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Hong Kong Law Reform Commission |
“Divorce is a significant life event which not only affects the male and female parties involved but also impacts on the development and well-being of children. Family disputes arising from divorce, if not satisfactorily settled, add agony to every party. In the past, family disputes were usually settled through litigation. Over the last two decades, however, mediation has emerged as an alternative approach to dispute resolution.”[9]
1.1 This
report considers the way in which child custody and access disputes are dealt
with under the dispute resolution processes available in Hong Kong. We also
examine the court process itself and the various support services that have been
established to assist in family proceedings.
1.2 In this chapter, we
introduce the different approaches to family dispute resolution, comparing, in
particular, the key features of adversarial litigation on the one hand and
mediation on the
other.[10]
1.3 Research in the area of civil litigation indicates that the
principal institution of the law is not trial, but settlement out of
court;[11] as the prospect of
avoiding trial “provides the leverage or threat that pushes opposing
parties into settlement discussions and
agreements.”[12]
One writer has noted that:
“Because we know that roughly 95 percent of all civil litigation settles, the smart client and competent attorney must focus on how early in the litigation process a fair settlement can be reached in these cases.”[13]
1.4 Often
the lawyer’s method of effecting settlement under the adversarial system
is to adopt a highly competitive approach to the negotiation with the other
party which is based strongly on a ‘we win, you lose’ strategy.
This approach, which has been described as “turbo-charged
negotiation,”[14] often
sees the lawyers for the parties negotiating with each other at arm’s
length while the parties themselves are kept out of any face-to-face negotiation
with each other. The lawyer tends to become “the primary interpreter
to the client of what is fair, based upon what might happen in
court.”[15]
1.5 The Irish Law Reform Commission, in its review of the family
court structure in Ireland, examined the arguments for and against an
adversarial approach and noted that:
" ... The adversarial approach is said to be the most effective way to test the credibility of a witness's evidence by virtue of the process of cross-examination and examination-in-chief. Second, the adversarial system mitigates the risk of excessive judicial interference in the conduct of a family law case."[16]
The
Commission went on to observe, however, that:
"The main arguments against the adversarial system in family law are that it may have a further polarising effect on the parties, and will not always provide the court with the full range of facts which it needs to make informed decisions in areas such as financial provision and child custody."[17]
1.6 It
is our view that in most child custody and access disputes, the best interests
of the child cannot be met by lawyers actively promoting combative attitudes
between the child’s parents and overseeing the filing of acrimonious
affirmations in court. As one writer in this area has stated:
“[B]y any standard of common sense, as well as the accumulated research data showing that children need ... a cessation of inter parental conflict, the adversarial process must rank very low as a method of making satisfactory and lasting post divorce parenting arrangements ... .”[18]
Another
has commented that the adversarial system is thought by many, “to
curdle the opportunity to help families in distress ... to adjust and to move on
in co-operation in relation to their continuing shared
responsibilities.”[19] We
understand in this regard that the Hong Kong Family Court is already
quasi-inquisitorial in its approach in relation to matters concerning
children.
1.7 The negative impact of the adversarial process on family
relationships can be minimised by encouraging the use of alternative dispute
resolution methods at an early stage, so that only the most entrenched cases go
to trial.[20] In many countries,
the preferred method of alternative dispute resolution in family cases is
mediation.
1.8 Mediation is guided by an assumption that parties can reach
agreement, and that their solution will be unique and does not need to be
governed by fixed principles of law. Mediation utilises negotiation techniques,
with the mediator facilitating and guiding the parties’ own negotiation
process. The atmosphere in mediation is non-adversarial. The mediator controls
the process in a way that allows the parties to show mutual respect for each
other, but the mediator himself has no decision-making power. Ground rules have
been agreed in advance which minimise
confrontation.[21]
1.9 In
contrast to the negotiation style under the adversarial system, the focus in
family mediation is to define the issues affecting the parties in mutually
co-operative terms, based on what the couple thinks is fair, and taking
into account their interests rather than their rights.
1.10 It is useful to distinguish the respective roles of mediators,
counsellors and therapists. The public, and indeed lawyers, often confuse their
different roles and services. One common error is to assume that counselling is
only relevant when a party wishes to reconcile; another is to think that a
mediator acts as a counsellor.
