CM/AS(2004)Rec1639 final ... Family mediation and equality of sexes Parliamentary Assembly Recommendation 1639 (2003)

Ministers’ Deputies

CM Documents

CM/AS(2004)Rec1639-final 21 june 2004

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Family mediation and equality of sexes -

Parliamentary Assembly Recommendation 1639 (2003)

(Reply adopted by the Committee of Ministers on 16 June 2004 at the 888th meeting of the Ministers’ Deputies)

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1. The Committee of Ministers welcomes Parliamentary Assembly Recommendation 1639 (2003) on family mediation and equality of sexes, which it has brought to the attention of the governments of the member states. In particular, it welcomes the initiative of the Parliamentary Assembly to recommend the Council of Europe member and Observer states to implement the principles for the promotion and use of family mediation as laid out in Recommendation No. R (98) 1. The Committee of Ministers has received comments on the Assembly Recommendation from the European Committee on Legal Co-operation (CDCJ) and the Steering Committee on Equality between Women and Men (CDEG) (see Appendices I and II).

2. The Committee of Ministers shares the view of the Assembly that the independence and impartiality of the mediator shall be encouraged, which is entirely in conformity with paragraph 10 and Principles III and V of Recommendation No. R (98) 1. It also agrees that family mediation is a valuable alternative means of solving family disputes in certain circumstances. However, as the Assembly has underlined, it is not the only means for solving all family disputes and should not be an obstacle for the individual’s right of access to the ordinary justice system.

3. The Committee of Ministers welcomes the proposal of the Parliamentary Assembly to guarantee gender equality during family mediation processes. In the light of the Parliamentary Assembly’s wish to ensure that there is no power imbalance between the parties in family mediation, it recalls that Recommendation No. R (98) 1, under its Principle III (ix), provides that “the mediator should pay particular regard to whether violence has occurred in the past or may occur in the future between the parties and the effect this may have on the parties' bargaining positions, and should consider whether in these circumstances the mediation process is appropriate”. In this way, the Recommendation takes into account the power imbalances that may exist between parties. As has been underlined by the CDEG, issues concerning violence in couples or families could constitute criminal offences and in these circumstances the use of the mediation process may not be appropriate.

4. The Committee of Ministers also supports the Parliamentary Assembly in underlining the importance of taking into account the views of children, considered by internal law as having sufficient understanding, in family mediation on issues affecting them. In this respect, the CDCJ emphasised that greater use should be made of existing texts such as the European Convention on the Exercise of Children’s Rights (CETS No. 160), in particular its Article 13 which concerns mediation or other processes to resolve disputes. It is also recalled that Recommendation No. R (98) 1 in its Principle III (viii) sets out that: “the mediator should have a special concern for the welfare and best interests of the children, should encourage parents to focus on the needs of children and should remind parents of their prime responsibility relating to the welfare of their children and the need for them to inform and consult their children”.

5. The Committee of Ministers underlines that Recommendation No. R (98) 1 recommends that governments of member states “take or reinforce all measures they consider necessary with a view to the implementation of the following principles for the promotion and use of family mediation as an appropriate mean of resolving family disputes”. It recalls that the Recommendation was adopted only six years ago and considers that before embarking on its revision, as recommended by the Assembly, attention needs to be focused on the implementation and further dissemination of this legal instrument in member states.

Appendix I to reply

Opinion of the Bureau of the Steering Committee on Equality between Women and Men (CDEG) on Parliamentary Assembly Recommendation 1639 (2003) on family mediation and equality of sexes

The Bureau of the CDEG took note that the Ministers’ Deputies decided at their 865^th meeting on 10 December 2003 to communicate to the Steering Committee on Equality between Women and Men (CDEG) Parliamentary Assembly Recommendation 1639(2003) on family mediation and gender equality for information and possible comments by 30 April 2004. The Bureau noted that the next meeting of the CDEG would not take place until June 2004 and therefore prepared the following comments to be sent to the Committee of Ministers.

The Bureau of the CDEG welcomed the proposal of the Parliamentary Assembly aimed at promoting family mediation as an appropriate means of resolving family disputes as well as the proposal related to the implementation of the principles laid down in Recommendation No. R(98)1 of the Committee of Ministers on family mediation.

The Bureau of the CDEG also welcomed the proposal of the Parliamentary Assembly to guarantee gender equality during the family mediation processes.

