For debate in the Standing Committee — see Rule 15 of the Rules of Procedure

Doc. 9983

20 October 2003

Family mediation and equality of the sexes

Report

Committee on Equal Opportunities for Women and Men

Rapporteuse: Mrs Lydie Err, Luxembourg, Socialist Group

Summary

Family mediation is a life-building and management process between family members in the presence of an independent and impartial third party, called the mediator. It is most often used in the context of a separation but also to settle questions relating to education, child custody and access, the determination of an appropriate contribution to the upbringing and maintenance of children, the division of an estate, inheritance, etc. The mediator’s task is to support the mediated partners in their progress towards a previously agreed goal. The aim of mediation is to seek a conclusion that is acceptable for the mediated partners, without discussion of blame or responsibility. The agreement reached is intended to lead to appeasement and long-term improvement of the mediated partners’ relations.

In general, family mediation is valued as an alternative method of resolving family disputes, as it has the advantage of promoting methods of friendly settlement and reducing the economic and social costs of separation and divorce for families, the state and for society. For family mediation to be successful, however, the main principles of mediation must be respected, in particular the independence and impartiality of the mediator and the confidentiality of the process, for the conduct of which training is required.

Equality of the sexes must be guaranteed in family mediation as in family justice systems in general. Individual rights must not be sacrificed to cost-effectiveness or the trend towards alternative conflict resolution methods. Neither sex should be disadvantaged in family mediation because of power imbalances: be it because one party has suffered abuse, is unable to fully present its points of view (e.g. because of drug/alcohol dependency or mental health issues), or is emotionally or financially at a disadvantage (e.g. because one party has looked after the children and not worked outside the home). When patently unfair agreements are reached during family mediation resulting from these power imbalances, they must not be endorsed by the mediator or approved by a judge.

The Parliamentary Assembly should thus call on Council of Europe member and observer states to implement the principles for the promotion and use of family mediation as laid out in Recommendation No. R(98)1 of the Committee of Ministers, and to introduce or strengthen specific measures with the aim of ensuring successful family mediation and the equality of the sexes. The Assembly should also recommend that the Committee of Ministers consider revising its guidelines set out in the above-mentioned Recommendation so as to reflect the preoccupations and solutions put forward by the Assembly and that it enlist the help of experts and experienced practitioners for this purpose.

I.       Draft recommendation

1.        Family mediation is a life-building and management process between family members in the presence of an independent and impartial third party, called the mediator. It is most often used in the context of a separation but also to settle questions relating to education, child custody and access, the determination of an appropriate contribution to the upbringing and maintenance of children, the division of an estate, inheritance, etc. The mediator’s task is to support the mediated partners in their progress towards a previously agreed goal. The aim of mediation is to seek a conclusion that is acceptable for the mediated partners, without discussion of blame or responsibility. The agreement reached is intended to lead to appeasement and long-term improvement of the mediated partners’ relations.

2.        The use of mediation is becoming more widespread across Council of Europe member and observer states but especially in Western Europe, Canada and the United States of America. The Assembly welcomes Recommendation No. R(98)1 of the Committee of Ministers on family mediation. This Recommendation promotes the use of family mediation as an appropriate means of resolving family disputes and sets out certain principles to be respected concerning the scope, organisation and process of mediation, as well as the status of mediated agreements, the relationship between mediation and proceedings before the judicial or other competent authority and the promotion of and access to mediation.

3.        In general, family mediation is valued as an alternative method of resolving family disputes as it has the advantage of promoting methods of friendly settlement and reducing the economic and social costs of separation and divorce for families, the state and for society. For family mediation to be successful, however, the main principles of mediation must be respected, in particular the independence and impartiality of the mediator and the confidentiality of the process, for the conduct of which training is required.

