DIVORCE MEDIATION IN EUROPE: An Introductory Outline[1] Miquel Martín Casals (University of Girona, Spain)[2]   Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use.   Contents 1. Introduction 2. The current state of family mediation in Europe according to national law and practice 2.1 Family mediation in Eastern Europe 2.2 Family mediation in Southern Europe 2.3 Family mediation in Northern Europe 2.4 Family mediation in Western Europe 2.4.1 Germany 2.4.2 France 2.4.2.1 Origins and development 2.4.2.2 French legislation 2.4.3 England and Wales 2.4.4 Other countries, in particular Belgium and Austria 2.4.4.1 Austria 2.4.4.2 Belgium Notes Introduction It is well known that ‘divorce mediation’ is a dispute resolution process in which, as an alternative to judicial or administrative decision-making, the spouses are assisted by an impartial and neutral professional (the mediator or mediators) in order to analyse the situation arising from the spouses’ wish to be divorced and to try to reach their own agreement with regard to some or all the matters under dispute. The phrase ‘divorce mediation’ - in contrast to ‘family mediation’ - emphasises the application of this process to the crisis in which a couple finds itself when their marriage breaks down, and explicitly leaves aside mediation aimed at the resolution of other types of conflict that may arise between family members, such as maintenance among relatives, establishing links with biological parents, contact rights of grandparents with regard to their grandchildren, step-parent adoption or any other conflict between relatives. However, this term is not inclusive enough since problems which are functionally similar to those arising from divorce also take place when married or unmarried couples decide to separate de facto or legally. Moreover, talking about ‘divorce mediation’ is focusing on adults who are breaking up their marriage, whereas if we look at families as children-centred systems, regardless of whether parents marry, cohabit, divorce or separate, children always have to be fed, clothed, housed and looked after daily. Therefore, when viewed from the children’s perspective, the social context of mediation will extend more widely than the breakdown of marriage only, to cover all kinds of separation regardless of whether a couple is married or cohabiting. For this reason, in this article I will not refer to ‘divorce mediation’ but to ‘family mediation’, not in its widest sense, but in the stricter sense of mediation encompassing all possible disputes arising from the breakdown of a couple’s relationship. Mediation may be seen as a type of ‘Alternative Dispute Resolution’, alongside other processes such as negotiation and arbitration, which share with mediation the common characteristic of resolving disputes between spouses or among family members without a judge’s order after an adversarial trial. However, by contrast with negotiation, where the parties or their representatives seek a resolution to their dispute through direct discussions, in mediation the dispute resolution process is facilitated by a neutral and impartial third party. In contrast to arbitration, where the parties, by mutual agreement, delegate the power to decide to a third party, in mediation this third party does not have the power to decide the dispute and aims at helping the parties to reach their own decision. Mediators, however, do not universally agree on the theory and practice of their profession. Some stress that the mediator must help the parties in conflict to articulate their needs and their fears better or, in short, that he or she must help the parties to communicate better. Others emphasise that the mediator must help the parties in dispute to understand the strengths and weakness of their positions and interests better and, if requested, predict for them the possible scenarios if the parties do not reach an agreement. Finally, others insist that one of the aims of mediation is to change the quality of the parties’ interaction, i.e. to transform hostility and bitterness between the parties into constructive interaction. If the parties are parents, the breakdown of their personal relationship as a couple will not lead to an end of their relationship as parents. The best interests of their children will require that the best possible relationship between them as parents is preserved for the future. In all likelihood, these three aspects will be present in the professional activity of the mediator and will be promoted in his or her specific training. Mediation will be a structured process carried out by specifically trained professionals, which will be performed according to recognised principles and techniques. These principles, which have been the traditional content of the Codes of Practice for mediators, have been set out in Recommendation R (98)1 of the Council of Europe issued in 1998 or in the more recent European Code of Conduct for Mediators and the Proposal of Directive for mediation. In this article, I will concentrate on the broader outlines of the situation of family mediation in several European countries according to domestic law and practice. 2. The current state of family mediation in Europe according to national law and practice The Commission on European Family Law (CEFL), a group of family and comparative law experts from most European countries established in 2001,[3] published two - in my opinion - very relevant volumes in 2003. These volumes contain the answers given by experts from 22 European countries to a questionnaire of more than 100 questions concerning the grounds for divorce and the problems of maintenance.[4] One of the questions of the questionnaire dealt with in Volume 1 was: Are attempts at conciliation, information meetings or mediation attempts required?