Family law practice & mediation


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Family law practice & mediation

  2. 2. Is Family Law LITIGATION PRACTICE? <ul><li>Parties do need to get Court Orders called Decree Nisi, and Decree Absolute to get Divorced. </li></ul><ul><li>There are Interim Custody applications, Maintenance Orders, Variation Orders, Appeals…. </li></ul><ul><li>Family Law is often placed under Civil Litigation Department </li></ul>
  3. 3. BUT <ul><li>FAMILY LAW INVOLVES MUCH MORE </li></ul><ul><li>SO… </li></ul>
  4. 4. Is Family Law Practice COUNSELLING? <ul><li>Your clients comes to your office and : </li></ul><ul><li>keeps saying, “I don’t know what to do.” </li></ul><ul><li>wants to fight the case in court one day, wants to “give him/her another chance” another day </li></ul><ul><li>asks you, “How will this affect my children?” </li></ul><ul><li>CRIES!!! </li></ul>
  5. 6. Is Family Law Practice SOCIAL WORK? <ul><li>Clients come to you because : </li></ul><ul><li>their friends and family are already fed-up with their complaints about their spouse </li></ul><ul><li>they feel very unhappy and discontented with life and wonder if their marriage was a mistake </li></ul><ul><li>they are often in disagreements with their spouse and in one of the recent arguments the word “divorce” was uttered </li></ul>
  6. 7. Is Family Law Practice SOCIAL WORK? <ul><li>Clients come to you asking for help regarding : </li></ul><ul><li>spouses who spend more time with their friends and even opposite-sex colleagues than at home </li></ul><ul><li>spouses who don’t give them enough money to buy necessities to send children to school </li></ul>
  7. 9. Is Family Law Practice SOCIAL WORK? <ul><li>Clients come to you asking for help regarding : </li></ul><ul><li>spouses who have just moved out of the home without any explanation </li></ul><ul><li>clients who come with bruises, or who are obviously depressed and distraught </li></ul>
  8. 11. Is Family Law CRIMINAL LAW PRACTICE? <ul><li>DOMESTIC VIOLENCE ACT!!! </li></ul><ul><li>Make police report! Help your client to get evidence of physical abuse, or being put in fear of being abused…. </li></ul><ul><li>Maybe someone else is asking you what to do when their friend is being locked up in the house and can’t leave the house to seek legal advice…. </li></ul>
  9. 12. Is Family Law CRIMINAL LAW PRACTICE? <ul><li>PENAL CODE!!! </li></ul><ul><li>Arson. </li></ul><ul><li>Causing bodily harm. </li></ul><ul><li>Murder. </li></ul>
  10. 14. Some newspaper HEADLINES <ul><li>Man burns flat over custody of kids (The Strait Times/Asia News Network, Singapore, 25 th Dec 2001) </li></ul><ul><li>Unemployed man and young son in death plunge (The Star 15 th Feb 2001) </li></ul><ul><li>Dad and kids found dead : Dead man said to be upset over divorce (The Star 24 th July 2008) </li></ul>
  11. 15. Some newspaper HEADLINES <ul><li>Scarred by fury a woman : I knew my ex-wife would not leave me alone, says acid attack victim (The Star, 19 th August 2009) </li></ul><ul><li>Father kills kids, hangs himself over custody rights (Hong Kong - The Star 22 nd Jan 2002) </li></ul><ul><li>Dad kills kids : Man strangles daughters and son, then hangs himself (The Star 31 st July 2004) </li></ul>
  12. 16. FAMILY LAW PRACTICE <ul><li>COMPLEX </li></ul><ul><li>EMOTIONAL </li></ul><ul><li>TIME-CONSUMING </li></ul><ul><li>MEANINGFUL AND SATISFYING </li></ul>
  13. 17. FAMILY LAW PRACTICE <ul><li>to viewed SERIOUSLY </li></ul><ul><li>to be handled SENSITIVELY </li></ul><ul><li>to be done COMPETENTLY </li></ul><ul><li>to be considered a SPECIALIST AREA of law practice, like Maritime Law, Capital Offences Criminal Law ETC. </li></ul>
  14. 18. FAMILY LAW PRACTICE <ul><li>IN THE MIDST OF </li></ul><ul><li>MEDIATION MOVEMENT </li></ul><ul><li>AROUND THE WORLD </li></ul>
  15. 19. PRACTICE DIRECTION No. 5 of 2010 <ul><li>Matrimonial dispute is one of the 6 broad categories of cases </li></ul><ul><li>that are deemed suitable for resolution by mediation. </li></ul>
