Mediation and the law

By
January 28, 2016 13:07

The advantages of mediation are manifest.




Divorce

Divorce. (photo credit:INGIMAGE)

A law has been passed in Israel that will come into force in July. It requires couples to try mediation before they can obtain their divorce through the courts. The idea of trying mediation before litigation is already widely championed by all those in the legal arena, even the most hardened litigators are not often adverse to the option.

So, for the uninitiated, what exactly is it? Mediation is a form of resolving disputes by using a neutral third party to try to help the parties to come to a resolution, which has to be voluntarily agreed upon. Within this wide definition there are many forms.

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Some mediators are more proactive suggesting solutions, while others will take a more neutral stance and see their role as trying to clarify the issues so that the participants can come up with the solutions themselves.

The advantages of mediation are manifest.

The proceedings are confidential and no decisions are made without each party’s agreement. This circumvents the notorious lack of certainty that dogs the Israeli justice system, where a judge has wide discretion to decide a case based on his or her interpretation of what the law says. Making a decision that is agreed upon by all parties allows them to come up with more creative and workable solutions. This is especially true in family mediation. Another advantage is the lack of formality that enables the litigants to air their grievances and views without being hampered by the procedural rules of the courts, allowing for emotions to be expressed that would not have a place in a court of law. Finally, the savings in time and money are a tangible reason why people are prepared to try mediation first.

The position prior to the new law meant that couples who wanted to could go to mediation, and if they came to an agreement, could take it to court. The court would then seal the agreement and apply it as a court order. If the couple agreed, they could chose to go to a private independent mediator or to go to one of the mediation centers connected to the courts. In cases where a couple did not want to try mediation, a divorce application could be filed by either party at the beit din (religious court) or at the family civil court. Whichever was received first would decide which court held the jurisdiction on the case.

As a side point, only the beit din can grant a divorce to a Jewish couple, but all ancillary matters such as child support payments and division of property can be decided in either court. This often leads to a “race” between the couple to the court they deem would be more favorable to their position. The race means that couples who were contemplating divorce were “pushed” to file quickly so as not to lose out to their spouse, thereby escalating the chances of a litigious divorce rather than a less acrimonious mediated one.

The law was brought to the Knesset with all the above reasoning in mind. It stipulates that, prior to filing for a divorce, a preliminary application must be made. Once it is received, the couple is asked to take part in a procedure that does not include the lengthy petition usually accompanying divorce cases. It costs approximately NIS 500, and takes place over a minimum of two to four meetings.

During those meetings, the mediation process is explained, information about the divorce procedures are provided and progress is attempted to be made as to how to resolve the conflict without resorting to the court. They take place at centers that are mainly staffed by social workers.

During these sessions the social workers highly recommend mediation or other forms of dispute resolution that do not include going to court. The parties have 60 days or, in more complicated cases, 90 days, to produce an agreement as to how they will proceed. After this time frame the adviser can recommend that the couple be referred back to court or that they pursue alternative methods (predominantly mediation or other forms of alternative dispute resolution).

So, on the face of it, the law seems to tick all the boxes. Encouraging divorcing couples to try to settle amicably and avoid the huge costs involved in employing lawyers and paying court fees looks only to have upsides. But the reality is slightly more complicated. One of the key components of mediation is its voluntariness. The new law, by barring those who want a divorce from applying directly to court, are effectively compelling them, going against the heart of what makes a mediation successful.

Proponents of the new law say that the compulsory meetings are more information giving than mediatory and are more about encouraging the couples to mediate.

Another drawback is that it has an effect on the basic right to apply to court for a divorce. The ramifications of delay can be that no interim order for maintenance (including child support) would be made for a period of up to 90 days, which could cause significant hardship. There is a loophole for those in dire need, such as domestic violence or restraining orders, but it is yet to be seen how these will be implemented.

The preliminary application still does not eliminate the “race” to the courts, as wherever it is filed, that court has jurisdiction if no settlement is reached. The race is somewhat ameliorated by the fact that within the compulsory period couples can reduce escalation of the conflict and settle matters between themselves through mediation.

One point of contention that has received a lot of attention is the implementation of the legislation. The mediation centers, as currently set up are not staffed to absorb such an increased case load. The question remains of where the budget will come from, in which to allot to the centers to recruit trained social workers. There is also the question of whether social workers with a minimum amount of training are actually qualified to begin to mediate such cases.

The law has had a bumpy ride. Originally due to be implemented earlier in 2015, it was delayed until January 2016 and again until July 2016. The reasons given have been that further time was needed for training the social workers and setting up adequate provisions for the mediation, although many speculate that opposition to the law has been behind the delay. It is yet to be seen whether July 2016 will hold.

Despite the many criticisms of the bill, it has been hailed as a major victory in the arena of family law that has been a long time coming. On either side of the debate there are passionate arguments, but all agree that an attempt to bring couples to avoid the many pitfalls of litigation including escalation of conflict and costs has to be applauded. It is yet to be seen whether, in practice, the law will truly bring about the changes envisaged by its creators.

The writer qualified as a lawyer in the UK and then retrained as a licensed mediator both in England and in Israel. She currently resides in Jerusalem, where she runs Mediation In Israel, a mediation practice specializing in mediation for English-speakers.

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