FAMILY
MEDIATION –
equality of the
parties
Assoc. Prof.
Renata Mieńkowska-Norkienė
Mykolas Romeris University/
University of Warsaw
International conference
23rd November, 2012
Lithuanian Seimas
THE TOPIC:
 Šalių
lygybė šeimos mediacijoje standartai bei rekomendacijos Lietuvai
 Equality
of the parties in family mediation
– standards and reccommendations for
Lithuania
1. Parties
2. Dependent on each other
Potential
conflict;
structural level
3. Understanding that they cannot realize
some plans, use some resources because
of the other party
Hidden conflict;
psychological
level
4. Acting to change their situation
Revealed
conflict;
behavioral level
Marriage and family –
perfect environment for potential conflicts
THESIS OF THE SPEECH:
 Family
mediation has a big potential in
Lithuania, however, it will not properly develop
without strong legal support and high-level
standards for mediators
 It
is important that, while strengthening family
mediation in Lithuania, mediators are required
to have undergone psychological and legal
trainings to:
a/ recognize and fight with inequalities in mediation
b/ properly secure children’s welfare
LITIGATION VS. FAMILY MEDIATION
 Litigation
bases on adversarial principle and,
very often, on proving one of the party’s fault
 Lithuanian
society is lacking trust in institutions
of the legal system (dissatisfaction with these
institutions and their activities)
 Family
mediation is one of the least intrusive
interventions into a family dispute
FAMILY MEDIATION-advantages
Council of Europe:
“mediation eliminates causes of conflicts arising in families,
helps to improve communication between family
members and significantly reduces negative
consequences of breaking family ties”

(Recommendation No. R 98)
European Union:
“agreements resulting from mediation are more likely to
be complied with voluntarily and are more likely to
preserve an amicable and sustainable relationship
between the parties. These benefits become even more
pronounced in situations displaying cross-border elements”

(Directive 2008/52/EC 2008)
FAMILY MEDIATION-fears

Rather big acceptance for conflicts in Lithuanian society in
general, resulting from long communist experience under
soviet authority

Fear that confidentiality, impartiality and neutrality will not be
secured

General lack of awareness and information about mediation

Fear of lawyers that they would lose their clients or even their
jobs because of mediators

Fear that mediation will not secure equality between
divorcing spouses to the extent the court procedure does
FAMILY MEDIATION-challenges

Support the parties in conducting rational and future-oriented
negotiations but also in emotional relief

Protection of interests of the conflict parties, support of weaker
parties, encouraging parties to look for various solutions to
their dispute

Protection of children’ rights, drawing parents’ attention
towards situation of their children in their conflict

Providing the parties with information about possibility to
address their problems to other professionals
A BIT OF STATISTICS:
30000
25000
20000
Number of marriages
15000
Number of divorces
10000
5000
0
1995
2000
2005
2008
2010
A BIT OF STATISTICS:
In Lithuania
Were born
Died
Got married
Got divorced
Imigrated
Emigrated
2005
2006
2007
2008
2009
2010
84
86
89
96
100
98
120
123
125
120
115
115
55
58
63
66
56
51
30
31
31
28
25
27
19
21
24
25
18
14
43
35
38
47
60
228
REASONS FOR
INEQUALITY IN FAMILY MEDIATION
 „women
are less powerful than men in this
society (...) women are economically
dependent on the men in their families, both
during childbearing years and when they are in
the work force earning only three-fifths of what
their male counterparts can”
(Lefcourt 1984, Rosenberg 1991)
REASONS FOR
INEQUALITY IN FAMILY MEDIATION
 „The
fact that women are more risk averse than
men may strongly endanger fairness and equity
of decisions taken by conflicting spouses (...)
women’s risk aversion may lead to accepting
unwanted conditions of final agreement if there
is a risk of upsetting the husband and
experiencing his aggressive reaction after failed
mediation”
(Cochran 1985, Brinig 1995)
REASONS FOR
INEQUALITY IN FAMILY MEDIATION
 Women’s
altruism
 As
more “soft” and “caring” women may more
often become victims of “tough” and “requiring”
men used to generosity of women towards them
 To
keep good relations with their spouses women
might devote more than men
PROBLEMS OF FAMILY MEDIATION
 In
Lithuania attorneys profit from spending hours
on implementing strategy of fighting for their
clients’ victory in the court
(they are paid usually for the time spent on the case and for
visits in the court)
 Therefore
they are not particularly interested in
quick achievement of divorce agreement
A MEDIATOR’S ROLE
 Clear
facilitative mediation in a divorce case
when one of the parties is visibly vulnerable and
scared, there is a threat that the weaker party
will not defend her or his interests
 Fully
evaluative or direct mediation may cause
certain psychological discomfort of the parties
and lead to breaking good future-oriented
relations despite achieving formal agreement
between the spouses
A MEDIATOR’S ROLE
 Knowledge
and specific psychological skills to
recognize domestic violence
 Use
of caucuses, empowerment and BATNA
 Proper
children’s involvement in mediation
 Cooperation
services
of mediators with childcare
 Trainings,
trainings, trainings... Practice, practice,
practice...
(to provide high quality of mediators’ work)
RAISING TRUST IN MEDIATION – HOW?
 Assurance
of high quality of mediators’ work
 Providing
information about mediation and its
advantages in the society
 Elimination
of myths connected to mediation
 Underlining
mediation advantages for judges, the
whole legal system, the society
 Providing
access to family mediation before
spouses go to advocates