family law practice & mediation

FAMILY LAW PRACTICEand

MEDIATION

By Tong Soo Tim

Is Family Law LITIGATION PRACTICE?

Parties do need to get Court Orders called Decree Nisi, and Decree Absolute to get

Divorced.

There are Interim Custody applications, Maintenance Orders, Variation Orders,

Appeals….

Family Law is often placed under Civil Litigation Department

BUT

FAMILY LAW INVOLVES MUCH MORE

SO…

Is Family Law PracticeCOUNSELLING?

Your clients comes to your office and :

• keeps saying, “I don’t know what to do.”• wants to fight the case in court one day, wants to

“give him/her another chance” another day• asks you, “How will this affect my children?”• CRIES!!!

Is Family Law PracticeSOCIAL WORK?

Clients come to you because : their friends and family are already fed-up with

their complaints about their spousethey feel very unhappy and discontented with life

and wonder if their marriage was a mistakethey are often in disagreements with their spouse

and in one of the recent arguments the word “divorce” was uttered


Clients come to you asking for help regarding :

spouses who spend more time with their friends and even opposite-sex colleagues than at home

spouses who don’t give them enough money to buy necessities to send children to school


Clients come to you asking for help regarding :

spouses who have just moved out of the home without any explanation

clients who come with bruises, or who are obviously depressed and distraught

Is Family Law CRIMINAL LAW PRACTICE?

DOMESTIC VIOLENCE ACT!!!

Make police report! Help your client to get evidence of physical abuse, or being put in

fear of being abused….

Maybe someone else is asking you what to do when their friend is being locked up in the

house and can’t leave the house to seek legal advice….

Is Family Law CRIMINAL LAW PRACTICE?

PENAL CODE!!!Arson.

Causing bodily harm.Murder.

Some newspaper HEADLINES

• Man burns flat over custody of kids (The Strait Times/Asia News Network, Singapore, 25th Dec 2001)

• Unemployed man and young son in death plunge (The Star 15th Feb 2001)

• Dad and kids found dead : Dead man said to be upset over divorce (The Star 24th July 2008)

Some newspaper HEADLINES

• Scarred by fury a woman : I knew my ex-wife would not leave me alone, says acid attack victim (The Star, 19th August 2009)

• Father kills kids, hangs himself over custody rights (Hong Kong - The Star 22nd Jan 2002)

• Dad kills kids : Man strangles daughters and son, then hangs himself (The Star 31st July 2004)

FAMILY LAW PRACTICE

COMPLEX

EMOTIONAL

TIME-CONSUMING

MEANINGFUL AND SATISFYING

FAMILY LAW PRACTICE

• to viewed SERIOUSLY

• to be handled SENSITIVELY

• to be done COMPETENTLY

• to be considered a SPECIALIST AREA of law practice, like Maritime Law, Capital Offences Criminal Law ETC.

FAMILY LAW PRACTICE

IN THE MIDST OF

MEDIATION MOVEMENT

AROUND THE WORLD

PRACTICE DIRECTIONNo. 5 of 2010

Matrimonial dispute is one of the 6 broad categories of cases

that are deemed suitable for resolution by mediation.


The objective of this practice direction is to encourage parties to arrive at an amicable settlement

without going through or completing a trial or appeal.

The benefit of settlement by way of mediation is that it is accepted by the parties, expeditious

and it is final.


Advocates and Solicitors shall cooperate

and assist their clients in resolving the dispute in a

conciliatory and amicable manner.

Some pointers when handling family law in a mediation context may be taken from the experiences of other jurisdictions like in

USA, UK, AUSTRALIA,

NEW ZEALAND, SINGAPORE.

American Academy of Family Lawyers – Bounds of Advocacy

To encourage the study, improve the practice, elevate the standards and advance the cause of matrimonial

law, to the end that the

welfare of the family

and society be preserved.


Few human problems are as

emotional, complicated

or seem so important as those problems people bring to matrimonial lawyers…

Family law disputes occur in a

volatile and emotional atmosphere.


As a counsellor, a problem solving lawyer

encourages problem solving in the client. Effective advocacy -

considering with the client what is in his/her best interest and determining the most effective means to achieve

that result.


