1. The principle function of law is settlement.2. A trial with is just one form of dispute resolution.3. Trails are polarizing and create a "win-lose" atmosphere.4. Such a process is not appropriate, constructive to many family law disputes.5. Litigation has economic and emotional costs for a familyHK Law Reform Commission, The Family Dispute ResolutionProcess, 2003
Family Law Dispute Resolution1. Involves ongoing relationships2. Involves children3. Involves restructuring the future, not determining the past.
Two forms of dispute resolution that may bemore appropriate to Family Law disputes are :1. Mediation2. Collaborative Law Practice
Both emphasize:languagecommunicationinterest based negotiation rather than position based negotiation
Interest Based Negotiation (Integrative Bargaining)focuses on developing mutually beneficial agreements based on the interests of the disputants.Interests include the needs, desires, concerns, and fears important to each side.Interests are the underlying reasons why people become involved in a conflict.Interests are distinguished from positions
Mediation is not :counsellingarbitrationunassisted negotiationthe provision of legal advicemeditation
Mediation is:process basedassisted negotiation by a neutral 3rd partyconsensus orientated
Mediation ..... a DefinitionThe process by which the participants together with theassistance of an neutral person or persons,systematically isolate disputed issues in order to developoptions, consider alternatives, and reach a consensualsettlement that will accommodate their needs.J. Fohlberg and A. Taylor
Mediation - Procedureflexiblecontract basedjoint and /or separate meetings (caucus) with the partiesmediator chairs meeting, helps set agendamediator can adjournmay be multiple meetingsthe mediator is neutral
Mediation - Communicationcommunication a series of skillsmediator translates, reframesmediator explores rigiditymediator reinforces movement in negotiation,mediator places value on agreement - whether small or large
Mediation Substantive Roles - include facilitatinginitial contractidentification of issuesdistinguishing positions and interestsdetermining prioritiesreality testingdeflating extreme positionsreinforcing agreementassessing consequences of impassefinalization, ratification of agreementmonitoring of agreement (where appropriate)
Four Models of Mediation1. Settlement2. Facilitative3. Therapeutic4. Evaluative
Settlement Model of Mediationthe mediation is intended to encourage incremental moves towards compromise
Facilitative Model of MediationThe mediation is intended to focus on the partiesunderlying needs and interests, including mutualinterests.
Therapeutic Model of MediationThe mediation is intended to address theunderlying problems to the parties problems ordispute.
Evaluative Model of MediationThe mediation helps identify the range of settlement inpart relying on the expertise of the mediator to evaluatethe problem.
Advantages of Mediationeconomicalrapidmutually satisfactory outcomeshigh compliancemodels problem solvingis interest basedis not polarizing, controls escalationthere is high client satisfactionprivateresolutions that go beyond legal issuessave time, money, risk, dignity, stress, relationships
Hong Kong Court ServicesMediationis not legal advicedoes not take sidesis supportiveis problem solving in orientation
Hong Kong Court servicesthere is a Mediation Coordinator officeinformation sessions, referralsarises from a Pilot Project (2000)
Recurring Legal Issues in Mediation1. Discovery2. Confidentiality - open v closed mediation3. Can mediation be ordered by the Court?4. Can an agreement or contract to mediate be enforced?5. Hearing the Childs View, Voice6. Unequal bargaining - eg concerns re domestic violence7. Sealing the deal - are "deals" all or nothing?8. Regulation of Mediators, who can be a Mediator?
Advising someone in a MediationDo you know what model of mediation you and your client are seeking?Is the contract to mediate clear re issues like confidentiality, length of process, cost, need for legal advice for final agreement, who prepares the final agreement, etc?Do you have adequate disclosure?
Collaborative Law Practice A Collaborative Law negotiation takes place when there is an agreement between the parties and their lawyers that "precludes the professionals from entering into litigation should the dispute fail to be resolved"Dr. Keith HottenHK Lawyer Feb 2009
“........the agreement by all the professionals in the ‘team’to disbar themselves from litigating the conflict in theevent that matters have to go to court is central to thecollaborative process.Collaborative professionals are trained how to conductnon-confrontational negotiations and are contractuallyobliged to keep all disagreements in check.....”Dr. Keith HottenHK Lawyer Feb 2009
Collaborative Law Practice involves:a limited retainernon-adversarial negotiation
Collaborative Law Practice may….involve other professionals whose focus is to resolve the dispute, NOT to posture or prepare for litigation
Collaborative Law is a response to:the perceived harm caused by the adversarial system to families and children involved in the litigation processthe need to resolve disputes involving ongoing relationships in a more constructive waythe economic cost of litigation
Lawyers in Collaborative Law:are not neutralgive the clients adviceare focused on creating solutions
United Nations Convention on the Rights of the Child(UNCRC). Article 12 says:States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of the national law.
Collaborative Lawmay hear the views of a child directly - or through the input of other professionals – e.g. teacher, psychologist, etc.
Collaborative lawyers need special training inInterest-based Negotiation and Communication
There are differences between as well a similarities shared byMediation training - that prepares someone to be an accredited mediatorCollaborative Law Training that prepares one to practice Collaborative LawBoth involve –Negotiation Training - which prepares a someone to negotiate effectively in a responsible manner using interest based principlesThey are, however, different processes.
Collaborative lawyers agree upon a number of procedural and behavioural requirements: to conduct negotiations in a respectful constructive way to focus on the parties issues (litigation is driven by Court schedules) to put the interests of children first to ensure clients understand the benefits to children of cooperation - and harm of conflict to ensure negotiations are honest, with appropriate disclosure to maintain professional objectivity and respect for others to consider long term and short term consequences of issues, actions, communications to separate children and financial issues to ensure flexibility to ensure that all understand the benefits of agreement vs the costs of engaging a whole new team to litigateSee - HKFLA Voluntary ‘Code’
Can Barristers enter a Collaborative Law Agreement inHong Kong?Can Solicitors enter a Collaborative Law Agreement inHong Kong?
Recurring Legal issues with Collaborative Law1. Discovery (like mediation)2. Cost - especially if no agreement reached3. Delay - if no agreement4. What if a Collaborative agreement is abandoned and one party has had a lawyer "ready to go" and the other does not?5. Collaborative Law tends to be an all or nothing retainer, individual issues can be mediated.
Both Mediation and Collaborative Law seekAppropriate Dispute Resolution for families and children in conflict