts of the Act deal more
specifically with the requirements that must be met to obtain certification as
a training institution and the sanction that may be imposed on mediators,
training institutions or other persons who infringe on the provisions of the
In the case of family mediation, one
hour of mediation is to cost EUR 182 per mediator team (2004 fees).
Depending on the income of each family - which the participants in mediation
have to show by presenting salary sheets, declaration of income, etc. - and on
the number of children under maintenance of the mediating parties, the Federal
Ministry of Social Security, Generations and the Protection of Consumers
provides a subsidy for the mediation, i.e. the mediating parties must pay part of
it. The mediators assess the amount of the contribution by the parties which is
then directly paid by them and they arrange for the remaining payment with the
subsidised associations and the Ministry. The Ministry subsidises five
associations, to which all licensed mediators belong
The Belgian Code judiciaire (Judicial Code - CJ) was
amended by the Statute of 19 February 2001 concerning family mediation in order to
introduce family mediation (cf. Article 734 bis
- 734 sexies CJ). According to these
provisions, the judge may appoint a mediator on his or her own initiative in
disputes concerning the consequences of marriage, divorce, parental
responsibility and cohabitation if the parties concerned agree to mediation and
also decide on the person who will act as mediator. Mediation may also take
place at the request of the parties concerned. During mediation, the judicial
procedure is suspended.
In February 2005, the Belgian
Parliament passed an Act which modifies the Judicial Code with regard to
The Act repeals the 2001 Act dealing with family mediation and introduces
mediation into the Judicial Code as an all-purpose tool for the resolution of
conflicts, extending mediation to all disputes on civil and commercial matters
that can be solved by means of settlement.
The Act sets up a Federal Commission
of Mediation consisting of one general commission and three specific
commissions devoted, respectively, to family matters, civil and commercial
matters and social matters. The general commission has six members (two civil
law notaries, two lawyers and two representatives from the mediators who are
neither civil law notaries nor lawyers). All of them, however, have to be
experts in mediation. The specific commissions are composed along the same
lines (cf. Article 1727 CJ). This composition, which gives two thirds of the
places to lawyers in preference to other professions, has already been sharply
criticised in parliamentary proceedings.
The general commission is entrusted
with the approval of organisations providing training for mediators and their
training programmes and has the power to establish the standards for the
certification of mediators according to the type of mediation. Additionally,
the commission certifies mediators, imposes disciplinary sanctions including
removal, makes and circulates the lists of mediators and develops the code of
The main principles that underpin
the new Act are:
a) The mediator is technically competent, independent and impartial.
b) There is a guarantee that the information gathered during mediation
remains confidential and that it will not be used in any subsequent
c) Mediation is on a voluntary basis.
d) The mediation agreement can easily and readily be transformed into an
enforceable agreement; for this purpose, the agreement is ratified by the judge
(in French, homologation) and his
power to refuse ratification is reduced. Accordingly, the judge may only refuse
ratification if the agreement is contrary to public policy or, in the case of
family mediation, if the agreement is detrimental to the interests of underage
children (cf. Article 1733(II) CJ). However, this has been subject to
criticism, since some experts have considered that the control of the judge
should have been extended to analyse whether the rights of defence of the
parties and of third parties had been honoured and whether the consent given to
a waiver of rights has been informed and free.
e) The parties do not suffer a legal disadvantage if they do not reach
an agreement. For this reason, the Act pays special attention to the suspension
of the period of prescription of the rights and actions. Accordingly:
- in the case of the so-called médiation
volontaire, i.e. mediation unrelated to judicial proceedings, the
suspension of prescription commences with the signature of the protocol by
which the parties initiate mediation (cf. Article 1731(3) CJ) and ends one
month after one of the parties or the mediator has duly notified the other
party of its intention to end mediation (cf. Article 1731(4) CJ);
- in the case of the so-called médiation
judiciaire, i.e. when the parties request mediation after having started
judicial proceedings, the suspension of the procedural periods starts at the
moment when the parties jointly request the judge to order mediation (cf.
Article 1734(5) CJ).
A much criticised
aspect of the Act is that, in the case of médiation
volontaire, i.e. mediation unrelated to judicial proceedings, the mediator
need not be certified. Therefore, non-professional mediators will be able to
conduct mediation in this area, although they will not be able to request the
courts to certify the agreements they reach with their clients, since for
certification by the courts it is necessary for the mediator to be professionally
qualified, i.e. in the sense of certified mediator (médiateur agrée).