The client’s best interests include the

well-being of children, family peace,

and economic stability.


A family lawyer must

competently represent the interest of his/her client

(the parent), but

should not do so at the

expense of the children.


All professionals involved in family law litigation should become

sufficiently educated in the interdisciplinary aspects of their work to function effectively

in collaborative problem-solving.

RESOLUTION (first for family law (UK))

Resolution…Is an organisation of 5700 lawyers who believe in a

constructive, non-confrontational approach

to family law matters. Resolution also campaigns for

improvements to the family justice system.

RESOLUTION (first for family law (UK))

Resolution supports the development of family lawyers

through…training programmes, publications and good practice

guides…. Resolution also

trains accredits mediators.

RESOLUTION

Members of Resolution are required to:• Conduct matters in a constructive and

non-confrontational way • Avoid use of inflammatory language both

written and spoken • Retain professional objectivity and respect

for everyone involved

RESOLUTION

• Members of Resolution are required to:

• Take into account the long term consequences of actions and communications as well as the short term implications

• Encourage clients to put the best interests of the children first

RESOLUTION


• Emphasise to clients the importance of being open and honest in all dealings

• Make clients aware of the benefits of behaving in a civilised way

• Keep financial and children issues separate.

RESOLUTION


• Ensure that consideration is given to balancing the benefits of any steps against the likely costs – financial or emotional

• Inform clients of the options e.g. counselling, family therapy, round table negotiations, mediation, collaborative law and court proceedings

AUSTRALIAN FAMILY DISPUTE RESOLUTION

FDR is the legal term for services (such as mediation) that help couples affected by separation and divorce to sort out family

disputes.

FDR can help you to agree on a range of issues relating to property, money, and

most importantly – your children.


FDR services are provided by…Family Relationship Centres, community

organisations, legal aid commissions, and individuals such as

lawyers, social workers or psychologists.


You can only apply to a

family law court for a parenting order when you have a certificate from an

accredited FDR practitioner which states that you have made a genuine effort.


Even if you can’t reach agreement, FDR may help you and your

former spouse or partner communicate better.

NEW ZEALANDFAMILY COURT

The Family Court aims, wherever possible, to help people sort out their own problems

by way of

counselling, conciliation and mediation.

- Ministry of Justice, New Zealand website


Principal Family Court Judge Peter Boshier in Feb 2011 while addressing the

Arbitrators and Mediators Institute of New Zealand made the following points about

Family matters :


• Established in 1981

• Judge-led mediation

• Reviewed in 2003 - there are criticisms of judge-led mediation and that mediation should be by fully-trained and accredited mediators


• Studies shown that average successful mediation took 3-4 hours (89% completed)

• 59% of mediated cases arrived at full-terms settlements

• 27% arrived at partial settlements

SINGAPORE FAMILY COURT AND FAMILY

RESOLUTION CHAMBERS

Presented by District Judge Kevin Ng

at the 2nd Asian Mediation Association Conference in Kuala Lumpur

– February 2011

SINGAPORE F C & F R C

Recognising that matrimonial and family disputes are complex, and often not

resolved by simply determining the legal issues, the Family Court established the Family Resolution Chambers in 2006.

Note : Family Court established in 1996


Judge-Mediators or Resolution Judges work with officers of Family Court’s Counselling

and Psychological Services in the FRC.

A Resolution Conference - done by a Resolution Judge alone if it is legal or

financial issues at stake, but where children issues are involved, it may be co-mediated

with a CAPS officer.


Judge-Mediators and other mediators are bound by Subordinate Court Code of Ethics for Mediators and Family Resolution Chambers

Code of Ethics. IMPARTIALITY,

CONFIDENTIALITY, CONSENT OF PARTIES,

PROMPTNESS

Hong Kong Family Law Association

• It is essential to emphasise to the client that the role of the solicitor is to advise and the role of the client to make decisions based on that advice. The Code does not compel a client to accept advice to settle a case where the client does not wish to do so. However, where a client does not wish to settle, it is essential that the costs involved in that decision are fully explained to the client.

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