Family mediation is intended for families or close and extended family members. It is an effective tool for facilitating constructive communication and finding appropriate solutions for all family members who are in dispute. It is appropriate for resolving all family-related disputes, from day-to-day issues to issues that may or may not be resolved in court. According to Article 13 of the Family Code (DZ), mediation in family matters is a procedure in which participants voluntarily try to reach a peaceful solution to a dispute arising from mutual family relations with the assistance of one or more neutral third parties – mediators.
According to Article 205 of the Family Code, mediation takes place before, during, or after the initiation of court proceedings and includes assistance in regulating personal and property relations. It is primarily conducted before the initiation of court proceedings to formulate an amicable divorce proposal or a proposal for a court settlement on the custody and upbringing of the child, on their maintenance and contacts with parents or other persons, or issues of parental care affecting the child’s development. Mediation during court proceedings is conducted in accordance with the law governing alternative dispute resolution. The court may reject the proposal of the parties or participants in the proceedings who agree to try mediation and not suspend the court proceedings if, in proceedings involving a child, the suspension is not in the child’s best interests. Furthermore, mediation during court proceedings is conducted by a mediator within the framework of programs adopted and enforced by the courts in accordance with the law governing alternative dispute resolution, as stated in Article 206 of the Family Code. Mediation before and after the conclusion of court proceedings is conducted by mediators who are included in the list of mediators at the ministry responsible for the family.
Article 210 of the Family Code defines the specifics of mediation in disputes involving children, stating that a mediator may include a child who is able to understand the meaning and consequences of mediation if they believe it will benefit the child; in mediation, the mediator must always follow the principle of the best interests of the child; mediation between the parties is not carried out in cases of suspected domestic violence; a mediator who discovers during mediation that a child is in danger must notify the Centre for Social Work (CSD), and a CSD professional who participated in the mediation may not participate in drafting an opinion for the court in the procedure for protecting the child’s interests.
Peculiarities of mediation in family disputes:
- greater emotional distress of the parties: in addition to conflict, there is a strong conflict between partners in family disputes, which can also include children and their parents. There is a significant difference in the emotional states of both partners at the start of mediation in disputes arising from family breakdown. The mediator’s role is emphasized in establishing communication, summarizing, and transforming the parties’ statements and opinions so that they are more acceptable to the other party, and encouraging the client to identify their true needs, which are often hidden beneath the requirements of court proceedings. The mediator must be patient and steer the mediation process toward problem resolution.
- the principle of the child’s best interests: the mediator adheres to the principle by encouraging the parents to put the child’s best interests first when negotiating an agreement. When looking for the best solution, the mediator and the parents can consider all of the circumstances that influence the decision. If the mediator believes it is in the best interests of the child and the parties agree, they may include other persons in the mediation if they play a significant role in the child’s life. If the mediator believes that the agreement is not in the best interests of the child, they warn the parent, and if the agreement is seriously jeopardizing the child’s best interests, they may refuse further mediation participation.
- involvement of the child in mediation: the child can be involved in the mediation process if he understands the meaning of the procedure and the consequences of the decision and expresses a desire to participate in the procedure. They are only involved in resolving issues that concern them. If the mediator determines that a child is under the strong influence of one of the parents, but the authenticity of their opinion is questionable, and involvement would add to their stress, the child is not involved in the procedure. The mediator decides on the child’s participation in mediation while keeping the child’s best interests in mind.
- exception to the confidentiality principle: the confidentiality principle does not apply entirely in family mediation. If the mediator in the mediation process discovers circumstances that indicate the child is in danger, they must immediately notify the appropriate authorities. The mediator informs the mediation parties of this exception.
- transformation of a mediation agreement in family disputes into a court settlement or decision: a mediation agreement reached by the parties before or during court proceedings must be submitted to the court. The judge then holds a hearing to determine whether the proposed agreement is in the child’s best interests.
- restrictions on the parties’ disposition for the protection of the child’s best interests: the parties cannot agree that the parent waives maintenance on behalf of the child. The mediator must also ensure that the contact arrangement is realistic, considering the child’s school and extracurricular obligations, as well as the parents’ work obligations.
We are familiar with several types of family mediation:
- proactive family mediation: contentious issues arise in healthy relationships as well. Mediation is used because it is quick and efficient, saving both time and energy. Continuous resolution or conflict management contributes to relationship improvement and prevents relationship deterioration due to the accumulation of unresolved conflicts.
- reconstructive family mediation: this refers to mediation with the goal of improving the relationship by resolving key unresolved disputes that cripple or weaken it.
- divorce mediation: mediation in the divorce process assists the partners in dispersing in a more cultured manner and making better agreements, which they also put into action. Couples who disperse through mediation have better relationships, stick to agreements, and have more contact with their children than couples who disperse through court proceedings.
- post-divorce mediation: it can also be called mediation between former partners. Usually, after a breakup, there are questions or issues that the ex-partners must resolve. Mediation saves time and effort, reduces coordination stress, and helps ex-partners reach better agreements.
- mediation between other family members or relatives: mediation is also used to resolve conflicts between parents and children, siblings, half-siblings, father-in-law or mother-in-law, son-in-law or daughter-in-law, and other family relationships where participants want to resolve conflicts effectively and amicably.
- informal family mediation: when mediation skills are used to resolve disputes between family members, this is referred to as informal family mediation. A friend, relative, neighbour, or family member can assist in resolving disputes. The use of mediation skills helps all family members, especially children, develop conflict resolution skills.
Mediation in family disputes has several advantages, including the reduction of mutual settlements between spouses, extramarital partners, or same-sex partners; encourages parents to take responsibility for making decisions concerning their children; reduces parental pressure on the child; affects the brevity and cost-effectiveness of family law proceedings; affects the rise in the number of consensual divorces; it ensures, to a greater extent, the voluntary enforcement of court decisions and the continuation of personal contacts between parents and children following the breakdown of the family.
MEDIATION in theory and practice: a large handbook on mediation, by Nina Betetto… (et al.), Ed. Gordana Ristin, Zoran Hajtnik, Ljubljana, Slovenian Association of Mediators, 2011 (p. 234-239)
IRŠIČ, Marko, Family mediation and its applicability in everyday life, Rakmo Institute, Ljubljana, Rakmo Institute, 2009 (p. 24-29)