Family mediation: the best way of resolving family disputes

What is family mediation?

Family Mediation is the alternative, out-of-court way of resolving family disputes, which is now possible also in Greece, following the introduction of mediation by means of Law Nr. 3898/2010.

Family Mediation is a process in which the parties to the dispute take part voluntarily, in order to resolve their personal and financial differences and to reach a viable solution, with the help and contribution of a third, neutral, party, the mediator.

It is suitable for:

-          Married couples, or couples who have signed a cohabitation agreement, whether they have children or not. The couple may be deciding to separate or may have already stopped living together and may wish to settle all outstanding matters and disputes-whether personal or financial- without having to go to court. They may choose instead the most modern, civilized and, possibly, painless way, which is mediation, adapted to their needs, their wishes and their interests.

-          Same - or different – sex couples, who live together without marriage or civil partnership agreement, and end their relationship.

-          Resolving differences between spouses, partners or parents who separate and are of different nationalities or live in different countries. These are the so-called cross-border disputes, which include the unlawful removal and/or retention of the child/children by one of the parents and the consequent deprivation of contact with the other parent. In such complex cases, where more than one jurisdictions, more time and more money are involved, often with uncertain outcome, mediation gives parents the opportunity to work out, in a time-efficient and direct way, a solution for matters such as the return of the child, living arrangements, custody, contact with the non-resident parent and financial support.

Family mediation is not:

-          An attempt at reconciliation

-          Couples counseling

-          Family Therapy

Issues that can be resolved with family mediation

Family Mediation may help in resolving issues such as:

-          Children’s custody or living arrangements

-          Children’s contact with the non-resident parent, as well as with other relatives

-          Child support

-          Children’s everyday issues

-          Use of the family home

-          Spousal support

-          Distribution of spouses’ assets (property, moveable items, family business, joint accounts etc.) and other arrangements regarding financial issues.

Where and when mediation can take place

The process of mediation takes place in a neutral, specially designed space, chosen by the mediator, in agreement with the parties and/or their lawyers.

Mediation may take place at any time during the dispute, that is, before any court procedure starts, or at any stage after the court procedure has started.

Main characteristics of mediation

Mediation is:

-          Voluntary The parties choose mediation and remain in it as long as they wish. If, during the mediation, one of the parties feels that they do not want to go on, they are free to go.

-          Impartial The mediator is an independent and neutral third party and is not connected in any way with the interests of either party.

-          Confidential The mediator, the parties, their legal counselors (lawyers) and any other advisors (e.g. psychologists) that may take part in the mediation, do not have the right to reveal to others what is taking place during the mediation, or its outcome. They may not testify as witnesses in any future legal proceedings for the same dispute. Additionally, the mediator is obliged not to convey to one party any information confided to him/her during the private meetings with the other party, unless s/he has the party’s explicit consent. No minutes are taken during the mediation.

The role of the mediator

The mediator is a specially trained, accredited professional, chosen by the interested parties, usually with the help of their lawyers.

The mediator is neither a judge, nor an arbitrator. She/he does not make any decisions about the way the dispute will be resolved, nor does she/he indicates, directly or indirectly, any course of action. She/he facilitates communication between the parties and helps the parties find a solution to their dispute and reach a mutually acceptable agreement. More specifically, the mediator, trained in communication skills and methods, in dialogue facilitation and in negotiation techniques, manages to create a climate of trust and safety, in which the parties – spouses/partners/parents – have the possibility to speak freely and be heard, to express their opinions and their feelings, which are also part of what the mediator has to deal with, so that they will not be finally an impediment for reaching an agreement.

The goal of the mediator is to look into and identify the deeper, the real causes of the dispute, in order to help towards its final resolution. The mediator’s attitude is one of politeness, respect, neutrality, impartiality and equal treatment of the parties. She/he accepts, recognizes and responds to the parties’ viewpoints and feelings without criticizing them. She/he points out the positive aspect of various situations and the common points and mutual aims of the parties, so that the parties may feel that they work together for the resolution of their dispute. Especially in the case of couples with children, there is no more important common goal from the best interest of the children, which is where mediation is focused on.

For this reason, the mediator does not rely merely on the positions and demands of the two parties, as would be the case in a court procedure, but tries to identify their real needs and interests, so that the solution that will finally be reached by the parties will address them in the best possible way.

The mediation process

The mediator, the parties involved and their legal advisers take part in the mediation. Given the fact that mediation is a flexible process, other people may also take part – provided that all parties agree- such as a psychologist, who may give advice regarding issues about the changes in the family and the children, or an accountant, who may advise on issues of asset management and distribution.

The process of family mediation is usually completed in two to three sessions that do not take place on the same day, allowing the parties involved to work on specific issues and formulate proposals. Each session usually lasts between 3 and 4 hours, without excluding the possibility that the mediation may be concluded in a longer, one-day session.

During the mediation, the mediator, in private and joint meetings with the parties, discusses their views and their concerns on equal terms and helps them negotiate freely.

More specifically, the mediator helps the parties determine the issues they need to resolve and, following that, to discuss and negotiate on these issues looking at possible solutions, in view of their proposals and counterproposals.

The mediator also works with the legal advisors of the parties, so that the agreement the parties reach is explicitly and accurately written down in the agreement document, which is immediately executable. The written mediation agreement, if both, or even one, parties wish, can be registered in the registry of the single-member court of the first instance and it then becomes effective and equivalent to a court decision.

Cost

This includes:

a) The fee of the mediator, which is specified by Law to the amount of 100 Euro per hour, for 24 hours at most, and burdens the parties in equal parts, unless they agree otherwise.

b) The lawyer’s fee, for his participation in the mediation process, which is payable by the lawyer’s client, according to their agreement. In case there is no such agreement, the lawyer’s fee will be a minimum of 150 Euro, plus the minimum fee for legal consultation that is 80 Euro per hour.

c) An amount of 100 euro for state duties, payable when registering the written mediation agreement at the competent court of the first instance in order for it to become effective as an “enforcement order”, that is in order for it to have the value of a court decision. This amount is divided equally between the parties unless they agree otherwise.

Advantages of family mediation

Family mediation leads to solutions that arise as a result of the free will of the parties and aim at their maximum satisfaction.

It is brief in duration and much less costly than a court procedure.

It is completely confidential and therefore it safeguards the privacy and the protection of sensitive information regarding the parties.

It succeeds in addressing all personal and financial aspects of a family dispute and results in an agreement that is both binding and immediately executable.

It protects the emotional wellbeing of spouses and parents and mostly the wellbeing of children, by avoiding the confrontations and the deterioration of family relationships that are caused by court procedures.

It transforms negative feelings (anger, indignation, fear, resentment, vindictiveness) into positive (relief, satisfaction, feeling of security, optimism) and creates a spirit of collaboration, aiming to resolving the dispute to the benefit of both parties (win – win situation). Therefore, there is no winner or loser.

It helps parents to re-establish their relationship and to maintain communication, as well as to collaborate in the future, for the benefit of their children.