4.        Family mediation is not a universal remedy that will solve all family problems while avoiding congestion of the courts with jurisdiction over family issues (i.e. divorce, child custody and access, maintenance, division of estates, inheritance, etc). Researchers and practitioners in the mediation field analyse the practice of mediation with reference to its underlying principles, the emphasis being on theoretical and practical consistency. Their concern is to ensure that court-ordered mediation does not become a less expensive, fast-track option reserved for those who cannot afford traditional judicial procedures. Court-ordered mediation must not become “poor man’s justice”. They also mention the difficulties faced by mediators in identifying or redressing power imbalances between the parties, especially when domestic violence or other types of spousal abuse are involved.

5.        Equality of the sexes must be guaranteed in family mediation as in family justice systems in general. Individual rights must not be sacrificed to cost-effectiveness or the trend towards alternative conflict resolution methods. Neither sex should be disadvantaged in family mediation because of power imbalances: be it because one party has suffered abuse, is unable to fully present its points of view (e.g. because of drug/alcohol dependency or mental health issues), or is emotionally or financially at a disadvantage (e.g. because one party has looked after the children and not worked outside the home). When patently unfair agreements are reached during family mediation resulting from these power imbalances, they must not be endorsed by the mediator or approved by a judge.

6.       It is essential to ensure that mediation does not lead to an agreement satisfying the wishes of one party where that party dominates the other in any way whatsoever.

7.       The primary aim of mediation is not to reduce congestion of the courts but to repair, with the help of a professional trained in mediation, a breakdown in communication between the parties. Judicial proceedings cannot be appropriately replaced by the mediation process unless the constituent elements of mediation are present, namely:

i.       freedom of choice of the parties being the key to all mediation, mandatory referral to mediation must be prohibited;

ii.       the independence and impartiality of the mediator must be guaranteed from both the institutional and the professional standpoint;

iii.       the confidentiality of the process must be guaranteed, even in court-ordered mediation, as regards both the judge and the mediated parties;

iv.       the obligation to confirm speedily mediation agreements would be a guarantee of their being lawful and respecting the individual rights of each person covered by them;

v.       the balance of power between the mediated parties must be guaranteed. This is the responsibility of the mediator, who must be specially educated and trained for this purpose in order to be able to establish that this essential requirement is met;

vi.       a mediator’s competence depends on his or her qualifications, and for this reason particular attention must be paid to training in, and official authorisation and supervision of, the practice of mediation.

8.        The Parliamentary Assembly thus calls on Council of Europe member and observer states to implement the principles for the promotion and use of family mediation as laid out in Recommendation No. R(98)1 of the Committee of Ministers and to introduce or strengthen the following measures with a view to ensuring:

i. freedom of choice of the mediated parties, which means ruling out mandatory referral to mediation;

ii. the existence of equality of power between the mediated parties both in theory and in practice;

iii. the development of standardised screening tools based on a thorough knowledge of power relationships or violence in couples or families in order to correctly identify cases lending themselves to family mediation;

iv. the inclusion of family mediation in the legal aid system;

v. review of the lawfulness and fairness of mediation agreements through their approval by the competent courts;

vi. the confirmation of mediation agreements through the competent courts;

vii. the existence of a formal complaints system within every mediation service.

9.        In view of the experience accumulated by member states during the last five years, the Assembly recommends that the Committee of Ministers consider revising its guidelines set out in Recommendation No. R(98)1 so as to reflect the preoccupations and solutions put forward above and that it enlist the help of experts and experienced practitioners for this purpose.

II.       Explanatory memorandum by Mrs Lydie Err, Rapporteuse

A.       Introduction

1. On 31 January 2002, I initiated a motion on risks and chances of women in family mediation, which was referred to our Committee for report. I prepared an introductory memorandum on the issue on 3 February 2003, which was followed by a hearing on family mediation held in Budapest on 25 February 2003, in which several eminent mediation experts took part: Mrs Guillaume-Hofnung (France), Mrs Haga (Hungary), Mrs Weinmann-Lutz (Switzerland) and Mrs Chin-A-Fat (Netherlands). I hope that this draft report, which includes a preliminary draft recommendation to the Committee of Ministers, will be positively received by the Committee on 5 September 2003, and can be adopted at one of the meetings of the Committee during the September 2003 part-session. This would enable the report to be debated by the Standing Committee in Maastricht in November 2003.