This paper was presented at the conference Divorce Mediation, held
at the Academy of European Law (Trier, Germany) on 10 and 11 March 2005.
Professor of Civil Law, Observatory of European and Comparative
Private Law, University of Girona, Spain.
For more details, see <http://www.law.uu.nl/priv/cefl>
and Walter Pintens, Europeanisation of Family Law, in Katharina Boele-Woelki
(ed.), Perspectives for the Unification
and Harmonisation of Family Law in Europe, Antwerp/Oxford/New York,
Intersentia, 2003, pp. 3-33.
Katharina Boele-Woelki, Bente Braat and Ian Sumner (eds), European Family Law in Action, vol. I, Grounds for Divorce, Antwerp/Oxford/New
York, Intersentia, 2003, and European
Family Law in Action, vol. II, Maintenance
between Former Spouses, Antwerp/Oxford/New York, Intersentia, 2003.
Cf. Boele-Woelki, Braat and Sumner, European Family Law in Action, vol. I, pp. xiv-xvii. Owing to the
fact that the questionnaire is organised in alternative sets of answers
according to the specific peculiarities of the different legal systems, the
same question appears under questions 17, 27, 41 and 50.
Lisa Parkinson, in Chapter 9, The Future of Family Mediation in
the revised version of the Spanish edition of her book Family Mediation (forthcoming).
See Milana Hrusaková, in Boele-Woelki, Braat and Sumner, European Family Law in Action, vol. I,
Question 17, Czech Republic, p. 225, and Parental
Responsibilities, National Report: Czech Republic, Question 57 at <http://www2.law.uu.nl/priv/cefl/Reports/pdf2/Czech%20Republic.pdf>.
Cf. Andrzej Mczy½ski, in Boele-Woelki, Braat and Sumner, European Family Law in Action, vol. I, Question 17, pp. 228-229,
and Andrzej Mczy½ski and Jadwiga Mczy½ska in Parental
Responsibilities, National Report: Poland, Question 57 at <http://www2.law.uu.nl/priv/cefl/Reports/pdf2/Poland.pdf>.
See Emilia Weiss, in Boele-Woelki, Braat and Sumner, European Family Law in Action, vol. I,
Question 17, Hungary, pp. 226-227, and Emilia Weiss and Orsolya Szeibert, in Parental Responsibilities, National
Report: Hungary Question 57 at <http://www2.law.uu.nl/priv/cefl/Reports/pdf2/Hungary.pdf>.
An English version of the Hungarian Act LV of 2002 on Mediation was provided by
Orsolya Szeibert at the Academy of European Law conference Divorce Mediation.
See Velina Todorova, Possibilities and Limits of Family Mediation:
The Case of Bulgaria, a paper delivered at the Academy of European Law Conference Divorce Mediation.
According to the translation provided by Velina Todorova at the Academy of European Law Conference Divorce Mediation.
See Todorova, Possibilities and Limits of Family Mediation, p. 3.
ek Stani, Self-Determination in Parent-Child Relationships in Serbia and
Montenegro, in Miquel Martín-Casals and Jordi Ribot Igualada (eds), The Role of Self-Determination in the
Modernisation of Family Law in Europe, Girona, Documenta Universitaria (forthcoming
Lisa Parkinson, Family
Mediation, London, Sweet and Maxwell, 1997, pp. 9-10.
See Angela DAngelo, Un contributo per un approccio giuridico allo
studio della mediazione familiare, Familia
(2004), pp. 543-549.
Cf. Salvatore Patti, Liliana Rossi Carleo and Elena Bellisario, in
Boele-Woelki, Braat and Sumner, European
Family Law in Action, vol. I, Questions 3 and 17, pp. 62 and 228, and
Salvatore Patti in Parental
Responsibilities, National Report: Italy,
Question 57 at <http://www2.law.uu.nl/priv/cefl/Reports/pdf2/Italy.pdf>.
See also Paola Ronfani, Children, Law and Social Policy in Italy, International Journal of Law, Policy and the
Family, 15 (2001), pp. 276-289.
