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Report No. 257

B. International Approaches to Mediation in Child Custody

4.3.1 Despite many differences in the law regulating divorce and child custody worldwide, there is a broad awareness that the best way to reorganize a family after separation involves a consensual/extrajudicial solution that minimizes conflict and encourages collaborative parenting.89

89 Giancarlo Tamanza et al, Separation and Divorce in Italy: Parenthood, Children's Custody, and Family Mediation, 51(4) Family Court Rev. 557, 557 (2013).

4.3.2 Virginia law specifies that, "Mediation shall be used as an alternative to litigation where appropriate."90 The goals of mediation "may include development of a proposal addressing the child's residential schedule and care arrangements, and how disputes between the parents will be handled in the future."91

However, in assessing the appropriateness of a referral for mediation, the court shall ascertain upon motion of a party whether there is a history of family abuse.92 The fee paid to a mediator is set by statute and is paid by the government.93 Although the statutory scheme does not expressly say so, it appears that courts have the obligation to ensure that a mediated agreement is in the best interest on the child.94

90 VA Code Ann. § 20-124.2(A).

91 VA Code Ann. § 20-124.2(A).

92 VA Code Ann. § 20-124.4.

93 VA Code Ann. § 20-124.4 ("The fee of a mediator appointed in any custody, support or visitation case shall be $100 per appointment and shall be paid by the Commonwealth from the funds appropriated for payment of appointments made pursuant to subsection B of § 16.1-267.").

94 See Va. Prac. Family Law § 15:14(i) (2014 ed.) (citing a case where "a trial judge concluded that it would be contrary to public policy to simply enforce an arbitrator's award without determining whether the award is in the best interests of the child, and, while the arbitrator's decision could be given weight, it could not be used to deprive the court of its jurisdiction to determine the child's best interests.").

4.3.3 South Africa law also encourages mediation. It states that, in any matter concerning a child, "an approach which is conducive to conciliation and problem-solving should be followed and a confrontational approach should be avoided."95

More specifically, a children's court may order mediation before deciding an issue, but it must consider several factors before doing so: the vulnerability of the child, the ability of the child to participate in the proceedings, the power relationships within the family, and the nature of any allegations made by the parties.96 Mediation cannot be used in a matter involving the alleged abuse of a child.97 Where parents reach an agreement through mediation, the court must confirm that the agreement is in the best interests on the child.98

Also, when divorced parents who are co-holders of parental rights and responsibilities are experiencing difficulties in the exercise of their rights, they must attempt to agree on a parenting plan before seeking the court's assistance.99 In developing a parenting plan, the parents must either seek assistance from certain specified people (e.g., a social worker) or go through mediation.100

95 Children's Act, No. 38 of 2005, § 6(4).

96 Children's Act, No. 38 of 2005, § 49.

97 Children's Act, No. 38 of 2005, § 71(2).

98 Children's Act, No. 38 of 2005, § 72.

99 Children's Act, No. 38 of 2005, § 33(2).

100 Children's Act, No. 38 of 2005, § 33(5).

4.3.4 In China, a court dealing with a divorce case "shall carry out mediation."101 However, mandatory mediation has been criticized as problematic in cases of domestic violence-mediated agreements in such cases will not be the product of negotiations between parties of equal bargaining power.102

101 Marriage Law of the People's Republic of China (1980), Article 32.

102 Charlotte Germane et al, Mandatory Custody Mediation and Joint Custody Orders in California: The Danger for Victims of Domestic Violence, 1(1) Berkeley J. Gender L. & Just. 175, 176 (2013); see generally Dennis P. Saccuzzo Et Al, Mandatory Custody Mediation: Empirical Evidence of Increased Risk for Domestic Violence Victims and their Children (2003), available at
https://www.ncjrs.gov/pdffiles1/nij/grants/195422.pdf.

4.3.5 In Canada, family mediation is widely promoted as an alternative to litigation.103 The Divorce Act, 1985 requires every lawyer or advocate acting on behalf of a divorcing spouse to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of mediation facilities that might be able to assist with this.104 A lawyer must submit a certification to the court that he or she has discussed this with the client.105

In addition, Canadian family law provides that parents that cannot agree must attend a mediation information session before appearing before a judge.106 The session provides information on the mediation process, including the nature and objectives of mediation, the steps involved in the process, the role of the mediator, and the roles played by the spouses.107

After attending this session, the spouses can proceed with mediation or continue legal proceedings. Provincial laws also provide for mediation.108 In the province of Quebec, for example, divorcing couples that have children can obtain the services of a professional mediator during the negotiation and settlement of their application for separation, divorce, dissolution of the civil union, child custody, spousal or child support, or the review of an existing decision.109

Five hours are paid by the Family Mediation Service and another 2.5 hours can be added when a revision of an existing court judgement is needed.110 Some provincial laws also specify the duties of dispute resolution professionals111 and the required qualifications for family mediators.112

103 Francine Cyr et al, Family Life, Parental Separation, and Child Custody in Canada: A Focus on Quebec, 51(4) Family Court Rev. 522, 528 (2013).

104 Divorce Act, 1985, § 9(2).

105 Divorce Act, 1985, § 9(3).

106 Francine Cyr et al, Family Life, Parental Separation, and Child Custody in Canada: A Focus on Quebec, 51(4) Family Court Rev. 522, 528 (2013).

107 Id.

108 Id.

109 Id.

110 Id.

111 See, e.g., British Columbia Family Law Act, § 8, available at
http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_11025_01.

112 See, e.g., British Columbia Family Law Act Regulations, B.C. Reg. 347/2012, §§ 4-5, available at
http://www.bclaws.ca/civix/document/id/complete/statreg/331105891.

4.3.6 This chapter set forth the existing law in India regarding mediation in family matters and how such mediation is implemented in other countries. The following chapter will discuss other important considerations for deciding child custody cases.



Reforms in Guardianship and Custody Laws in India Back




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