2. To be able to evaluate the risks and chances for women in family mediation, it is necessary to know what family mediation is and what it can – and cannot – do. In short, family mediation is an extra-judicial discussion between members of the same family in the presence of an independent and impartial third party, called mediator. It is most often applied in the context of divorce proceedings or disputes concerning the custody of and access to children. The mediator’s task is limited to supporting the mediated parties in their progress towards a previously-agreed goal. The aim of mediation is to seek a conclusion that is acceptable for the mediated parties, without discussion in terms of blame or responsibility. The process thus focuses on the future rather than the past. The agreement reached is intended to lead to appeasement and long-term improvement of the mediated parties’ relations.

3. On account of a persistent confusion between various methods of resolving conflict, the differences between mediation and similar but non-identical processes, such as conciliation, compromise, arbitration, negotiation and the justice system, are set out in the appendix (see also documents AS/Ega/Inf(2003) 2 to 8, on the definition, aims and characteristics of mediation).

4. Before examining the issues raised by mediation, I would like to draw attention to the activities already carried out by the Council of Europe in this field.

B.       Work carried out by the Council of Europe in the area of family mediation

5. Several recommendations have already been produced by the Council of Europe on mediation, which seems to prove that mediation, an alterative method of dispute resolution (AMDP), is capable of strengthening democratic approaches in our societies. In effect, mediation promotes the parties’ autonomy with regard to their own fate, which can only further a vibrant democracy.

6. Recommendation No. R(98)1 of the Committee of Ministers on family mediation focused primarily on conflict between family members in the widest sense, extending beyond the nuclear family unit. It promotes the use of family mediation as an appropriate means of resolving family disputes and sets out certain principles to be respected, concerning the scope, organisation and process of mediation, as well as the status of mediated agreements, the relationship between mediation and proceedings before the judicial or other competent authority and the promotion of and access to mediation.

7. The recommendation largely focuses on child protection, by seeking to further children’s best interests. However, this concept, the cornerstone of the UN’s Convention on the Rights of the Child, is not defined in the recommendation: this is regrettable, although a child’s wishes should obviously not be systematically followed on every occasion. The recommendation also points out the need to train mediators, and recommends that member States introduce adapted procedures for selection, training and qualification.

8. In addition, it emphasizes the need to respect the principles of neutrality, impartiality and confidentiality. In particular, the recommendation mentions violence, drawing attention to the need to check whether an abusive relationship has existed, before even reaching agreement on the principle of mediation, which might be inappropriate where equality between the mediated parties is not a given. The recommendation also distinguishes between the legal information provided by mediators and legal advice, which mediators cannot provide without compromising their neutrality and impartiality.

9. Given that the legal force of mediation agreements is, in theory, the same as that of a contract, the States are invited to consider the possibility of endorsing them through a court ruling. The recommendation invites member States to promote and/or institute family mediation, either through legal aid or by financing mediation structures.

10. Finally, it recommends the institutionalisation of family mediation whilst leaving the member States free to choose how this is implemented. The recommendation does not mention the awareness-raising necessary for all professionals in the legal field, nor the training criteria for mediators as such; no reference is made to the European Charter for the Training of Family Mediators.

C.       The main features of mediation

11. Mediation is a multi-faceted process, the simplest description of which requires a distinction between therapeutic and preventative mediation: the first occurs within a conflict, the second is external. In spite of the wide variety of fields in which mediation is used, there is an overall logic which ensures that the essential and cumulative constituent elements are always the same, namely:

- mediation’s three-part nature, which is dependent on the mediator’s independence;

- total freedom for the protagonists and the mediator;

- impartiality and the lack of institutional authority of the mediator;

- confidentiality of the process;

- skill in the mediation process.

