Chapter 1

Introduction to

the family dispute resolution process

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“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

The adversarial process

Negotiation and settlement

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

The adversarial system and family disputes

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.

Mediation as a family dispute resolution process

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.

Features of 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.

Mediation contrasted with counselling and therapy

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.”

Functions of the mediator

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.

Procedural 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.

Communicative functions:

(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.

Substantive functions:

(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.

Conceptual roles of the mediator

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.

Common misconceptions about the role of the mediator

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.

The merits of mediation³¹

1.18 The merits of mediation identified by researchers³² include:

(1) economical decisions³³

(2) rapid settlements

(3) mutually satisfactory outcomes³⁴

(4) high rate of compliance³⁵

(5) workable and implementable decisions³⁶

(6) comprehensive agreements

(7) teaches creative problem-solving strategies and procedures

(8) greater degree of control and predictability of outcome

(9) personal empowerment³⁷

(10) as mediation is a win/win strategy, there is a greater chance of the parents achieving an amicable continuing relationship for the children³⁸

(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

Factors in the effectiveness of mediation⁴¹

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).

Contra-indicators to the use of mediation⁴²

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

Chapter 2

Family dispute resolution –

The current situation in Hong Kong

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“Divorce is a growing problem in Hong Kong. The number of divorce cases has increased sharply over the past two decades. In 1981, … couples filed 2,811 divorce petitions. The figure rose to 6,767 in 1990 and to 13,737 in 2001. According to the Hong Kong SAR Judiciary, 13,425 divorce Decrees Absolute were granted in 2001, six times the number (2,060) granted in 1981.”⁴⁵

2.1 It has been observed⁴⁶ that approximately ten percent of the total number of divorce cases which arise each year in Hong Kong involve disputes which need to be settled in ancillary proceedings in court. It has also been noted that a large amount of public money is spent annually on legal aid costs to assist couples seeking divorce.⁴⁷ Potentially cheaper and speedier methods of resolving family disputes have therefore been actively pursued in Hong Kong in recent years, the principal model being mediation.

2.2 This chapter begins by outlining the existing court process related to divorce and child custody matters. In the second part of this chapter we examine the non-adversarial support services now available in Hong Kong to assist in the resolution of family disputes.

The adversarial system – the court in practice

Standard procedures in divorce

2.3 The usual steps taken in the legal process of divorce are set out below.⁴⁸ The arrangements to be made in respect of the children are obviously an integral part of this divorce process.

1. The applicant spouse first files a petition for divorce in the Family Court Registry or the parties make a joint application for divorce.⁴⁹

2. Where a petition has been filed, the respondent spouse is served with the petition and may reply to it.

3. In some cases there may be urgent applications for interim orders such as interim custody, access or maintenance.

4. Affidavits may be filed at this stage.

5. The matter then comes into the court list for a decree nisi.

6. Usually the divorce decree itself is undefended, though there may be disputes concerning property, maintenance, custody or access. If the divorce is undefended, the petitioner will be called to verify the accuracy of the petition and the statements concerning the arrangements for any children. This is in open court. The respondent may or may not attend. If he does attend, the judge will confirm whether the respondent wishes to defend the proceedings.

7. If there has been agreement on custody, access and other matters, the judge can approve the agreement and make final orders.

8. Six weeks after the granting of a decree nisi, an application for the decree absolute can be made. The decree absolute will issue approximately two months later.

Where the parties agree

2.4 Before a decree absolute can be granted, the court must be satisfied with the arrangements for the children.⁵⁰ (In cases where the parties have reached agreement, however, there is concern that long divorce lists may mean that the judge has little time to consider the arrangements for the children, particularly as social inquiry reports are not prepared for the court where the parties agree.)

Where there is no agreement

2.5 If no agreement has been reached on custody or access, the case will be adjourned to a call over date. At the call over, the court gives directions on what steps should be taken before the case is ready for hearing,⁵¹ such as whether the preparation of a social welfare officer’s report, or the expert report of a child psychologist, is required.

2.6 It is preferable that affidavits are not lodged until after the social welfare officer’s report or the psychologist’s report is available. This is because some cases will settle as the parties will decide to abide by the recommendation of the social welfare officer’s report.

2.7 At the next call over, the report will be available to the judge and the parties. The social welfare report, which can take some months to prepare,⁵² is prepared by one of the officers attached to the Family and Child Protective Services Units (formerly the Child Custody Services Unit) of the Social Welfare Department. The social welfare officer will meet the family and see the child separately with each parent and the officer’s report is based on his observations and assessment. While the report is awaited the status quo is maintained, which can operate to the disadvantage of the spouse who does not have physical custody.

2.8 While the court will seek reports from a social welfare officer, it will not generally seek a psychiatric report. Where an examination is felt to be necessary for a special reason, then the particular expertise required to assist the court will be readily apparent and the court will be able to make an appropriate order.

Procedure after social welfare officer's report received

2.9 If the matter settles after the submission of the social welfare officer’s report, then an order can be made by consent. If it still has not settled, the court will give directions as to what affidavits or affirmations should be filed, and for the attendance of the social welfare officer or psychologist for cross-examination. A mutually convenient date for the contested hearing will be allocated by the court registry after filing of the affidavits date.

Pre-trial reviews

2.10 Order 25 of the High Court Rules provides for a Summons for Directions, which can be used to establish pre-trial reviews. Pre-trial reviews or settlement conferences provide for meetings between the parties and the judge, with or without their lawyers, to help identify the issues that are actually in dispute. Such meetings can also be used to encourage a settlement of the dispute, though this does not seem to be used in Hong Kong for that purpose. The judge’s role in this situation is that of a facilitator.

Contested custody cases

2.11 While those cases which are not settled are in the minority, they usually involve more bitterness. Children can have a symbolic significance which makes this type of litigation bitter and protracted.⁵³ It can lead to subsequent child abduction. Delay over a custody battle worsens the trauma for both children and spouses.