The Bureau of the CDEG considered that it would not be advisable to revise the guidelines set out in Recommendation No. R(98)1 as suggested by the Parliamentary Assembly. In this respect, the Bureau of the CDEG pointed out that Recommendation No. R(98)1 had been used and continued to be used by member States as a useful tool to draft or revise national legislation aimed at introducing or promoting family mediation.

The Bureau of the CDEG considered that issues concerning violence in couples or families should not be dealt in the mediation process as they could constitute criminal offences and in these circumstances the use of the mediation process would not be the most appropriate way of resolving family disputes as stated under item III. IX of Recommendation No. R(98)1.

The Bureau of the CDEG also considered that family mediation should not be included in the legal aid system as proposed by the Parliamentary Assembly because there were legal and conceptual problems as family mediation is, by definition, a way of resolving family disputes in a consensual manner and therefore legal representation should not needed.

As regards the need to hear children’s views and guarantee their rights, the Bureau of the CDEG recalled the existing Council of Europe Convention on the Exercise of Children’s Rights and in particular its Article 13 which concerns mediation or other processes to resolve disputes.

Finally, the Bureau of the CDEG underlined that Recommendation No. R(98)1 recommends that governments of member States “take or reinforce all measures they consider necessary with a view to the implementation of the following principles for the promotion and use of family mediation as an appropriate mean of resolving family disputes”.

The Bureau of the CDEG therefore considered that, before embarking on the revision of Recommendation No. R(98)1, attention needed to be focused on strengthening implementation and further dissemination of this international legal instrument in member States.

Appendix II to reply

Opinion of the Bureau of the European Committee on Legal Co-operation (CDCJ) on Parliamentary Assembly Recommendation 1639 (2003) on family mediation and equality of sexes

Following the adoption by the Parliamentary Assembly of Recommendation 1639 (2003) on family mediation and gender equality (see Appendix 1 to this document), the CDCJ has been invited by the Committee of Ministers to draft an opinion on this text by 30 April 2004 (see Appendix 2 to this document). In the light of this time‑limit, the CDCJ Bureau decided to finalise an opinion on this issue.

The Bureau took note of the Recommendation adopted by the Standing Committee acting on behalf of the Parliamentary Assembly and welcomed the initiative of the Parliamentary Assembly to recommend the implementation by Council of Europe and Observer states of the principles for the promotion and use of family mediation as laid out in Recommendation No. R (98) 1 of the Committee of Ministers on family mediation and to introduce or strengthen measures contained therein.

The Bureau fully supported the Parliamentary Assembly in encouraging the independence and impartiality of the mediator, which is entirely in conformity with paragraph 10 and Principles III and V of Recommendation No. R (98) 1 and in emphasizing that family mediation is a valued alternative family dispute resolution, taking into account that it is not the only means for solving all family problems nor should it become “poor man’s justice” for family disputes.

In the light of the Parliamentary Assembly’s wish to ensure that there is no power imbalance between the parties in family mediation, the Bureau noted that Recommendation No. R (98) 1, under its Principle III (ix), provides that “the mediator should pay particular regard to whether violence has occurred in the past or may occur in the future between the parties and the effect this may have on the parties' bargaining positions, and should consider whether in these circumstances the mediation process is appropriate”. In this way, the Recommendation takes into account the power imbalances that may exist between parties.

The Bureau also supported the Parliamentary Assembly in underlining the importance of taking into account the views of the child in family mediation on issues affecting the child. In this respect, the Bureau emphasised the importance of making greater use of existing texts such as the European Convention on the Exercise of Children’s Rights (ETS 160) and Recommendation No. R (98) 1. The latter sets out in its Principle III (viii) that: “the mediator should have a special concern for the welfare and best interests of the children, should encourage parents to focus on the needs of children and should remind parents of their prime responsibility relating to the welfare of their children and the need for them to inform and consult their children”.

Finally, the CDCJ Bureau notes that the Parliamentary Assembly has requested the Committee of Ministers to consider revising the guidelines set out in Recommendation No. R (98) 1 in order to reflect the concerns and solutions suggested in its Recommendation 1639 (2003) and those arising from the need to hear children’s views and guarantee their rights. However, in the light of the above and taking into account that Recommendation No. R (98) 1 has been adopted only five years ago, the Bureau finds it premature to reconsider this Recommendation at this stage, but would rather suggest to target the efforts of the Council of Europe on its wider implementation.