A. GUIDELINES OF THE BAFM FOR MEDIATION IN FAMILY CONFLICTS.
The increasing wish, to settle family conflicts personally and in the interest of all those concerned, especially in the case of separation and divorce, means that suitable methods must be sought for. One approach is mediation (bringing together) in family matters, which combines psycho-social and legal aspects of the settlement of the conflict with one another.
The BAFM has decided to issue guidelines which summarise the status of the discussions of the members of the association on the principles and methods of approach of mediation. The guidelines are designed to be developed. The association found, however, that the publication of the current state of development is necessary, in order to give an insight into which standards and views the members of the BAFM represent.
The guidelines are primarily aimed at members of the psycho-social professions and at solicitors, who are involved with family conflicts, crises and problems and in particular with the consequences of separation and divorce. The principles set down in the guidelines be considered in the services and professional regulations and codes of practice.
II. Aims, Content and Principles:
Family mediation has the task of achieving a self-determinant and unanimous settlement of psychosocial and legal problems, particularly in the case of separation and divorce. It promotes autonomy, especially the ability of those involved to take part in dialogue, show co-operation and adapt.
The aim is a unanimous, binding settlement up to an extensive, effective agreement within the letter of the law.
Family mediation concerns the settlement of family conflicts in marital, extramarital and post-marital relationships, for which impartial solutions are sought. The content is determined by the families involved. Separation and divorce mediation primarily concerns itself with the arrangement of the consequences arising from separation and divorce, in particular with respect to parenthood and other family relationships, apportionment of the family income, disputes about wealth, provisions for old age, division of the domestic property and clarification of the accommodation arrangements.
Mediation is a process, which orientates itself on the following fundamental principles:
The mediation process is voluntary. Voluntariness sets the precondition, that the partners are not limited in their self determination and that the mediator is not subjected to any instructions by the boundaries set down by the contents of the mediation contract. The process can be stopped at any time by any of the participants, including the mediator.
Mediation requires that the mediator has a neutral, all-party attitude to both partners. The mediator supports the partners in reaching an agreement which is fair in its result, mutually satisfying, fair to all interested parties and is achieved through a fair process.
(3) Self responsibility.
The partners safeguard their own interests and needs in the mediation process and safeguard them reasonably.
A self-determinant decision by the partners is only possible on the basis of their own factual informedness. Each partner must have sufficient opportunity to recognise and to weigh-up the significance of all information which is important for decision making, so that each is fully aware of the consequences of the decision.
This requires that both partners are prepared to disclose all of the essential data and relevant facts.
Especially in the case of separation and divorce, each partner each partner must inform themselves of their legal rights and obligations and, in as far as under aged children are affected, must consider the effects of the decision on the children.
The mediation process is confidential. All participants commit themselves, within the scope of the legal possibilities, not to pass on any information and knowledge received during the process, without the express agreement of all of the participants. The agreement is presumed given in the case of consultation of solicitors and experts within the framework of the mediation process and in the case of supervision.
III. Personal Conditions and Duties of the Participants in the Mediation process.
In addition to the duties described in section II 3 (2), the mediator is also responsible for the design (structuring) of the mediation process, the observance of the principals as well as the creation of suitable framework conditions. This requires knowledge and consideration of psychological, family dynamic and legal aspects.
If the mediator is so closely tied to one of the sides, due to a family, institutional or other form of social relationship, that the side could question their impartiality, or if the mediator could pursue a private interest in the mediation, then he/she is unsuited as a mediator. The same is true, if the mediator has previously given one of the partners legal advice, or has represented them, or has stood in a therapeutic relationship to one of the partners. If the advice, representation or therapy related to both partners, the mediation process may only commence, if the role of the mediator is clarified with respect to the previous situation and if all participants have unanimously and specifically chosen mediation.
The mediator shall not pass on any information in the judiciary process. He / She shall not make themselves available as a witness, representative of a solicitor or consultant expert. They must inform the participants of this fact.
The partners require a minimum of willingness to discuss and reach agreement, as well as the ability of to stand up for themselves and their own interests.
Possible limits to the mediation can e.g. lie in severe psychic disorders or family violence. Furthermore, it can be, that during the process of the mediation it becomes obvious that an independent, joint settlement is not possible. In these cases, the mediator refers the partners to appropriate specialists.
