Family Mediation – Historical Background and the Council of Europe
In 1995, the Third European Conference on Family Law encouraged the Council of Europe (“the Council”) to consider whether a recommendation should be adopted on the use of mediation or other alternative dispute resolution methods in relation to family disputes. Family law experts from Member States were invited by the Council to draw up a recommendation and submit it to the Committee of Ministers. On the 21st of January 1998, the Ministers Committee approved the recommendation with Number R(98)1 (the “Recommendation”) for family mediation. The Recommendation reflects the common understanding that mediation is the best approach for family dispute.
Among other things, the Recommendation states that:
- Whenever the parties agree, Member States should facilitate the registration of agreements resulting from mediation through a judicial or other competent authority and should provide mechanisms for enforcement of such agreements by national law.
- Member States should recognise the autonomy of mediation and the possibility that mediation may take place before, during or after legal proceedings.
- Member States should promote the development of family mediation. For example, it is suggested to Member States that they inform their citizens (through educational programmes) for the benefits of resolving their family disputes through mediation.
- In addition, it was suggested that Member States should establish 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). Through this the parties are enabled to consider whether it is possible and appropriate to mediate the matters in dispute.
In order to help Member States implement the Recommendation, the European Commission for the European Commission for the Efficiency of Justice (CEPEJ) on 07 December 2007 issued “Guidelines for a better implementation of the existing Recommendation Concerning Family Mediation and Mediation in Civil Matters” (“Guidelines”). Among other things, the Guidelines state the following:
1. Member States
Member states should recognise and promote existing as well as new workable mediation schemes through financial and other forms of support. Where successful mediation programmes have been established, Member States are encouraged to expand their availability through information, training and supervision.
Judges play an important role in the development of mediation. They should be in a position to disseminate information, arrange information sessions on mediation and, where applicable, invite the parties to use mediation and/or refer the case to mediation. It is therefore important to have the institution of mediation, either by establishing mediation rules which the court follows or by directing the parties to alternative dispute resolution bodies.
The Code of Conduct for Lawyers should include an obligation or recommendation to consider alternative dispute resolution, including mediation. Therefore, lawyers should be required or advised before going to court to provide relevant information and advice to their clients regarding mediation.
After ten years, CEPEJ decided not to amend the Guidelines, but to supplement them with practical tools that could help Member States implement and develop the use of mediation, but also to support mediation stakeholders. These tools can be found here: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52
In Cyprus, the House of Representatives passed the “Law on Mediation in Family Disputes of 2019.” Having in mind the extremely useful tool of Mediation and the above recommendations, the issuance of relevant regulations will create the proper background for the conduct of family mediation which will enable the citizens of the Republic of Cyprus to resolve their family disputes easily, peacefully and financially efficiently.
This article does not constitute legal advice.