See Miquel Martín-Casals, Jordi Ribot and Josep Solé in
Boele-Woelki, Braat and Sumner, European
Family Law in Action, vol. I, Question 17, pp. 229-230, and Cristina
González Beilfuss in Parental
Responsibilities, National Report: Spain, Question 57 at <http://www2.law.uu.nl/priv/cefl/Reports/pdf2/Spain.pdf>.
See also Miquel Martín Casals, La mediación familiar: concepto y principios
generales en las iniciativas legislativas españolas, Familia (2001), pp. 1125-1153.
Ley 1/2001, de 15 de marzo, de mediación familiar de Cataluña DOGC
núm. 335526, de 26.3.2001, p. 4380, BOE núm. 91, de 16.4.2001, p. 13797, rect.
DOGC núm. 3548, de 8.1.2002 , p. 276.
Ley gallega 4/2001, de 31 de mayo, reguladora de la mediación familiar DOG
núm. 117, de 18.6.2001, p. 8113, BOE 2 julio 2001, núm. 157, p. 23425.
Ley valenciana 7/2001, de 26 de noviembre,
reguladora de la mediación familiar en el
ámbito de la Comunidad Valenciana DO. Generalitat Valenciana núm. 4138, de
29.11.2001, p. 25105, BOE núm. 303, de 19.12.2001, p. 48192.
Ley canaria 15/2003, de 8 de abril, de mediación familiar de Canarias BO. Canarias núm. 85, de 6.5. 2003, p. 7136; BOE núm. 134, de 5.6.2003,
See Martín Casals, La mediación familiar, pp. 1125 et seq.
See Tone Sverdrup, in Boele-Woelki, Braat and Sumner, European Family Law in Action, vol. I, Question 50, Norway, p. 443, and Peter
Lødrup and Tone Sverdrup in Parental
Responsibilities, National Report: Norway, Question 57 at <http://www2.law.uu.nl/priv/cefl/Reports/pdf2/Norway.pdf>.
See Maarit Jänterä-Jareborg, in Boele-Woelki, Braat and Sumner, European Family Law in Action, vol. I,
Question 17, Sweden, p. 231, and Maarit Jänterä-Jareborg, Anna Singer and
Caroline Sörgjerd in Parental
Responsibilities, National Report: Sweden, Question 57 at <http://www2.law.uu.nl/priv/cefl/Reports/pdf2/Sweden.pdf>.
See, in more detail, Eva Ryrstedt, The Childs Right to Speak in Matters
concerning Custody, Residency or Access, in Miquel Martín-Casals and Jordi
Ribot Igualada (eds), The Role of Self-Determination
in the Modernisation of Family Law in Europe, Girona, Documenta
Universitaria (forthcoming 2005).
See Ryrstedt, Childs Right to Speak.
See Matti Savolainen, in Boele-Woelki, Braat and Sumner, European Family Law in Action, vol. I,
Question 17, Finland, p. 226, and Kirsti Kurki-Suonio, in Parental Responsibilities, National Report: Finland, Question 57 at
See Andrew I. Schepard, Children,
Courts and Custody: Interdisciplinary Models for Divorcing Families, Cambridge, Cambridge University
Press, 2004, pp. 58-60.
See Nina Dethloff and Dieter Martiny in Parental Responsibilities, National Report: Germany,
Question 57 at <http://www2.law.uu.nl/priv/cefl/Reports/pdf2/Germany.pdf>.
See, in more detail, Marie Hilgenfeld, Familienmediation in Deutschland.
Projekt Matilde at <http://www.skf-hameln.de/matilde/fami.htm>
and Hans-Georg Mähler and Gisela Mähler, Familienmediation, in Fritjof Haft
and Katharina Gräfin von Schlieffen (eds), Handbuch
der Mediation, München, Beck, 2002, pp. 891-928.
In this sense, Hilgenfeld, Familienmediation in Deutschland.
See AMPF website at <www.mediationfamiliale.asso.fr>
See also Irène Théry, Preface, in A. Babu, I. Biletta, N. Mariller, P.
Bonnoure-Aufiere, M. David-Jougneau, S. Ditchev and A. Girot, Médiation familiale. Regards croisés et
perspective, editions ERES, 1997, <http://www.fmcp.org/Mediation_familliale/livremf1.htm>.
