Upholding parental responsibility by family mediation: revisiting the role of the law for children in divorce in Hong Kong

PurposeThis paper aims to analyse the different requirements of Practice Direction 15.10 (which governs the process of family mediation in Hong Kong) and Practice Direction 31 (which governs the process of general mediation in Hong Kong), and to highlight the need to incorporate the spirit of family mediation into legislation to better protect children’s interest in a family dispute.Design/Methodology/approachThe paper reviews and compares the content on Practice Direction 15.10 and Practice Direction 31 issued by Chief Justice of the Hong Kong Court of Final Appeal, and adopts interpretative and analytical approaches to evaluate their impact.FindingsIn an effort to promote parental responsibility-based negotiation in divorce proceeding, a missed opportunity in enacting the Children Proceedings (Parental Responsibility) Bill in 2015 might be a blessing in disguise as it offers another chance for policy makers to consider how to direct parties to negotiate and communicate, to seek and benefit from professional guidance on a continuous basis, and to seek alternative channels to resolve disputes other than the court room. The policy and the law advocating a switch from a “rights-based” to “responsibility-based” approach in handling children’s matters should be revisited by incorporating the spirit of family mediation into legislation.Originality/valueAnalyses are conducted through direct contextual review and documentary research. This paper conducts literal analysis of court guidance and unveils policy implications for the general public. It would be of interest to judicial officers, scholars and government officials concerning children’s rights and parental responsibility in divorce proceedings.

On the question of the psychological component of family mediation

The relevance of the topic under consideration is due to the need to improve the effectiveness of family mediation. The presented statistical data of the Supreme Court of the Russian Federation, the Center for Conflict Resolution of the St. Petersburg State Budgetary Institution «CCSP» indicates the low effectiveness of the alternative procedure for settling family disputes with the participation of a mediator. Analyzing the reasons for this, the authors turn to the world experience in the development of family mediation, focused on the development of standards for training specialists on the basis of serious psychological training. The Russian professional standard «Specialist in Mediation (mediator)» in a specialized field of activity sets the requirements for the special knowledge and skills of a mediator in the field of social, humanistic, cognitive psychology, psychological correction of attitudes, perception, and emotional response. However, the analysis of the basic training program for mediators in the family mediation module, as well as the training programs for mediators offered by Russian higher education organizations, indicates that there is no serious psychological training for mediators to resolve disputes arising from family legal relationships. The authors’ practical first-hand experience makes it possible to highlight the psychological component of family conflicts, which significantly distinguishes family mediation from mediation in the field of civil or labor disputes and requires a mediator to have competencies in the field of family psychodiagnostics, family counseling and therapy. The authors substantiate a number of methodological and technological provisions of the family mediation procedure.

Regularities of family mediation development in foreign countries and in Ukraine

The main task at the present stage is the formation of mediation as a type of professional activity. That is why, the study of the views of domestic and foreign scientists regarding the features of the professional activity of a mediator is an integral part of the qualitative implementation of the institution of mediation in Ukraine as a whole, and provides an opportunity to improve the level of professional training of future mediation specialists in accordance with the requirements of the present. Due to the tendency to use private legal mechanisms for resolving private disputes in private disputes, we consider it necessary to develop a doctrinal non-jurisdictional way of resolving private disputes, namely mediation. The mediation procedure is an organized procedure with the participation of a mediator, assists the parties in resolving a dispute and making a decision for both parties. The main difference between family mediation and other types of dispute resolution, in the context of the development of the education system, is its non-directiveness. Mediation only uses the law, in contrast to the traditional methods based on legal regulation. A flexible and democratic way of resolving disputes based on the voluntary participation of the parties creates conditions for the parties to control not only the development and decision-making process, but also the quality of this decision, guaranteeing them complete confidentiality, ensuring the preservation of their reputation and the possibility of constructive interaction in the future. Now in Ukraine, a stage of formation of a professional community of mediators and a consumer niche is underway, which indicates that Ukrainian mediation is currently at the initial stage of its institutionalization.

Screening for Intimate Partner Violence in Family Mediation: An Examination of Multiple Methodological Approaches Using Item Response Theory

Many divorcing/separating parties seeking mediation to resolve family-related issues report intimate partner violence (IPV) victimization from the other party in the case. It is imperative that mediation staff screen parties for IPV so they can make informed decisions regarding how to proceed with mediation. Existing IPV screens for mediation have significant limitations. We examined three methodological approaches using item response theory that address these limitations by increasing the efficiency and clinical utility of an existing standardized IPV screen for mediation, the Mediator’s Assessment of Safety Issues and Concerns ( N = 904 mediating parties). We identified three subsets of items, with initial evidence for their validity, focused on helping mediation staff identify high levels of IPV or parties at risk for potentially negative mediation outcomes or needing specialized safety accommodations in mediation. Clinical recommendations are provided indicating which approach is most promising to be used in mediation settings. Overall, findings help advance understanding of how item response theory methodology can enhance the precision of IPV screening in mediation.

Post-Grillo: New Family Mediation Protections and Revised Dangers

Until Professor Trina Grillo’s article warned readers of its process dangers, the family mediation process was viewed as a positive antidote to extensive and costly litigation and as a valuable opportunity for families to work together informally to resolve their custody, support, and property issues. Grillo, an academic and a practicing mediator, asserted that family mediation was not living up to its potential, that mediators hurt women and minorities by mandating participation without lawyers, and that its use created a false sense of empowerment. She was concerned that some mediators were not neutral, failed to focus on clients’ individual needs, and were unable or unwilling to deal with women’s emotions, especially reasonable anger and frustration....

Family Mediation: A New Form Of Resolving Family Disputes

Today, the role of the institution of mediation in resolving disputes around the world is increasing. Particularly, since 2018, a completely new system - the mediation system - has entered the legislation of Uzbekistan as an alternative way to resolve disputes. Family mediation is one of the types of mediation. This article draws several conclusions based on foreign experience in family mediation, the views of legal scholars, and the study of national legislation as a new form of family dispute resolution.

The Need for Culturally Responsive Mediation Practices to Enhance the Process and Outcomes of Mediation for Unmarried Fathers

The past decade has shown significant progress in family mediation services in South Africa, following the implementation of the amended Children’s Act of 2005, which has not fully considered issues relating to customary law and culture pertaining to mediation with unmarried fathers. A broader qualitative explorative study was undertaken to understand the experiences and perceptions of unmarried fathers, unmarried mothers and mediators regarding mediation. This article focuses on factors influencing the process and outcomes of mediation for unmarried fathers. Semi-structured interviews were conducted with a sample of seven unmarried fathers and eight mediators. Factors were identified that influence the process and outcomes of family mediation, of which culture, customary law and family dynamics are the focus of this article. Findings from Xhosa and Zulu participants in the study highlight the need for the inclusion of culturally responsive approaches to family mediation services by foregrounding issues relating to customary law, culture, and unmarried fathers.