FAMILY MEDIATION – equality of the parties

FAMILY MEDIATION – equality of the parties Assoc. Prof. Renata Mieńkowska-Norkienė Mykolas Romeris University/ University of Warsaw International conference 23rd November, 2012 Lithuanian Seimas

THE TOPIC: • Šalių lygybė šeimos mediacijoje - standartai bei rekomendacijos Lietuvai • Equality of the parties in familymediation – standards and reccommendationsfor Lithuania

Potential conflict; structural level 1. Parties 2. Dependent on each other 3. Understanding that they cannot realize some plans, use some resources because of the other party Hidden conflict; psychological level 4. Acting to change their situation Revealed conflict; behavioral level

Marriage and family – perfect environment for potential conflicts

THESIS OF THE SPEECH: • Family mediation has a big potential in Lithuania, however, it will not properly develop without strong legal support and high-level standards for mediators • It is important that, while strengthening familymediation in Lithuania, mediators are required to have undergone psychological and legal trainings to: a/ recognize and fight with inequalities in mediation b/ properly secure children’s welfare

LITIGATION VS. FAMILY MEDIATION • Litigation bases on adversarial principle and, very often, on proving one of the party’s fault • Lithuanian society is lacking trust in institutions of the legal system (dissatisfaction with these institutions and their activities) • Family mediation is one of the least intrusive interventions into a familydispute

FAMILY MEDIATION-advantages • Council of Europe: “mediation eliminates causes of conflicts arising in families, helps to improve communication between family members and significantly reduces negative consequences of breaking family ties” (Recommendation No. R 98) • European Union: “agreements resulting from mediation are more likely to be complied with voluntarily and are more likely to preserve an amicable and sustainable relationship between the parties. These benefits become even more pronounced in situations displaying cross-border elements” (Directive 2008/52/EC 2008)

FAMILY MEDIATION-fears • Ratherbig acceptance for conflicts in Lithuanian society in general, resulting from long communist experience under soviet authority • Fear that confidentiality, impartiality and neutrality will not be secured • Generallack of awareness and information about mediation • Fear of lawyers that they would lose their clients or even their jobs because of mediators • Fear that mediation will not secure equality between divorcing spouses to the extent the court procedure does

FAMILY MEDIATION-challenges • Support the parties in conducting rational and future-oriented negotiations but also in emotional relief • Protection of interests of the conflict parties, support of weaker parties, encouraging parties to look for various solutions to their dispute • Protection of children’ rights, drawing parents’ attention towards situation of their children in their conflict • Providing the parties with information about possibility to address their problems to other professionals

A BIT OF STATISTICS:

REASONS FOR INEQUALITY IN FAMILY MEDIATION • „women are less powerful than men in this society (...)women are economically dependent on the men in their families, both during childbearing years and when they are in the work force earning only three-fifths of what their male counterparts can” (Lefcourt 1984, Rosenberg 1991)

REASONS FOR INEQUALITY IN FAMILY MEDIATION • „The fact that women are more risk averse than men may strongly endanger fairness and equity of decisions taken by conflicting spouses (...) women’s risk aversion may lead to accepting unwanted conditions of final agreement if there is a risk of upsetting the husband and experiencing his aggressive reaction after failed mediation” (Cochran 1985, Brinig 1995)

REASONS FOR INEQUALITY IN FAMILY MEDIATION • Women’s altruism • As more “soft” and “caring” women may more often become victims of “tough” and “requiring” men used to generosity of women towards them • To keep good relations with their spouses women might devote more than men

PROBLEMS OF FAMILY MEDIATION • In Lithuania attorneys profit from spending hours on implementing strategy of fighting for their clients’ victory in the court (they are paid usually for the time spent on the case and for visits in the court) • Thereforethey are not particularly interested in quick achievement of divorce agreement

A MEDIATOR’S ROLE • Clear facilitative mediation in a divorce case when one of the parties is visibly vulnerable and scared, there is a threat that the weaker party will not defend her or his interests • Fullyevaluative or direct mediation may cause certain psychological discomfort of the parties and lead to breaking good future-oriented relations despite achieving formal agreement between the spouses

A MEDIATOR’S ROLE • Knowledgeand specific psychological skills to recognize domestic violence • Use of caucuses, empowerment and BATNA • Proper children’s involvement in mediation • Cooperation of mediators with childcare services • Trainings, trainings, trainings... Practice, practice, practice... (to provide high quality of mediators’ work)

RAISING TRUST IN MEDIATION – HOW? • Assurance of high quality of mediators’ work • Providing information about mediation and its advantages in the society • Elimination of myths connected to mediation • Underlining mediation advantages for judges, the whole legal system, the society • Providing access to family mediation before spouses go to advocates

THANK YOU!

FAMILY MEDIATION – equality of the parties