ADR LG7

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ADR LG7

  1. 1. A Matrimonial Law Perspective
  2. 2. ADR - Appropriate Dispute Resolution
  3. 3. Why Have Alternative Dispute Resolution?
  4. 4. 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
  5. 5. Family Law Dispute Resolution1. Involves ongoing relationships2. Involves children3. Involves restructuring the future, not determining the past.
  6. 6. Two forms of dispute resolution that may bemore appropriate to Family Law disputes are :1. Mediation2. Collaborative Law Practice
  7. 7. Both emphasize:languagecommunicationinterest based negotiation rather than position based negotiation
  8. 8. 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
  9. 9. Mediation is not :counsellingarbitrationunassisted negotiationthe provision of legal advicemeditation
  10. 10. Mediation is:process basedassisted negotiation by a neutral 3rd partyconsensus orientated
  11. 11. 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
  12. 12. Mediation - Procedureflexiblecontract basedjoint and /or separate meetings (caucus) with the partiesmediator chairs meeting, helps set agendamediator can adjournmay be multiple meetingsthe mediator is neutral
  13. 13. Mediation - Communicationcommunication a series of skillsmediator translates, reframesmediator explores rigiditymediator reinforces movement in negotiation,mediator places value on agreement - whether small or large
  14. 14. Mediation Substantive Roles - include facilitatinginitial contractidentification of issuesdistinguishing positions and interestsdetermining prioritiesreality testingdeflating extreme positionsreinforcing agreementassessing consequences of impassefinalization, ratification of agreementmonitoring of agreement (where appropriate)
  15. 15. ValuesLitigation............................................MediationRights....................................................InterestsDue Process......................................... ParticipationFormal..................................................InformalPast.......................................................FutureFacts..................................................... RelationshipsPublic....................................................PrivateAdjudicative.........................................Consensual
  16. 16. Four Models of Mediation1. Settlement2. Facilitative3. Therapeutic4. Evaluative
  17. 17. Settlement Model of Mediationthe mediation is intended to encourage incremental moves towards compromise
  18. 18. Facilitative Model of MediationThe mediation is intended to focus on the partiesunderlying needs and interests, including mutualinterests.
  19. 19. Therapeutic Model of MediationThe mediation is intended to address theunderlying problems to the parties problems ordispute.
  20. 20. Evaluative Model of MediationThe mediation helps identify the range of settlement inpart relying on the expertise of the mediator to evaluatethe problem.
  21. 21. Advantages of Mediationeconomicalrapidmutually satisfactory outcomeshigh compliancemodels problem solvingis interest basedis not polarizing, controls escalationthere is high client satisfactionprivateresolutions that go beyond legal issuessave time, money, risk, dignity, stress, relationships
  22. 22. Mediation Disadvantagesno guaranteed outcomeprivateinadequate safeguardsexpensiverequires resources
  23. 23. Hong Kong Court ServicesMediationis not legal advicedoes not take sidesis supportiveis problem solving in orientation
  24. 24. Hong Kong Court servicesthere is a Mediation Coordinator officeinformation sessions, referralsarises from a Pilot Project (2000)
  25. 25. 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?
  26. 26. Advising someone in a MediationDo 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?
  27. 27. Collaborative Law Practice
  28. 28. What is Collaborative Family Law Practice?
  29. 29. 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
  30. 30. “........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
  31. 31. Collaborative Law Practice involves:a limited retainernon-adversarial negotiation
  32. 32. Collaborative Law Practice may….involve other professionals whose focus is to resolve the dispute, NOT to posture or prepare for litigation
  33. 33. Collaborative Law is a response to:the perceived harm caused by the adversarial system to families and children involved in the litigation processthe need to resolve disputes involving ongoing relationships in a more constructive waythe economic cost of litigation
  34. 34. Lawyers in Collaborative Law:are not neutralgive the clients adviceare focused on creating solutions
  35. 35. 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.
  36. 36. Collaborative Lawmay hear the views of a child directly - or through the input of other professionals – e.g. teacher, psychologist, etc.
  37. 37. Collaborative lawyers need special training inInterest-based Negotiation and Communication
  38. 38. There are differences between as well a similarities shared byMediation training - that prepares someone to be an accredited mediatorCollaborative 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 principlesThey are, however, different processes.
  39. 39. 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’
  40. 40. Can Barristers enter a Collaborative Law Agreement inHong Kong?Can Solicitors enter a Collaborative Law Agreement inHong Kong?
  41. 41. 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.
  42. 42. Both Mediation and Collaborative Law seekAppropriate Dispute Resolution for families and children in conflict

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