See Monique Sassier, Arguments
et propositions pour un statut de la médiation familiale en France, rapport
remis à Madame la Ministre déléguée à la Famille, à lEnfance et aux Personnes
Handicapées, par Monique Sassier, Directrice Générale Adjointe, Union Nationale
des Associations Familiales, 2001 at <http://www.ladocfrancaise.gouv.fr/brp/notices/014000484.shtml>.
Décret n° 2003-1166 du 2 décembre 2003 portant création du diplôme dEtat
de médiateur familial, JO n° 284 du 9 décembre 2003, p. 20964.
Loi nº 95-125 du 8 février 1995, relative a lorganisation des
juridictions et à la procédure civile, pénale et administrative, JO nº 34 du 9
février 1995, p. 2175.
Décret nº 96-652, du 22 juillet 1996, relatif à la conciliation et à la
mediation judiciaries (JO nº 170 du 23 juillet 1996).
See Art. 21 Loi and Art.
131-1 Décret (my translation).
See Art. 131-3 Décret.
See Arts. 131-2 and 131-10 Décret.
See Art. 24 Loi and Art.
Sassier, Arguments et
propositions pour un statut de la médiation familiale en France, pp. 83 et seq.
With regard to the mesures
provisoires in the case of divorce, Art. 255 of the French Civil Code
provides: Le juge peut notamment: 1° Proposer aux époux une mesure de
médiation et, après avoir recueilli leur accord, désigner un médiateur familial
pour y procéder ; 2° Enjoindre aux époux de rencontrer un médiateur familial
qui les informera sur lobjet et le déroulement de la médiation ; 3° Statuer
sur les modalités de la résidence séparée des époux . . .
Art. 373-2-10: En cas de désaccord, le juge sefforce de concilier
A leffet de faciliter la
recherche par les parents dun exercice consensuel de lautorité parentale, le
juge peut leur proposer une mesure de médiation et, après avoir recueilli leur
accord, désigner un médiateur familial pour y procéder.
Il peut leur enjoindre de
rencontrer un médiateur familial qui les informera sur lobjet et le
déroulement de cette mesure.
Art. 1071: Le juge aux affaires familiales a pour mission de tenter
de concilier les parties.
Saisi dun litige, il peut
proposer une mesure de médiation et, après avoir recueilli laccord des
parties, désigner un médiateur familial pour y procéder.
La décision enjoignant aux
parties de rencontrer un médiateur familial en application des articles 255 et
373-2-10 du code civil nest pas susceptible de recours.
See Arrêté du 12 février 2004 relatif au diplôme dÉtat de médiateur
familial, JO nº 49 du 27 février 2004, p. 3961.
See Sassier, Arguments et
propositions pour un statut de la médiation familiale en France, p. 67,
where it is stated that les associations indiquent que 10 %, à lheure
actuelle, des couples en cours de séparation ou de divorce tireraient profit de
See Nigel Lowe, in Parental
Responsibilities, National Report: England
and Wales, Question 57 at <http://www2.law.uu.nl/priv/cefl/Reports/pdf2/England.pdf>
and Parkinson, Family Mediation, pp.
475 et seq. See also Dame Brenda Hale, David Pearl, Elizabeth J. Cooke and
Philip D. Batyes, The Family, Law and
Society: Cases and Materials, 5th edn, London, Butterworths/LexisNexis,
2002, pp. 295 et seq.
See Parkinson, Family
Mediation, pp. 475-485, and Hale et al., Family, Law and Society, pp. 295 et seq.
Family Law: The Ground for
Divorce (Law Com. No. 192, 1990).
Looking to the future:
Mediation and the Ground for Divorce (Cm. 2799
(1995)), paras 5.21-5.25.
Family Law Act 1996, Pt II, s. 8.
See Stephen M. Cretney, Judith M. Masson and Rebecca Bailey-Harris, Principles of Family Law, London, Sweet and
Maxwell, 2003, pp. 303 et seq. and 617 et seq.
Janet Walker (Research Director), Information Meetings and Associated Provisions within the Family Law
Act 1996: Final Evaluation Report, 3 Vols, research conducted by the Centre
for Family Studies at the University of Newcastle upon Tyne, 2001, at <http://www.dca.gov.uk/family/fla/fullrep.pdf>.
Gwynn Davis et al., Monitoring
Publicly Funded Family Mediation: Report to the Legal Services Commission, London, Legal
Services Commission, 2000.