The Mediator’s independence and the three-fold nature of the process

12. If the requirement for a third party is to be respected, the third party must be independent in all senses of the term, i.e. independent of the protagonists as well as of any hierarchy, such as an appointing authority. Mediation cannot exist where the mediator represents an authority and merely intervenes, so to speak, between this authority and the protagonists.

13. The mediator’s independence is a fundamental requirement. Without this pre-condition, there will be no real three-part structure. This essential independence means an absence of instructions and a lack of any pressure, whether financial, political, moral, religious, philosophical, ethical or other. In this respect, assessing independence is an extremely sensitive issue, both in terms of mediators’ status and their general freedom to act.

The consensual nature of mediation

14. The consensual nature of mediation is twofold, since it is based on the freedom of the protagonists and of the mediator. The protagonists’ freedom presumes full information before informed consent can be given. Before receiving the protagonists’ consent, the mediator will also have ensured that there are no constraints between the parties resulting from factors such as a violent relationship between the protagonists, where one dominates or obliges the other to do as he/she says.

15. The mediator’s freedom is an aspect of the same requirement, but it is analysed differently. Although one can imagine the existence of institutional mediators, who cannot in theory refuse to carry out the task for which they have been appointed, it would be inconceivable to refuse a mediator the right to turn down mediation through a conscience clause, i.e. for reasons connected with his/her personal judgment.

The mediator’s impartiality

16. Impartiality is a key element in any mediation process, since it protects the protagonists’ freedom. It refers to an absence of partiality and equidistance with regard to the protagonists, but also and especially to the ability to distance oneself in terms of one’s own experience, culture and values.

17. Indeed, impartiality is a question of skill and even of professional competence, and this depends on training as much as on the mediator’s personal experience. All these elements should help mediators to acknowledge their own assumptions, values and judgments, so as to be alert only to the protagonists’ interests and needs. In conclusion, mediators must have a certain proficiency and know-how.

The mediator’s lack of authority

18. Lack of authority is linked to mediation’s very essence, which is intended to lead the protagonists to think in other ways, rather than through the dynamics of power-based relationships. Lack of institutional authority means that mediators may impose nothing on the persons they accompany, as these parties move towards a solution which is to be found within themselves and which must be their own. To exist without power is also a strength. This statement may seem paradoxical, but the mediator’s lack of institutional authority is his/her strength, since it means that the protagonists are free and nothing can be imposed. The mediator’s role is limited to structuring meetings and establishing the conditions in which the protagonists can communicate. He/she is responsible for the process, but not for the outcome reached by the protagonists.

Confidentiality of the process

19. Like the other aspects mentioned here, confidentiality is part of the mediation process’s very essence. The fact that none of what occurs within mediation may be used outside the process is a guarantee of its success. This is valid not only for private individuals dealing with personal issues, but also for businesses who are protecting their commercial interests.

The existence of a working process or method

20. Process is not the same as procedure. The mediation process is neither set in stone nor unchanging in the way that judicial procedure is. Rather, it is the mediator’s working tool. Contrary to widespread belief, mediating is not an innate gift, but a skill, the aim of which is to facilitate communication and respect for the other person, through attentive listening and effective consideration of the other.

21. The process brings out otherness, and helps the protagonists to understand that there is no objective reality, but several differing approaches to a given situation. The mediator’s unusual skill lies in listening empathetically, not judging, not interpreting, not comparing, reformulating what has been said in order to ensure that he/she has understood properly, and making sure all through the process that the dialogue, and its outcome, are balanced. This process guarantees that the protagonists will be treated correctly. The mediator is responsible for this process, but not for its outcome.

D.       Some particular problems of family mediation

22. Before becoming legal disputes, family conflicts are essentially matters of emotion, psychology and relationships, in which suffering is the dominant emotion. Whilst judges can rule on disputes, they cannot resolve a couple’s conflict: this implies growing inadequacy on the part of the justice system to respond to such conflicts in a satisfactory manner.

23. In addition, family mediation can be more constructive than adversarial judicial proceedings in the majority of cases. Judicial proceedings are likely to reinforce entrenched positions and rarely provide an solution that is acceptable to both parties. They may also lead to further deterioration of the parties’ relationship, and family conflicts are likely to last even longer.

