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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
Is Family Law PracticeSOCIAL WORK?
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
Is Family Law PracticeSOCIAL WORK?
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.
PRACTICE DIRECTIONNo. 5 of 2010
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.
PRACTICE DIRECTIONNo. 5 of 2010
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.
American Academy of Family Lawyers – Bounds of Advocacy
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.
American Academy of Family Lawyers – Bounds of Advocacy
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.
American Academy of Family Lawyers – Bounds of Advocacy
The client’s best interests include the
well-being of children, family peace,
and economic stability.
American Academy of Family Lawyers – Bounds of Advocacy
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.
American Academy of Family Lawyers – Bounds of Advocacy
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
• Members of Resolution are required to:
• 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
• Members of Resolution are required to:
• 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.
AUSTRALIAN FAMILY DISPUTE RESOLUTION
FDR services are provided by…Family Relationship Centres, community
organisations, legal aid commissions, and individuals such as
lawyers, social workers or psychologists.
AUSTRALIAN FAMILY DISPUTE RESOLUTION
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.
AUSTRALIAN FAMILY DISPUTE RESOLUTION
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
NEW ZEALANDFAMILY COURT
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 :
NEW ZEALANDFAMILY COURT
• 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
NEW ZEALANDFAMILY COURT
• 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
SINGAPORE F C & F R C
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.
SINGAPORE F C & F R C
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.