European Principles on Family Mediation

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Recommendation

Principles on Family Mediation

On January 21, 1998 the Committee of Ministers

of the Council of Europe adopted a

recommendation Number R(98)1 entitled Family

Mediation in Europe. The text of the

recommendation and principles of family

mediation follows.

INTRODUCTORY NOTE

The Third European Conference on family

law on the subject “Family Law in the future”

(Cadiz, 20-22 April 1995) recommended that the

Council of Europe give consideration to the

question of family mediation or other processes

to resolve family disputes in the light of the

conclusions of this Conference. It also

recommended that the Council of Europe

examine the possible preparation of an

international instrument containing principles on

mediation or other processes to resolve family

disputes.

Following this proposal, the Committee of

experts on family law (CJ-FA), under the

authority of the European Committee on legal co-operation (CDCJ), was instructed to consider

principles relating to mediation or other

processes to resolve family disputes. In order to

carry out its terms of reference, the CJ-FA set up

the Working Par-tv on mediation and other

processes to resolve family disputes (CJ-FA-GT2). The latter prepared a draft

Recommendation and draft explanatory

memorandum on family mediation. During its

30th meeting, the CJ-FA completed its work on

these texts which were, subsequently revised by

the representatives of the 40 member States of

the Council of Europe in the CDCJ. On 21

January 1998 the Committee of Ministers

adopted Recommendation No. (98) 1 on family

mediation and authorized the publication of its

explanatory memorandum.

RECOMMENDATION No. R (98)1

OF THE COMMITTEE OF MINISTERS TO

MEMBER STATES ON FAMILY MEDIATION

(Adopted by the Committee of

Ministers on 21 January 1998

at the 616TH meeting of the

Ministers’ Deputies)

1. The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of

Europe,

2. Recognizing the growing number of family

disputes, particularly those resulting from

separation or divorce, and noting the detrimental

consequences of conflict for families and the high

social and economic cost to States;

3. Considering the need to ensure the protection

of the best interests and welfare of the child as

enshrined in international instruments, especially

taking into account problems concerning custody

and access arising as a result of a separation or

divorce;

4. Having regard to the development of ways of

resolving disputes in a consensual manner and

the recognition of the necessity to reduce conflict

in the interest of all the members of the family;

5. Acknowledging the special characteristics of

family disputes, namely:

the fact that family disputes involve persons

who, by definition, will have

interdependent and continued

relationships;

the fact that family disputes arise in a

context of distressing emotions and

increase them;

the fact that separation and divorce impact

on all the members of the family,

especially children;

6. Referring to the European Convention on the

Exercise of Children’s Rights and in particular to

Article 13 of this Convention which deals with

the provision of mediation or other processes to

resolve disputes affecting children;

7. Taking into account the results of research into

the use of mediation and experiences in this area

in several countries, which show that the use of

family mediation has the potential to:

improve communication between members

of the family;

reduce conflict between parties in dispute;

produce amicable settlements;

provide continuity of personal contacts

between parents and children;

lower the social and economic costs of

separation and divorce for the parties

themselves and States;

reduce the length of time otherwise required

to settle conflict;

8. Emphasizing the increasing intemationalisation

of family relationships and the very particular

problems associated with this phenomenon;

9. Realising that a number of States are

considering the introduction of family mediation;

10. Convinced of the need to make greater use of

family mediation, a process in which a third

party, the mediator, impartial and neutral, assists

the parties themselves to negotiate over the

issues in dispute and reach their own joint

agreements,

11. Recommends the governments of member

States:

i. to introduce or promote family

mediation or, where necessary,

strengthen existing family mediation;

ii. to take or reinforce all measures they

consider necessary with a view to the

implementation of the following

principles for the promotion and use of

family mediation as an appropriate

means of resolving family disputes.

PRINCIPLES ON FAMILY MEDIATION

I. Scope of mediation

a. Family mediation may be applied to all

disputes between members of the same

family, whether related by blood or marriage, and

those who are living or have lived in family

relationships as defined by national law.

b. However States are free to determine the

specific issues or cases covered by family

mediation.