  16. 20. PRACTICE DIRECTION No. 5 of 2010 <ul><li>The objective of this practice direction is to encourage parties to arrive at an amicable settlement without going through or completing a trial or appeal. The benefit of settlement by way of mediation is that it is accepted by the parties, expeditious and it is final. </li></ul>
  17. 21. PRACTICE DIRECTION No. 5 of 2010 <ul><li>Advocates and Solicitors shall cooperate and assist their clients in resolving the dispute in a conciliatory and amicable manner. </li></ul>
  18. 22. <ul><li>Some pointers when handling family law in a mediation context may be taken from the experiences of other jurisdictions like in </li></ul><ul><li>USA, UK, AUSTRALIA, </li></ul><ul><li>NEW ZEALAND, SINGAPORE. </li></ul>
  19. 23. American Academy of Family Lawyers – Bounds of Advocacy <ul><li>To encourage the study, improve the practice, elevate the standards and advance the cause of matrimonial law, to the end that the </li></ul><ul><li>welfare of the family </li></ul><ul><li>and society be preserved. </li></ul>
  20. 24. American Academy of Family Lawyers – Bounds of Advocacy <ul><li>Few human problems are as </li></ul><ul><li>emotional, complicated </li></ul><ul><li>or seem so important as those problems people bring to matrimonial lawyers… </li></ul><ul><li>Family law disputes occur in a </li></ul><ul><li>volatile and emotional atmosphere. </li></ul>
  21. 25. American Academy of Family Lawyers – Bounds of Advocacy <ul><li>As a counsellor, a problem solving lawyer encourages problem solving in the client. Effective advocacy - considering with the client what is in his/her best interest and determining the most effective means to achieve that result. </li></ul>
  22. 26. American Academy of Family Lawyers – Bounds of Advocacy <ul><li>The client’s best interests include the well-being of children, family peace, and economic stability. </li></ul>
  23. 27. American Academy of Family Lawyers – Bounds of Advocacy <ul><li>A family lawyer must </li></ul><ul><li>competently represent the interest of his/her client </li></ul><ul><li>(the parent), but </li></ul><ul><li>should not do so at the </li></ul><ul><li>expense of the children . </li></ul>
  24. 29. American Academy of Family Lawyers – Bounds of Advocacy <ul><li>All professionals involved in family law litigation should become sufficiently educated in the interdisciplinary aspects of their work to function effectively in collaborative problem-solving. </li></ul>
  25. 30. RESOLUTION (first for family law (UK)) <ul><li>Resolution…Is an organisation of 5700 lawyers who believe in a </li></ul><ul><li>constructive, </li></ul><ul><li>non-confrontational approach </li></ul><ul><li>to family law matters. </li></ul><ul><li>Resolution also campaigns for improvements to the family justice system. </li></ul>
  26. 31. RESOLUTION (first for family law (UK)) <ul><li>Resolution supports the </li></ul><ul><li>development of family lawyers through…training programmes, publications and good practice guides…. </li></ul><ul><li>Resolution also </li></ul><ul><li>trains accredits mediators. </li></ul>
  27. 32. RESOLUTION <ul><li>Members of Resolution are required to: </li></ul><ul><li>Conduct matters in a constructive and non-confrontational way </li></ul><ul><li>Avoid use of inflammatory language both written and spoken </li></ul><ul><li>Retain professional objectivity and respect for everyone involved </li></ul>
  28. 33. RESOLUTION <ul><li>Members of Resolution are required to: </li></ul><ul><li>Take into account the long term consequences of actions and communications as well as the short term implications </li></ul><ul><li>Encourage clients to put the best interests of the children first </li></ul>
  29. 35. RESOLUTION <ul><li>Members of Resolution are required to: </li></ul><ul><li>Emphasise to clients the importance of being open and honest in all dealings </li></ul><ul><li>Make clients aware of the benefits of behaving in a civilised way </li></ul><ul><li>Keep financial and children issues separate . </li></ul>