24. It should not be forgotten that children are at the heart of unsettled conflicts between couples, and frequently become a preferred tool, enabling couples who have not accepted the end of their relationship to remain together in conflict. According to an INED study published in Revue Population in April 1999, 44% of children never or rarely see their father a few years after parental separation. Given all the attendant psychological and social fallout, this is an alarming figure.

25. In so far as this is possible, family mediation aims to pacify conjugal and parental disputes and to remedy the harmful consequences of fault-based compensation. Mediation is intended to make it possible to find a solution that is acceptable to each party concerned, since the agreement will be reached by both parties; consequently, they will feel all the more obliged to honour their commitments.

26. In conclusion, and in the light of the fore-going, consideration must be given to identifying appropriate methods so that family mediation can respond to and promote children’s interests, as well as those of the parents and other family members. Where the marriage has irretrievably broken down, it should be ended with the minimum of suffering for the parties and children concerned, so that good relations can be maintained between those concerned, so far as this is possible in the circumstances. This is only possible where equal parties, with full knowledge of the facts, agree to manage their joint problem through mediation, without pressure of any kind whatsoever.

27. Mediation is therefore a tool in a social and family policy of assisting parenthood, and is intended to protect the interests and well-being of the child while promoting the maintenance of inter-dependent relations between family members. Introduction of this alternative means of resolving family disputes has the advantage of promoting methods of friendly settlement and reducing the economic and social costs of separation and divorce, for families, for the State and for society.

E.        Family mediation and the equality of the sexes

28. Family mediation is, however, not a panacea for all the troubles which plague the family justice systems in our societies. Both academics and practitioners have, in particular, criticised some aspects and practices of family mediation which have the capacity of shortchanging the “weaker” party in a dispute - most often women.

29. An extensive research study on “Family Mediation in Canada: Implications for Women’s Equality”1 highlighted the inability of informal justice systems such as family mediation to protect individual rights and entitlements, making it possible to bargain them away. The study found that: “Mediated agreements, unlike lawyer-assisted negotiated agreements, are often made outside the framework of the parties’ rights and responsibilities which exist according to law. The critical point is that mediated agreements, especially if the parties enter into them without full information about their legal rights, may bear no relationship to what the parties would be entitled to if they went to court. There is currently no mechanism in place to ensure that those legal rights and entitlements are reflected in the agreements, or are even fully considered by the parties. … This means that women may cede hard-won legal rights behind closed doors”2.

30.        The inability of mediators to redress power imbalances between the parties, especially when domestic violence or other types of spousal abuse are involved, was another focus of this study, but has also been extensively discussed in mediation literature in general. The Canadian study reports that “battered women’s advocates… remain adamant that mediation is dangerous for battered women and their children”3. The reasons advanced for this evaluation is that the components of mediation that are critical to its effectiveness are wholly absent when considered in the context of abusive relationships: “First, there can be no equality of power – bargaining or otherwise – between batterers and their wives”4. Another commentator states: “It is difficult to imagine a batterer coming to a mutually agreeable outcome with his partner in mediation; it is equally difficult to imagine that he will comply with an agreement he believes is unfair to him.5

31.        In addition, future violence cannot be ruled out. Critics have also argued from a moral point of view that “the mere fact that the court allows mediation of cases where family violence is present sends a message to both the abuser and the victim that “violence is not so serious as to compromise the parties’ ability to negotiate as equals”, which “blurs the message of offender accountability”6. Proponents of mediation point out, however, that in some circumstances mediation can provide the victims of domestic violence with a sense of empowerment and a model of conflict resolution7. Even Rene Rimelspach acknowledges, however, that mediation is inappropriate “if the abuse is on-going, there have been threats with or use of weapons, and/or the victim appears unable to place her needs ahead of the batterer’s”8. Most mediators draw the line beforehand, and consider any cases of domestic violence unsuitable for family mediation.

