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.
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.
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