  30. 36. RESOLUTION <ul><li>Members of Resolution are required to: </li></ul><ul><li>Ensure that consideration is given to balancing the benefits of any steps against the likely costs – financial or emotional </li></ul><ul><li>Inform clients of the options e.g. counselling, family therapy, round table negotiations, mediation, collaborative law and court proceedings </li></ul>
  31. 37. AUSTRALIAN FAMILY DISPUTE RESOLUTION <ul><li>FDR is the legal term for services (such as mediation) that help couples affected by separation and divorce to sort out family disputes. </li></ul><ul><li>FDR can help you to agree on a range of issues relating to property, money, and most importantly – your children. </li></ul>
  32. 38. AUSTRALIAN FAMILY DISPUTE RESOLUTION <ul><li>FDR services are provided by…Family Relationship Centres, community organisations, legal aid commissions, and individuals such as </li></ul><ul><li>lawyers, social workers or psychologists. </li></ul>
  33. 40. AUSTRALIAN FAMILY DISPUTE RESOLUTION <ul><li>You can only apply to a </li></ul><ul><li>family law court for a parenting order when you have a certificate from an accredited FDR practitioner which states that you have made a genuine effort. </li></ul>
  34. 41. AUSTRALIAN FAMILY DISPUTE RESOLUTION <ul><li>Even if you can’t reach agreement, FDR may help you and your former spouse or partner communicate better. </li></ul>
  35. 42. NEW ZEALAND FAMILY COURT <ul><li>The Family Court aims, wherever possible, to help people sort out their own problems by way of </li></ul><ul><li>counselling, conciliation and mediation. </li></ul><ul><li>- Ministry of Justice, New Zealand website </li></ul>
  36. 43. NEW ZEALAND FAMILY COURT <ul><li>Principal Family Court Judge Peter Boshier in Feb 2011 while addressing the Arbitrators and Mediators Institute of New Zealand made the following points about Family matters : </li></ul>
  37. 44. NEW ZEALAND FAMILY COURT <ul><li>Established in 1981 </li></ul><ul><li>Judge-led mediation </li></ul><ul><li>Reviewed in 2003 - there are criticisms of judge-led mediation and that mediation should be by fully-trained and accredited mediators </li></ul>
  38. 45. NEW ZEALAND FAMILY COURT <ul><li>Studies shown that average successful mediation took 3-4 hours (89% completed) </li></ul><ul><li>59% of mediated cases arrived at full-terms settlements </li></ul><ul><li>27% arrived at partial settlements </li></ul>
  39. 46. SINGAPORE FAMILY COURT AND FAMILY RESOLUTION CHAMBERS <ul><li>Presented by District Judge Kevin Ng </li></ul><ul><li>at the 2 nd Asian Mediation Association Conference in Kuala Lumpur </li></ul><ul><li>– February 2011 </li></ul>
  40. 47. SINGAPORE F C & F R C <ul><li>Recognising that matrimonial and family disputes are complex, and often not resolved by simply determining the legal issues, the Family Court established the Family Resolution Chambers in 2006. </li></ul><ul><li>Note : Family Court established in 1996 </li></ul>
  41. 48. SINGAPORE F C & F R C <ul><li>Judge-Mediators or Resolution Judges work with officers of Family Court’s Counselling and Psychological Services in the FRC. </li></ul><ul><li>A Resolution Conference - done by a Resolution Judge alone if it is legal or financial issues at stake, but where children issues are involved, it may be co-mediated with a CAPS officer. </li></ul>
  42. 49. SINGAPORE F C & F R C Judge-Mediators and other mediators are bound by Subordinate Court Code of Ethics for Mediators and Family Resolution Chambers Code of Ethics. IMPARTIALITY, CONFIDENTIALITY, CONSENT OF PARTIES, PROMPTNESS
  43. 50. Hong Kong Family Law Association <ul><li>It is essential to emphasise to the client that the role of the solicitor is to advise and the role of the client to make decisions based on that advice. The Code does not compel a client to accept advice to settle a case where the client does not wish to do so. However, where a client does not wish to settle, it is essential that the costs involved in that decision are fully explained to the client . </li></ul>