3. Children and juveniles.
The interests and needs of children and juveniles have a special importance in the mediation process.
The mediator is responsible for ensuring that children are protected as far as is possible. There are different forms of the presence and personal participation of children and juveniles in the mediation process.
Depending upon their age, they should be given the opportunity of participating in the process. However, the responsibility for the decision remains with the parents.
It is important for the children and juveniles, that their parents practice, examine and further develop co-operative modes of behaviour during the mediation.
IV. The Importance of the Law, Psychology and the Social Sciences in the Mediation.
1. The importance of the law.
In as far as the mediation process, as is the case with separation and divorce mediation, aims for a legally binding agreement, knowledge of the law is an imperative prerequisite.. Furthermore, the partners can use the primarily optional law legislatively, in order to be able to find fair agreements on their specific interests and needs.
Law particularly serves:
- The activation of the individual interests
- The control of fairness
- The determination of the permissible limits to the agreement
- In exhausting the legal possibilities to the advantage of all of the family members
- In designing the agreement through a differentiated utilisation of the legal forms and typical contractual agreements.
2. Importance of psychology and of the social sciences.
The practice of mediation requires the observation and consideration of separation and family dynamic processes, as well as a solid basic knowledge of the social and psychic conditions of conflict situations.
In addition, knowledge of the psychological and social sciences approaches, methods and mechanisms, are prerequisites for a properly guided discussion and negotiation.
This fundamental knowledge is the basis for the responsible evaluation of the possibilities and limits of mediation, the reflected handling of the role, as well as ones own behaviour as a mediator.
The psychological and social sciences knowledge, abilities and proficiencies should especially be used too, for the promotion of the psychic, social and health welfare of the children and juveniles.
V. The Concurrence of the Disciplines in the Mediation process.
Knowledge of, and information about, the respective professional competencies and their limitations, as well as the indications and referral possibilities are prerequisites for a useful concurrence of the disciplines.
1. The advisory solicitor
If, under the legal advice law, the mediator is not authorised to give legal advice themselves, then the advice is to be given by the solicitors of the parties in due time. Even solicitor-mediators work under the premise, that the agreement is only binding after the parties have been legally advised. The advice should be aimed at the logic of the mediation process.
The advising solicitor of a party, contrary to the solicitor-mediator, not forbidden to represent their party at the bar, for example in subsequent divorce proceedings.
2. Psycho-social advisor
In the case of psychic problems which significantly hinder the mediation process, the mediator recommends additional psychological help. This is also true in the case of complicated constellations with children and juveniles.
The psycho-social advisor is not available as an expert consultant in judicial proceedings.
3. Working together in a professional network.
The mediator belongs to a network and promotes the interaction between the participating professions in their region. Care must be taken here, that in individual cases, the principles of data protection and confidentiality remain guaranteed.
VI. Form, Procedure and Prerequisites of Mediation.
At the beginning of the mediation process, the mediator explains the differences and similarities between mediation and other forms of conflict settlement, he/she informs about the advantages and disadvantages of mediation and the appropriate alternatives, as well as the opportunities and risks. The mediator explains the den procedure, the costs and the indispensible prerequisites of mediation as arise from the guidelines. The principles for the subsequent mediation process produced together with the participants ( mediation contract ) should be recorded in writing.
The mediator supports the parties, on the basis of their different viewpoints, in understanding better their own needs and interests and those of the other partner.
He/ She helps the partners to develop a mutually fair settlement by their mediation of the discussions and negotiations.
Reference points and exemplary methods.
- concrete, personal, professional and economic interests in the future
- elements of history of relationships
- the legal provisions, or rather the principles on which they are based
- as well as prior agreements.
Special importance is given to the mutual acceptance of different interests and perspectives of life of the participants and of the children, which are then linked together relative to each other and under each other.
The result of the mediation is usually recorded in writing. At the request of the partners, a juridicially founded agreement can be put together by the solicitor-mediator, the advisory solicitor or public legal, information and arbitrary bodies.
Due to the close actual and legal linkage, care is to be taken, that each partial result is checked with respect to its consequences for all other settlement areas. If an agreement between the parties is only reached for a partial area, or an agreement is not at all possible, then the mediator discusses the further procedures with the partners.