32.        There is also a problem of detection of such cases unsuitable for mediation. The Canadian study says: “a ‘culture of battering’, involving subtle modes of communication of the threat of abuse between the two parties, makes abuse virtually undetectable”. Such cases, which are inappropriate for mediation, are thus difficult, if not impossible, to “screen out”9.

33.        Power imbalances are, however, not limited to abusive relationships. Several other factors can lead to power imbalances which are difficult, if not impossible, to redress. Examples given include drug or alcohol dependency and mental health issues10, but can also be more anodyne, such as emotional and financial disadvantages. Mrs Chin-A-Fat indicated at the hearing conducted in Budapest that a research study in the Netherlands had found that the key indicators for determining the weaker party in the mediation process were emotional and mental inequalities (who had taken the initiative to get a divorce, and to what extent had the party agreed with this decision), and the children’s place of residence (especially in access mediation)11.

34.        Numerous power-balancing techniques have been developed in an attempt to right these imbalances, which predominantly disadvantage women in family mediation. Their success depends on the skills and the training of the mediator. However, most mediators recognize that some power imbalances cannot be redressed, as otherwise the neutrality and impartiality of the mediator would be compromised: “to be even-handed with parties who are unequal in their bargaining power is to entrench the disadvantage one party already suffers, but to intervene to aid or assist the disadvantaged party most certainly undermines a mediator’s neutrality and impartiality”12. Rachael Field concludes: “Only where parties, and women in particular, have full and extensive information about the potential disadvantages they may face as a result of power imbalances, and the possible impact of the disadvantages on the equitability of any mediated outcome, can mediation really offer a just process to the power disadvantaged”13.

35.        Another one of the risks highlighted by the Canadian study is the absence of review and complaint mechanisms. This is problematic because “the type of justice promised during a mediation can only be procedural – there is no mechanism to ensure that substantive justice is achieved when the parties are responsible for their own agreements”14. When patently unfair agreements are reached during family mediation, resulting from these power imbalances, they must not be endorsed by the mediator or approved by a judge.

36.        The Canadian study proposes an audit/review of agreements and mediations on an annual basis to determine the fairness of agreements15, but I would personally prefer the option of reviewing individual agreements which do not meet basic requirements of fairness – this should be possible, for example, when a mediated agreement is approved by a judicial authority or other competent authority as proposed in section IV of Recommendation No. R (98) 1 of the Committee of Ministers on family mediation. It goes without saying that all family mediation services should include a formal complaint mechanism (preferably with an enforcement mechanism) designed specifically to allow clients to register complaints regarding difficulties they may have encountered with mediators during the process.

37.        All of the problems highlighted above are magnified when mediation is mandatory (for example, court-ordered) instead of voluntary. Coercion and compulsion seriously undermine the integrity of the mediation process.

F.        Conclusions and recommendations

38.        It can be concluded that, in general, family mediation is a useful alternative method of resolving family disputes, as it has the advantage of promoting methods of friendly settlement and reducing the economic and social costs of separation and divorce, for families, the state and for society. For family mediation to be successful, however, the main principles of mediation – as set down in Recommendation No. R(98)1 – must be respected, in particular the impartiality of the mediator and his or her neutrality as to the outcome of the mediation process.

39.        On the other hand, family mediation is neither always gender-neutral, nor necessarily appropriate for all family disputes. Three areas have been identified above as of particular concern:

40.        The Assembly should thus call on Council of Europe member and observer states to implement the principles for the promotion and use of family mediation as laid out in Recommendation no. R (98) 1 of the Committee of Ministers, and to introduce or strengthen the following measures with a view to ensuring the equality of the sexes in family mediation:

41.        In view of the experience accumulated by member States during the last five years, the Assembly should also recommend that the Committee of Ministers consider revising its guidelines set out in Recommendation No. R(98)1 so as to reflect the preoccupations and solutions put forward in this report.