1.11 The features of these services do
overlap in various ways. Basic principles of mediation, such as empowerment,
consideration of the best interests of all family members, co-operative
problem-solving and equitable distribution of assets, are compatible with the
theory and practice of marital and family
therapy.[22] Client responsibility,
prevention of emotional damage and fair-play are some of the values of
therapists. The emphasis on communication skills is common to both counselling
and mediation.
1.12 There are significant ways, however, in which family
mediation is distinct from counselling or therapy. Robinson has noted:
“In counselling and psychotherapy the orientation is often towards understanding the past as a way of managing the present. In family therapy the focus is usually on the present as a way of managing the future differently. In mediation the orientation is distinctly future- oriented.”[23]
He added that the mediator works to:
“help the couple both retain and redistribute more equitably the power between them, usually as regards the children and the money, while in psychotherapy and family therapy the practitioner assists the individual to take more power and the family to find ways of using it more effectively and mutually.”[24]
1.13 Mediation
has different goals to therapy. The goal of therapy, including divorce
counselling, is “to help the individuals resolve emotional problems so
as to become more comfortable and functional in their
lives.”[25] The focus of
mediation is on decision-making that achieves the optimum result for both
parties.
1.14 Family mediation also differs in its process. Where the
mediator assesses the process to formulate strategies to facilitate
decision-making, “the therapist makes a more extensive assessment to
promote insight and change in
behaviour.”[26] Mediation
provides the opportunity to the parties to express, in a controlled environment,
their underlying concerns and frustrations which may be blocking negotiations.
This does not turn it into therapy. The couple are not there to go over the
past and work out unresolved emotional issues. (Indeed, mediation may have to
be postponed until these issues are resolved by working with a therapist or
counsellor.) As Marriott and Brown have
stated:[27]
“family mediation is a process in its own right, and it is clear that there should be no hidden agenda to provide therapy or counselling for people whose contract is for family mediation; nor is it likely that properly trained family mediators will confuse these roles.”
1.15 The various functions which a mediator is intended to fulfil are
set out below.[28] These are
divided into procedural, substantive, and communicative functions.
(1) Using joint or separate meetings with the parties
(2) influencing the climate and duration of meetings
(3) chairing meetings and keeping order
(4) maintaining sequential discussion and grouping of issues, and
(5) adjourning meetings if a party needs time to cool off, or is not ready to continue with the process.
(1) Maintaining open and clear communication
(2) translating and transmitting information
(3) exploring alternative solutions advanced by the parties
(4) communicating the rigidities of positions
(5) communicating a party’s commitment to an agreement, and
(6) communicating movement between the parties.
(1) Determining priorities of the parties
(2) reality-testing
(3) deflating extreme positions
(4) developing the habit of reaching agreement
(5) assessing the consequences of an impasse against the values of the remaining issues
(6) finalising and ratifying the agreement, and
(7) monitoring the agreement.
1.16 A more conceptual framework has also been suggested to describe
these various aspects of the role of mediator:
[29]
(1) The opener of communication channels. The parties may not be used to communicating openly or freely. The mediator will facilitate opening and keeping communication channels open.
(2) The legitimizer. The mediator helps each of the parties to recognise the rights of the other to be involved in the process.
(3) The process facilitator. The mediator provides the procedure, guides the exercising of the ground rules, and acts as referee.
(4) The trainer. Mediation can be a subtle process of educating those parties who lack confidence in the art of negotiating.
(5) The resource expander. The mediator provides assistance to the parties to expand their settlement options and linking them with outside experts such as accountants and lawyers.
(6) The problem explorer. The mediator assists them to adopt creative strategies to problem solving that are mutually satisfactory.
(7) The agent of reality. The mediator maintains the reasonableness and practicality of implementation of the proposals for settlement.
(8) The leader. The mediator takes the initiative to keep the negotiations flowing.