Green paper, Parental
Separation: Childrens Needs and Parents Responsibilities, July 2004.
See, in more detail, the working paper presented by Lisa Parkinson
at the Trier Conference. I thank her for giving me the opportunity to exchange
points of views with regard to family mediation in England
and Wales and for having been able to consult her in the final stage of the
elaboration of my own paper.
See, e.g., for the Netherlands, Katharina Boele-Woelki, Wendy Schrama and Machteld Vonk, in Parental Responsibilities, National
Report: The Netherlands, Question 57 at <http://www2.law.uu.nl/priv/cefl/Reports/pdf2/Netherlands.pdf>.
See also Annie de Roo and Rob Jagtenberg, Mediation in the Netherlands: Past - Present - Future, Electronic
Journal of Comparative Law, 6 (2002) 4, at <http://www.ejcl.org/64/art64-8.pdf>
and the website of Nederlands Mediation
Instituut (NMI) at <http://www.nmi-mediation.nl>.
§ 99(1): Ein zwischen Ehegatten zur
Erzielung einer gütlichen Einigung über die Scheidung und deren Folgen
berufsmäßig und auf der Grundlage einer fachlichen Ausbildung in Mediation
vermittelnder Dritter (Mediator) ist zur Verschwiegenheit über die Tatsachen
verpflichtet, die ihm bei den auf die gütliche Einigung abzielenden Gesprächen
anvertraut oder sonst bekannt wurden. Durch solche Gespräche sind der Anfang
und die Fortsetzung der Verjährung oder sonstige Fristen zur Geltendmachung von
Ansprüchen im Zusammenhang mit der Scheidung der Ehe gehemmt.
(2) Eine Verletzung der Verschwiegenheitspflicht nach Abs. 1 ist ebenso zu
bestrafen wie eine verbotene Veröffentlichung nach § 301 Abs. 1 StGB, sofern
dadurch ein berechtigtes Interesse verletzt wird und der in seinem Interesse
Verletzte dies verlangt. See
also Marianne Roth, in Boele-Woelki, Braat and Sumner, European Family Law in Action, vol. I, Question 27, p. 297.
29. Bundesgesetz über Mediation in Zivilrechtssachen
(Zivilrechts-Mediation-Gesetz-ZivMediatG) sowie über Änderungen des
Ehegesetzes, der Zivilprozessordnung, der Strafprozessordnung, des
Gerichtsgebührengesetzes und des Kindschaftsrechtsänderungge-setzes 2001 (BGBl
Teil I, 6. Juni 2003, Nr. 29).
See §§ 9, 11(2) and 19 ZivMediatG.
See §§ 10, 23 et seq. and 29 ZivMediatG.
See §§ 15 to 21 ZivMediatG.
See §§ 223 to 232 ZivMediatG. For a short commentary to the Act, see
Christian Fuchshuber, Mediation im
Zivilrecht. Neue Wege der Konfliktlösung, Wien, LexisNexis/ARD/Orac, 2004.
See Walter Pintens, in Boele-Woelki, Braat and Sumner, European Family Law in Action, vol. I,
Question 27, p. 298, and Walter Pintens and Dominique Pignolet in Parental Responsibilities, National
Report: Belgium, Question 57, at <http://www2.law.uu.nl/priv/cefl/Reports/pdf2/Belgium.pdf>.
The text of the Loi du 19 février 2001
- Loi relative à la médiation en matière
familiale dans le cadre dune procédure judiciaire can be found in Moniteur Belge/Belgisch Staatsblad,
03.04.2001, pp. 11218-12221, available through <http://www.ejustice.just.fgov.be/doc/rech_f.htm>.
See, e.g., the declaration of the deputies Mme Nathalie de T.
Serclaes (MR) et Mme Jacinta De Roeck (SP.A-SPIRIT), Sénat de Belgique. Session ordinaire 2004-2005. Séances plénières.
Mardi 21 décembre 2004. Séance de laprès-midi. Annales, pp. 18 and 16.
See in this sense the intervention of Mme Clotilde Nyssens (CDH), Sénat de Belgique. Session ordinaire
2004-2005. Séances plénières. Mardi 21 décembre 2004. Séance de laprès-midi.
Annales, p. 15.
See the explanation of Mme Nyssens, ibid., p. 13.