Exploring the Fundamental Values and Process of Mediation in Family Law
Delve into the essential principles and process of mediation as applied in Family Law, emphasizing voluntariness, confidentiality, self-determination, neutrality, and facilitative mediation. Learn about the significance of the Mediation Act 2017 and its impact on resolving disputes in various family matters such as custody, guardianship, and maintenance, with a focus on achieving mutually acceptable agreements through a facilitative and impartial approach guided by mediators.
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Principles of Mediation Teresa Blake SC. Family Lawyers Association December 16th2021.
What is Mediation The fundamental values in Mediation Overview The mediation process. Selected Provisions of the Act. Mediation Act 2017 significance - all civil law. Family Mediation. Conclusion
Mediation widely used in Family Law LAB Family Mediation Service; Dispute resolution family matters Community Mediation Services, Private practitioners. Custody, access, guardianship, maintenance, Judicial separation, Succession Part 5 of the Mediation Act Sec 23 : Mediation Information Service to be established.
Greater traction for use of mediation in dispute resolution in 1970 s. Harvard Negotiation Project 1990 Model of Principled Negotiation- Getting to Yes by Fisher and Ury Big four models are: Facilitative; Evaluative; Transformative and Narrative. Mediation is defined in the Mediation Act 2017 a confidential, facilitative and voluntary process in which the parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute What is Mediation Mediation Act 2017 as
Voluntariness Voluntariness essential to the proper functioning of the process and is a recognised factor in high satisfaction rates with mediation. Fundamental Values Confidentiality Confidentiality - - leads to parties freedom to embrace the process fully to explore and hopefully find their acceptable solution committed to settlement. information from private meeting; building trust equally with both sides; In entry to the process, Throughout the process. Self determination Self determination the parties have control of the parameters of the dispute, how it is presented progressed and ultimately if settlement is reached. Neutrality Neutrality is the state of mind of the mediator Control on information when/ if/how it is presented. Flexibility. Requirements of Act and codes- declare conflicts of interest; acting fairly; preserve confidentiality
Facilitative mediation is the classic model of mediation- problem solving . The mediator helps the parties to find their own solution by taking them through a process with distinct phases -listening, clarification, questioning, reframing option generating settlement The mediator is in charge of the process but the parties are in charge of the dispute and reaching a solution. Role of the mediator is not as adviser, evaluator, decision maker a facilitative impartial neutral . facilitative impartial neutral . The process
Background. Sec 2 : definitions - dispute- includes a complaint, Proceedings means civil proceedings that may be instituted before a court family law proceedings proceedings before a court of competent jurisdiction. definitions of mediation; mediator; mediation agreement and mediation settlement. Mediation Act 2017 Sec 3 Scope what the Act does not apply to.
Mediation Act 2017. Part 2 ( s6-13) Mediation in general. Agreement to mediate, role of mediator codes of practice, Confidentiality s10, Enforcement of settlements s 11. Role of council sec 12 Part 3(s 14-15) Obligations on practising solicitors and barristers as regards mediation Part 4 s(16-22) Role of the court in mediation Invitation to mediate s 16 Mediators report to the court s 17 Facilitating mediation to occur 18,19 Fees and costs 20-21. Sec 232 Amd -Mediation conference in personal injury actions Part 5 s(23) mediation information sessions in family law and succession proceedings. Part 6 (Amendments to family law acts) Schedule to Act minimum requirements on the Role of Mediation Council (s 12)
Mediation in general. Sec 6.(1-10) The fact proceedings have issued shall not prevent parties engaging in mediation Part 2 Section 6-13. Parties may withdraw at anytime mediator can withdraw for stated reasons in writing. Obtain legal and other advice at any time during the mediation Seek to conclude dispute in an expeditious manner The parties determine the outcome of the mediation. The fees and costs shall not be contingent on its outcome.
Sec 7. Agreement to Mediate, signed by parties and Mediator before mediation commences. Ground rules, practicalities, issues. Legal structure around the process Sec 8. Role of mediator codes of practice, Mediators Institute of Ireland - Code of Ethics (May 2021)
Section 10 of the Act statutory recognition starting point being . All communications (including oral statements) and all records and notes relating to mediation shall be confidential and shall not be disclosed in any court proceedings or otherwise 10(2) provides for certain exceptions. Strengthens the level of trust in the process, opening up to seek resolution, information won t be used against a party, frees the parties to be creative in seeking solutions, Requirement for confidentiality Common in all codes of practice for mediators. MII Code -everyone s obligation. Confidentiality
Mediation Settlements Sec 11 Enforcement The parties shall determine (a) if and when a mediation settlement has been reached between them, and (b) Whether the mediation settlement is to be enforceable between, Role of the Court Sec 11(3) a court may, on the application of one or more parties to a settlement, enforce its terms except where the court is satisfied that A parties rights and entitlements are not adequately protected Settlement is not based on full disclosure of assets Is Contrary to public policy A party s will overborne by the other.
A practising solicitor shall prior to issuing proceedings (a) Advise the client to consider mediation (b) Provide the client with information on mediations services -names and addresses of mediation services (c) Provide the client with information about (i) the advantages of mediation over litigation (ii) the benefits of mediation (iii) advise client mediation may not be appropriate in situation of risk to another; Obligations on Lawyers Sec 14-15. (d) Complete Statutory Declaration on compliance with obligations under sec 14(1) (e) Sec 25 and 26 Amendments to sec 5 FLJS Act 89 and sec 6 Divorce Act 1996)
Court invitation to the parties to consider mediation of its own motion or on application by one of the parties. Adjourn proceedings to allow mediation take place; extend time for compliance with rules of court; give directions and make such order as necessary to Facilitate effective use of mediation. Part 4 Role of Court in Mediation sec (16-22) Mediators Report to court Costs implications.
Mediation is a pillar of the justice system- Mediation Act 2017. Very suitable as a process for resolution of family law disputes. Conclusion Lawyers need to be aware of their obligations under the Mediation Act when advising clients.