[5] A new book under the auspices of this Commission, which will most probably be published in 2005,[6] deals with parental responsibility, and one of the questions included in the questionnaire (Question 57) is: What alternative disputes solving mechanisms, if any, e.g. mediation or counselling, are offered in your legal system? Are such mechanisms also available at the stage of enforcement of a decision/agreement concerning parental responsibilities, the child’s residence or contact? Although the questions were not aimed at obtaining reports on family mediation and other alternative dispute resolution mechanisms in the countries and, therefore, the answers do not go into very great detail, these answers offer an excellent starting point from which, with the aid of other sources, an outline of the current situation of family mediation in Europe can be drawn. In very broad and general terms, family mediation follows similar steps in all European countries: 1) First, it is discovered with enthusiasm by professionals who deal with family conflicts; 2) next these professionals organise themselves into associations for the promotion and the practice of mediation; 3) in a further step, the national legislature refers occasionally to mediation as a useful mechanism for the resolution of conflicts arising out of separation or divorce, a process that is considered preferable to adjudication in adversarial proceedings and 4) finally, family mediation obtains more detailed legal regulation as such or within the broader framework of rules dealing with mediation in civil and commercial matters. In one of her forthcoming publications, Lisa Parkinson writes: A picture of mediation in Europe would resemble a constantly changing patchwork quilt or mosaic. The pieces making up this patchwork have recurring patterns and colours, but they are not uniform and they are not woven to a single design. There are many missing pieces and the patchwork has gaps in it. A variegated patchwork that recognises cultural differences is preferable to uniformity.[7] Let us have a look at this patchwork. 2.1 Family mediation in Eastern Europe In the countries that have been under soviet influence for decades, family mediation is still in its infancy. This is also the case in countries such as Hungary and Bulgaria, where their Parliaments have recently passed some legislation on mediation. In the Czech Republic, there are no alternative mechanisms for resolving family disputes. Certified experts who are authorised by the courts to provide an expert opinion on the regulation of contact between the non-resident parent and the child, or expert witnesses reporting on the suitability of each parent for the upbringing of their children may occasionally try to help the parents come to an agreement and in these cases they would fulfil a similar functional role. However, family mediation is not established as a profession and is not regulated by Czech law.[8] In Lithuania, although the Civil Code (Article 3.54 Lithuanian CC) and the Code of Civil Procedure (Article 231, 376 Lithuanian CCP) impose a general duty on the court to take all necessary measures in family disputes to reconcile the parties, the law does not provide for mediation either.[9] In Poland, current law and practice refer to reconciliation and to family counselling (Article 70 of the Polish statute of 2003 on social assistance), but family mediation is not provided.[10] The situation is similar in Russia.[11] In Hungary, although Parliament passed an Act on mediation in 2002 and family mediation is practised, it is not widely available. It aims at resolving disputes on parental responsibility, residence of the child and contact, and there is special ‘child-welfare mediation’ that may help parents arrange the matter of contact if they cannot agree on the manner or the time of the contact.[12] In Bulgaria, Parliament passed the first Act on Mediation on the 2 December 2004 in spite of the hostility of some of its conservative members who considered mediation ‘dangerous’, alleging that it might privatise the judiciary function of the state.[13] The Act does not deal with family mediation only since Article 3(1), as regards the subject matter of mediation, provides that ‘[t]he subject of mediation may be civil, commercial and administrative disputes related to consumer rights, and other disputes between natural and/or legal persons’. Moreover, Article 3(2) adds that ‘[m]ediation shall furthermore be conducted in the cases provided for in the Criminal Procedure Code’.[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.[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 Stani? clearly shows this overlap in the Serbian Draft Law on Family which introduces mediation.[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.[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,[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.[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.[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’.[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.[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.[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, Galicia[24] and Valencia[25], also passed their family mediation Acts in 2001; the Canary Islands followed suit in 2003[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.[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 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.’[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.[29] In Sweden,[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.[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 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.[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’.[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).[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. 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 Governor’s 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 Governor’s 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.[35] 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).[36] 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 . . .’[37] 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 process.[38] 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 Europe. 2.4.1 Germany 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 and divorce.[39] At the beginning of the 1990s, all mediators organised themselves around two mediation associations, the Bundesverband für Mediation (BM) and the Bundesarbeitsgemeinschaft für Familienmediation (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 person’s 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.