• Annmarie Baranik

Family Mediation in other countries outside of the US

Updated: Aug 6, 2020

In recent articles I spoke about Family Law Mediation in Los Angeles California and the United States but what is the rest of the world doing?

The UK mediation has seen a rise since the Children and Families Act of 2014 when it made it mandatory for separating couples to go through a Mediation Information and Assessment Meeting (MIAM) before hearing in the Court.

Since the early 1980s a number of institutions in South Africa have championed mediation. The Independent Mediation Service of South Africa (IMSSA) was established in 1984. It trained mediators who then worked through Local Dispute Resolution Committees set up as part of the National Peace Accord. Initial training was undertaken by the UK's ACAS. IMSSA covers mediation within unionised environments.

Informal processes that engage a community in more holistic solution-finding are growing.

After 1995, the country established mediation agreements binding in law. The process has grown from generally covering collective agreements such as for wages or terms and conditions, to encompass more individual matters including dismissal.

In Australia mediation codes of conduct include those developed by the Law Societies of South Australia and Western Australia and those developed by organizations such as Institute of Arbitrators & Mediators Australia (IAMA) and LEADR. Australia did not adopt a national accreditation system, which may lead to a bad choice of mediators.

The Australian government claimed the benefits of mediation to include the following:

  • Cost saving

  • Reduced polarization

  • Education

  • Broader issues vs the courts

  • Greater access to justice

  • More control by disputant over the process

The European Commission has promulgated codes of conduct for mediators.

In Canada codes of conduct for mediators are set by professional organizations. In Ontario three distinct professional organizations maintain codes of conduct for mediators. The Family Dispute Resolution Institute of Ontario and the Ontario Association of Family Mediators set standards for their members who mediate family matters and the Alternative Dispute Resolution Institute of Ontario who sets standards for their members.

The Alternative Dispute Resolution Institute of Ontario, a regional affiliate of the Alternative Dispute Resolution Institute of Canada, uses the code of conduct from the federal organization to regulate the conduct of its members. The Code's three objectives are to provide guiding principles for the conduct of mediators; to promote confidence in mediation as a process for resolving disputes; and to provide protection for members of the public who use mediators who are members of the institute.

In France, professional mediators have created an organization to develop a rational approach to conflict resolution. This approach is based on a "scientific" definition of a person and a conflict. These definitions help to develop a structured mediation process. Mediators have adopted a code of ethics which guarantees professionalism.

In Germany, due to the Mediation Act of 2012, mediation as a process and the responsibilities of a mediator are legally defined. Based on the German language and the specific codification it has to take into account, that all persons who "mediate" in a conflict (defined as facilitation without evaluation and proposals for solution) are tied to the provisions of the Mediation Act even if they call their approach/process not mediation but facilitation conciliation, conflict counseling, consulting, conflict coaching or whatever else. For example, according to sec. 2 and sec. 3 of the German Mediation Act, the mediator has certain information and disclosure obligations as well as limitations of practice.

In Germany "certified mediators" from Sept. 1, 2017 must do a minimum of 120 hours of initial specialized mediator training as well as case supervision and further ongoing training of 40 hours within 4 years. Beyond this basic qualification, the leading mediation associations have agreed on quality standards higher than the minimum standards of the national regulation to certify their mediators. To become an accredited mediator of these associations one has to complete an accredited mediation training program of a minimum of 200 hours incl. 30 hours of supervision as well as ongoing training (30–40 hours within three years).

Within the United States, the laws governing mediation vary by state. Some states have clear expectations for certification, ethical standards and confidentiality. Some also exempt mediators from testifying in cases they've worked on. However, such laws only cover activity within the court system. Community and commercial mediators practicing outside the court system may not have such legal protections. State laws regarding lawyers may differ widely from those that cover mediators. Professional mediators often consider the option of liability insurance.

Conflict resolution systems are always culturally specific and in the last 20 years alternative conflict resolution systems in Nordic countries have become more common. We are seeing them in Mexico now and many other countries as well as International mediation especially in the 2000’s. New mediation systems have developed and also the caseload in mediation has increased.

If you have had any experience in Mediating in another country we would like to hear your experience good or bad to make ours more helpful. After all “it takes a village”! In this case it takes the world…..

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