APPENDIX

Differences with other methods of conflict resolution

A.       Conciliation

1.       Conciliation may or may not be judicial in nature. If it is extra-judicial, it may take place through a third party, and the main difference with judicial conciliation is then the enforceability of the agreement. Between protagonists, the conciliation agreement will in principle have the status of an agreed decision, without being enforceable in respect of a third party except where endorsed by a court ruling.

2.       Conciliation presupposes the existence of a conflict, but not necessarily of a third party; in contrast, mediation may exist without a conflict, but never without a third party. Mediation has the effect, but not the aim, of relieving congestion in the courts. Like other alternative methods of dispute resolution, it has the much broader ambition of taking into account the communicative and personal dimensions of the conflict, as well as its legal aspects.

3.       Although conciliation is judicial, it may be imposed by a public authority: accordingly, Michèle Guillaume-Hofnung (in “La Médiation”, PUF, Que sais-je 2930, published 2000), recommends that “it is necessary to use the term conciliation rather than mediation wherever the third party’s total freedom does not meet all the necessary conditions for the third party in the mediation context” (i.e. if third parties allow themselves to make recommendations on the merits, propose solutions and seek to influence the search for agreement).

B.       Negotiation

4.       Negotiation is a discussion process between opposing parties, for the purpose of reaching an agreement that is acceptable to them. It assumes the existence of a conflict, but not necessarily that of a third party, which is essential in mediation. Generally speaking, financial stakes are involved. If a third party is involved, his/her role is not the same as that of a mediator, which is to facilitate dialogue without taking control away from the participants.

C.       Arbitration

5.       Arbitration is a non-state judicial method of conflict resolution, agreed in advance by the protagonists, who promise to submit potential disputes to the decision of an arbitrator, who will have authority to decide how the conflict is to be resolved: in contrast, a mediator has no decision-making powers.

6.       Arbitration is three-part in a certain way (there are three parties to the discussions), but not in terms of the outcome, which is imposed. The arbitration ruling is not itself enforceable, but can become so if endorsed by a court judgment.

D.       Compromise

7.       Compromise is the process by which protagonists end an actual or pending dispute through reciprocal concessions. A third party is not essential in compromise settlements, the subject-matter is pecuniary and there are mutual obligations. The law makes compromise agreements enforceable and the dispute, settled definitively, may not be submitted to the courts.

8.       Mediation may be used in a dispute where there are no mutual obligations, and the intervention of an independent and impartial third party is indispensable.

E.       The justice system

9.       The justice system is the institution used in conflict situations in order to rule on disputes. It is compound in structure but not in outcome, since the judge(s) decide(s) alone. The judge is not free in terms of hearing cases and reaching decisions, while mediators have complete freedom, not only at the beginning, but also throughout the process. The mediator’s freedom to mediate must be total, since it is an essential condition of mediation.

10.       The judge’s task is to hear and determine cases. The mediator’s task is to establish or re-establish communication and expose the reasons for its breakdown, to unearth the protagonists’ interests and identify their real needs. The mediator’s role is to accompany the opposing parties so that they find their own solution and assume personal management of their problem.

11.       However, mediation does not occur without consideration of the law, since mediation agreements may not be contrary to the law or contravene public order.

12.       A modern justice system which respects litigants’ autonomy must consequently be open to alternative methods of dispute resolution in general, and to mediation in particular. Instead of absorbing an increasing number of disputes, the justice system would be fairer and more comprehensive and, in so doing, could genuinely reduce social tensions through appropriate handling of personal disputes.

13.       A modern justice system, adapted to our times, should adopt an approach that consists in offering litigants a range of different methods for conflict resolution: the protagonists would then choose the method that seems most appropriate to their needs and interests. Were this to happen, access to the law would not be limited merely to access to the justice system, and alternative methods of dispute resolution would have to be included in judicial assistance.

14.       As well as the issues covered by the justice system in its judicial form, mediation also deals with the emotional dimension, and thus the relationship between the protagonists i.e. the social link that is put to the test in our society, which tends to neglect it and focuses instead on more tangible concerns.

15.       In order to achieve this objective, a law on mediation should not only generate the expected results but also respect all of mediation’s constituent elements.