1.17 Lawyers commonly have a number of misconceptions concerning the
role of the mediator in the dispute resolution process, such
as:[30]
(1) The mediator’s job is to give each party an assessment of the strengths and weaknesses of their legal claims
(2) the mediator plays a passive listening role and hopes to generate settlement by promoting understanding and empathy among the litigants
(3) because the mediator is impartial, he will prod each party to make a comparable number of concessions, and
(4) a mediator is only interested in a settlement and does not care whether its substantive terms are fair.
1.18 The merits of mediation identified by
researchers[32] include:
(1) economical decisions[33]
(2) rapid settlements
(3) mutually satisfactory outcomes[34]
(4) high rate of compliance[35]
(5) workable and implementable decisions[36]
(6) comprehensive agreements
(7) teaches creative problem-solving strategies and procedures
(8) greater degree of control and predictability of outcome
(9) personal empowerment[37]
(10) as mediation is a win/win strategy, there is a greater chance of the parents achieving an amicable continuing relationship for the children[38]
(11) interest-based mediation agreements can result in a settlement that is more satisfactory than a compromise decision in which the parties share losses and gains
(12) mediated settlements tend to hold over time,[39] and
(13) irrespective of the different programs or locations in the world, the studies show a high degree of client satisfaction.
Kelly has concluded that:
“the real value of mediation lies in its ability to affect the quality and future direction of the spousal relationship, particularly with regard to the ability to co-operate after divorce and the more realistic perception of each other’s anger.”[40]
1.19 The conditions under which mediation is most effective
are:
(1) The parties have a history of co-operation and problem-solving
(2) the parties do not have a long history of adversarial relations or prior litigation
(3) the parties have been able to agree on some issues
(4) their mutual hostility and anger is moderate or low
(5) they have an ongoing relationship
(6) their desire for settlement of the dispute is high
(7) the parties accept the intervention and assistance of the mediator
(8) there is external pressure to settle (time, unpredictable outcome, diminishing benefits)
(9) there are adequate resources to effect a compromise, and
(10) the parties have some leverage on each other (ability to reward or harm).
1.20 Researchers note that there appears to be a double-standard
operating between expectations of litigation and those of mediation. Thoennes
and Pearson have observed:
“[L]itigation is expected to produce only a settlement whereas mediation – in some cases, only two hours in duration – is expected, in addition, to transform intense marital conflict into affectionate cooperation, and intense distress into positive post divorce family adjustment.”[43]
1.21 It
is recognised that mediation is not the panacea for all ills. Mediators accept
that not all disputes are appropriate for mediation and that litigation will
continue to have a role for certain types of cases. These include cases where
there is:
(1) domestic violence
(2) threatening behaviour followed by an unwillingness to negotiate
(3) a lack of communication and trust
(4) dominance and power imbalance
(5) an unresolved separation
(6) a history of psychiatric illness
(7) alcohol or drug abuse, or
(8) child sexual abuse.
1.22 Despite these difficult
areas where mediation may not be an appropriate option for the parties, the
mediation process remains a highly suitable one for many couples who are
undergoing divorce and endeavouring to make the best possible arrangements for
their children’s future. Compared to the adversarial process, where the
parties take a back seat to their lawyers, and the process culminates in a
decision being imposed on them by a third party (judge), mediation has the
potential to allow the parties themselves to decide what is in dispute, to put
across their own respective points of view, and to come to their own unique
agreement based on mutual best
interests.[44]
[9] Hong Kong Polytechnic University, Evaluation Study on The Pilot Scheme on Family Mediation: Interim Report (Apr 2002), at para 1.
[10] In preparing this chapter, we have been greatly assisted by the content of an unpublished dissertation by Ms Paula Scully, former Secretary of the Sub-committee of Guardianship and Custody, entitled "Obstacles to Referral, Planning and Implementation of Family Mediation as a Dispute Resolution Process in Hong Kong; Reflections based on Foreign Systems" (April 1996).
[11] Williams, Legal Negotiation and Settlement (1983), at 1.
[12] Williams, above, at 1-2.
[13] Wulff, “A Mediation Primer,” in Donovan, Leisure, Newton & Irvine, ADR Practice Book (1990).
[14] Donovan, Leisure et al, above, at para 7.2.
[15] Erickson, “The Legal Dimension of Divorce Mediation,” in Folberg & Milne (ed), Divorce Mediation; Theory and Practice, (1988).