[40] 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.[41] 2.4.2 France 2.4.2.1 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 their children.[42] In April 1988, a group of professionals involved in family law from a number of European countries created the Association Pour la Médiation Familiale (APMF).[43] 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.[44] 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), was established.[45] 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 December 2003,[46] of a state diploma in family mediation, which has been regulated in detail by a circular of 30 July 2004.[47] 2.4.2.2 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 procedures.[48] In 1996, a regulation elaborating in more detail the provisions of the Act was established in a Décret.[49] This provided a legal framework for civil conciliation and mediation, including family mediation. 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’.[50] The appointment, to last up to three months, is renewable for another three months at the request of the mediator.[51] 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 unproductive.[52] If the parties so request, the judge may ratify the agreement they put before him and thus give it executive force.[53] 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.[54] 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.[55] 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.[56] 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’.[57] 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).[58] The report makes thirty-six recommendations, the most important of which are: - that legislation relating specifically to family mediation should be passed; - 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 provided; - 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 report’s 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 fraternity. - 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[59] and 373-2-10[60] CC or Article 1071 NCPC).[61] 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.[62] 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 Sassier’s 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.[63] 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.[64] 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 - 1982)[65] and the Family Mediators Association (FMA) (1988)[66] were established. In 1993, the National Family Conciliation Council was renamed ‘National Family Mediation’ (NFM)[67] and this association, together with the Family Mediators’ Association (FMA) and Family Mediation Scotland (FMS)[68] in January 1996[69] 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.[70] For many years, there has been little official support and funding for family mediation, but the 1990 Law Commission Report Family Law: The Ground for Divorce[71] 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.[72] 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.[73] 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.[74] 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,[75] 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 team’s final evaluation report was published by the Lord Chancellor’s Department in January 2001.[76] 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 1999.[77] 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 positive: - Eighty-two per cent of participants considered that the mediator had been impartial and seventy per cent had found mediation very helpful or fairly helpful. - 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. The researchers 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: Children’s Needs and Parents’ Responsibilities, launched in July 2004,[78] 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 child-focused mediation.[79] Finally, in the introduction to the Children (Contact) and Adoption Bill published on 2 February 2005,[80] 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.[81] 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.[82] 2.4.4 Other countries, in particular Belgium and Austria Mediation has had a similar development in other countries in Western and Central Europe,[83] 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 family mediation. Two of the countries that have reached this final stage are Austria (2004) and Belgium (2005). 2.4.4.1 Austria 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 F?rderung von Mediation (Directives for the promotion of mediation), drafted by the Ministry of Social Security, Generations and Consumer Protection,[84] 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 ministry.[85] In Austria, the first legal reference to family mediation appeared in Section 99 Ehegesetz (Matrimonial Act) as amended in 1999 and dealt with confidentiality.[86] This reference, however, has been repealed by the Federal Act on Mediation in Civil Matters, which came into force on 1 March 2004[87] 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.[88] 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.[89] 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 400,000.[90] 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 training institutions.[91] 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.[92] 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 only vis-à-vis 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.[93] 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 Act.[94] In the case of family mediation, one hour of mediation is to cost EUR 182 per mediator team (2004 fees).[95] 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[96]. 2.4.4.2 Belgium 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.[97] In February 2005, the Belgian Parliament passed an Act which modifies the Judicial Code with regard to mediation.[98] 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.[99] 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 practice. 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 proceedings. 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.[100] 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).[101]  Notes