II. Organisation of mediation

a. Mediation should not in principle be

compulsory.

b. States are fire to organise and deliver

mediation as they see fit, whether through the

public or private sector.

c. .Irrespective of how mediation is organised

and delivered, States should see to it that there

are appropriate mechanisms to ensure the

existence of procedures for the selection, training and

qualification of mediators, standards to be achieved and maintained by

mediators.

III. Process of mediation

States should ensure that there are appropriate

mechanisms to enable the process of mediation

to be conducted according to the following

principles:

i. the mediator is impartial between the

parties;

ii. the mediator is neutral as to the outcome

of the mediation process;

iii. the mediator respects the point of view

of the parties and preserves the

equality of their bargaining positions;

iv. the mediator has no power to impose a

solution on the parties;

v. the conditions in which family mediation

takes place should guarantee privacy;

vi. discussions in mediation are confidential

and may not be used subsequently,

except with the agreement of the

parties or in those cases allowed by

national law;

vii. the mediator should, in appropriate

cases, inform the parties of the

possibility for them to use marriage

counselling or other forms of

counselling as a means of

resolving their marital or family

problems;

viii. the mediator should have a special

concern for the welfare and best

interests of the children, should

encourage parents to focus on the

needs of children and should remind

parents of their prime responsibility

relating to the welfare of their children

and the need for them to inform and

consult their children;

ix. the mediator should pay particular regard

to whether violence has occurred in the

past or may occur in the future

between the parties and the effect this

may have on the parties’ bargaining

positions, and should consider whether

in these circumstances the mediation

process is appropriate;

x. the mediator may give legal information

but should not give legal advice. He or

she should, in appropriate cases,

inform the parties of the possibility for

them to consult a lawyer or any other

relevant professional person.

IV. The status of mediated

agreements

States should facilitate the approval of

mediated agreements by a judicial authority or

other competent authority where parties request

it and provide mechanisms for enforcement of

such approved agreements, according to national

law.

V. Relationship between mediation

and proceedings before the judicial

or other competent authority

a. States should recognise the autonomy of

mediation and the possibility that mediation may

take place before, during or after legal

proceedings;

b. States should set up mechanisms which

would:

i. enable legal proceedings to be interrupted

for mediation to take place;

ii. ensure that in such a case the judicial or

other competent authority retains the

power to make urgent decisions in

order to protect the parties or their

children, or their property;

iii. inform the judicial or other competent

authority whether or not the parties are

continuing with mediation and whether

the parties have reached an agreement.

VI. Promotion of and access to

mediation

a. States should promote the development of

family mediation, in particular through

information programmes given to the public to

enable better understanding about this way of

resolving disputes in a consensual manner.

b, States are free to establish methods in

individual cases to provide relevant information

on mediation as an alternative process to resolve

family disputes (for example by making it

compulsory for parties to meet with a mediator)

and by this enable the parties to consider

whether it is possible and appropriate to mediate

the matters in dispute.

c.. States should also endeavour to take the

necessary measures to allow access to family

mediation, including international mediation, in

order to contribute to the development of this

way of resolving family disputes in a consensual

manner.

VII. . Other means of resolving

disputes

States may examine the desirability of

applying, in an appropriate manner, the principles for mediation contained in this

Recommendation, to other means of resolving

disputes.

VIII. International matters

a. States should consider setting up

mechanisms for the use of mediation in cases

with an international element when appropriate,

especially in all matters relating to children, and

particularly those concerning custody and access

when the parents are living or expect to live in

different States.

b. International mediation should be considered

as an appropriate process in order to enable

parents to organise or reorganise custody and

access, or to resolve disputes arising following

decisions having been made in relation to those

matters. However, in the event of an improper

removal or retention of the child, international

mediation should not be used if it would delay

the prompt return of the child.

c. All the principles outlined above are applicable

to international mediation.

d. States should, as far as possible, promote co-operation between existing services dealing with

family mediation with a view to facilitating the

use of international mediation.

e. Taking into account the particular nature of

international mediation, international mediators

should be required to undergo specific training.