[16] Irish Law Commission, Family Courts (Consultation Paper, Mar 1994), at para 4.13.
[17] Same as above.
[18] Saposnek, Mediating Child Custody Disputes (1983), at 13-17.
[19] Fricker, “Family law is different,” in Family Law (Jun 1995) 306, at 308.
[20] Also, time factors are critical for a child, so early settlement, or, if that is not possible, an early hearing, should be encouraged.
[21] This is not to say that mediation does not allow the ventilation of emotion; however, mediation can allow this to happen in a safe and non-threatening way.
[22] Kaslow, “The psychological dimension of divorce mediation,” in Folberg & Milne, Divorce Mediation - Theory and Practice (1988), at 87.
[23] Robinson, Family Transformation through Divorce and Remarriage (1991), at 189.
[24] Same as above.
[25] Brown, “Divorce mediation in a mental health setting,” in Folberg and Milne (1988), above, at 131.
[26] Same as above.
[27] Marriott & Brown, ADR Principles and Practice (1993), at 190.
[28] Scully (1996), above, at 122-123.
[29] As suggested by mediation trainers, CDR Associates, of Boulder, Colorado, US: see same as above, at 121.
[30] Same as above, at 123.
[31] In addition to the material presented here, see further research material appearing in HKLRC Sub-committee on Guardianship and Custody, Consultation Paper on Guardianship and Custody (Dec 1998), at Chapter 7.
[32] See, especially, Pearson & Thoennes, “Mediation of contested child custody disputes,” Colorado Lawyer, (1982) vol 11(2), at 337-355.
[33] The research on costs generally supports the claim that a mediated settlement is likely to be less costly than settlement achieved through adversarial means: see HKLRC Sub-committee on Guardianship and Custody (1998), above, at para 7.26.
[34] Pearson & Thoennes (1982), above. The writers report that, in one survey 77% of the parties expressed extreme satisfaction with mediation. No more than 40% in any of the mediation or adversarial samples reported being satisfied with the court process. See also HKLRC Sub-committee on Guardianship and Custody (1998), above, at para 7.24.
[35] McEwen and Maiman and Pearson and Thoennes found that parties are more likely to follow through with a mediated settlement than comply with those imposed by a third party decision maker like a judge: see McEwen & Maiman, “Mediation in Small Claims Court: Achieving Compliance Through Consent,” Law & Society Review (1984) vol 18(1), at 11-50 and Pearson & Thoennes, “Mediating and Litigating Custody Disputes: A Longitudinal Evaluation,” Family Law Quarterly (1984) vol 17, at 497-524. Further, if re-litigation is a criterion for compliance, only 4 to 12% re-litigated: Irving & Benjamin, Family Mediation: Theory and Practice of Dispute Resolution (1987).
[36] As the implementation details are included in a mediation agreement (compared to a court order, where, whether the order is by consent or not, implementation details are often omitted), this can enhance the likelihood of compliance: see: Bingham, Resolving environmental disputes: A decade of experience (1986, Conservation Foundation).
[37] Cook, Rochl and Shepard found that people who had negotiated their own settlement felt more powerful than those who used others to negotiate for them: see Neighbourhood Justice Centers Field Test: Final Evaluation Report (1980).
[38] See HKLRC Sub-committee on Guardianship and Custody (1998), above, at para 7.25.
[39] Pearson & Thoennes (1984), above, found that if a dispute were to occur later, the parties were more likely to utilise a co-operative way of problem-solving than to use an adversarial approach.
[40] Kelly, “Mediation and Adversarial Divorce: Initial Findings from a Longitudinal Study,” in Folberg & Milne (1988), above, 447 at 453.
[41] See HKLRC Sub-committee on Guardianship and Custody (1998), above, at para 7.20.
[42] See HKLRC Sub-committee on Guardianship and Custody (1998), above, at para 7.29.
[43] Thoennes & Pearson, “Response to Bruch and McIsaac,” Family and Conciliation Courts Review (1992) vol 30(1), at 142-143.
[44] Hewitt (ed), Liu, McDonagh, Melloy and Warren, Hong Kong Legal Practice Manuals: Family (1998), at paras 1.6-1.7.