Reporting committee: Committee on Equal Opportunities for Women and Men

Reference to Committee: Doc 9333, reference N° 2689 of 28 March 2002

Draft recommendation unanimously adopted by the Committee on 29 September 2003.

Members of the Committee: Mrs Err (Chairperson), Mrs Aguiar (1st Vice-Chairperson), Mrs Mikutiene (2nd Vice-Chairperson), Mr Baburin, Mrs Bauer, Mrs Biga-Friganovic, Mrs Bilgehan, Mrs Castro, Mrs Cliveti, Mrs Curdova, Mr Dalgaard, Ms Fogler, Mr Foulkes, Mrs Frimannsdóttir, Mr Gaburro, Mr Goldberg, Ms Hadjiyeva, Mrs Hägg, Mr Juri, Mrs Katseli (alternate: Mrs Damanaki), Mrs Kestelijn-Sierens, Mrs Konglevoll, Mrs Kosa-Kovacs, Mrs Kryemadhi, Mrs Labucka, Mrs Lintonen, Ms Lucic, Mr Mahmood, Mr Mooney, Mr Neimarlija, Mrs Paoletti Tangheroni, Mrs Patarkalishvili, Ms Patereu, Mr Pavlov, Ms Pericleous-Papadopoulos, Mrs Petrova-Mitevska, Mr Pintat (alternate: Mr Branger), Mr Pullicino Orlando, Mr Riccardi, Mrs Roth, Mrs Rupprecht (alternate: Mrs Wegener), Mrs Schicker, Mrs Yarygina, Mrs Zapfl-Helbling, Mrs Zwerver.

N.B. The names of the members who took part in the meeting are printed in italics.

Secretaries of the Committee: Mrs Kleinsorge, Ms Kostenko


1 Sandra A. Gaundry, Yvonne Peters, Rosalind Currie : Family Mediation in Canada : Implication for Women’s Equality - a Review of the Literature and Analysis of Data from Four Publicly Funded Canadian Mediation Programs, March 1998.

2 Ibid, p. 41.

3 Ibid, p. 44.

4 Ibid, p. 45.

5 Andree G. Gagnon: Ending Mandatory Divorce Mediation for Battered Women, 15 Harv. Women’s L.J. 272, 275 (1992), cited in: . Rene Rimelspach : Mediating Family Disputes in a World with Domestic Violence : How to Devise a Safe and Effective Court-Connected Mediation Program, 2001, p. 2 (printed off mediate.com website).

6 Cited in: Rene Rimelspach : Mediating Family Disputes in a World with Domestic Violence, p. 2. See also: Stephanie Coward-Yaskiw: Restorative justice, in: Horizons, Spring 2002, p. 5.

7 Rene Rimelspach : Mediating Family Disputes in a World with Domestic Violence , p. 4, and Stephanie Coward-Yaskiw: Restorative justice, p. 4, who cites Lois Presser’s and Emily Gaardner’s conclusion from their research that “some victims of abuse are angered at being excluded (from mediation) and others are upset at being required to mediate. In short, victims are demanding choice and control.”

8 Rene Rimelspach : Mediating Family Disputes in a World with Domestic Violence, p. 5.

9 Family mediation in Canada, p. 45. It should be pointed out, however, that some specialists in the USA consider the exclusion of battered women from family mediation as a second victimisation, as the victim is not given the opportunity to change the situation. (Mrs Chin-A-Fat and Mrs Weinmann-Lutz, AS/Ega (2003) PV 3 addendum II rev : Revised draft minutes of the hearing on family mediation, Budapest, Monday 25 February 2003, p. 5.)

10

Family mediation in Canada, p. 46.

11

AS/Ega (2003) PV 3 addendum II rev, p. 5.

12

Rachael Field : Neutrality and Power : Myths and Reality, November 2002, p. 5 (printed off mediate.com website).

13

Ibid, p. 8.

14

Family mediation in Canada

15 Ibid, p. 85.