FLP 7 - Family Mediation PDF

Takeaways Part 10 of the Women\'s Charter covers mediation, counseling, and family support programs in the courts. Mandatory attendance is required for divorcing parents, and the court may also advise other parties to attend. Non-compliance with mediation or counseling may result in consequences...

Takeaways Part 10 of the Women\'s Charter covers mediation, counseling, and family support programs in the courts. Mandatory attendance is required for divorcing parents, and the court may also advise other parties to attend. Non-compliance with mediation or counseling may result in consequences such as staying proceedings or paying costs. Lawyers play a crucial role in preparing clients for mediation and advising on available dispute resolution options. Mediation offers advantages such as non-adversarial resolution, parties taking ownership, time and cost savings, and avoiding emotional trauma. Therapeutic justice can be implemented when the entire family justice ecosystem is coherent. Andrew Yip (00:15.5) Okay, good morning, everyone. Now you can chill a little bit, hang loose. My segment is actually the less heavy, the two. Now I\'m going to start with my slides. And what I\'m dealing with is basically mediation, counseling, and family support programs in the courts. There is, you will see that there has been a recent amendment. and that\'s called part 10 of the Women\'s Charter. So that\'s what I\'m going to be covering. That would be my first slide. That\'s right. Yeah. And now on the second slide. So this is part 10. And before I go into the third slide, which goes into the content of part 10, I\'m going to explain something, and that is There was a question on pre -read parenting program. So part 10 is post -read. That means after the matter starts in court. After read has been filed, this is processed in court. The pre -read parenting program is provided for under section 94A of the Women\'s Charter. But today, I\'m going to do part 10, which is section 139. So let\'s get to it. Now, section 139. actually replaces the old Section 50 of the Women\'s Charter which talks about mandatory mediation and counselling in court for divorcing parents. So this is actually an extension of that Section 50. And what it starts off with is for the court to consider the possibility of reconciliation in 139F as you can And what the court has to have regard to is the nature of the case, the evidence and parties\' attitude. And you might be wondering why. So for example, if we have a spouse who has been living off the other spouse sitting on the couch watching football or K -drama or what have you and not look after the children, not spend money. And so the other spouse, they decided they\'d have enough. They want to file for divorce, but the other spouse says, no, I love the spouse. I love you very much and I don\'t want a divorce. And so obviously the court will\... Andrew Yip (02:25.688) think about whether there\'s real possibility of reconciliation and have regard to the nature, evidence, and party\'s attitude. And I think in the example I just gave, unlikely that the court will put in a lot of resource to talk about reconciliation, right, in that case. So if I can, in the next slide, what the courts can do in a maybe a real, genuine situation of possible reconciliation is to adjourn the proceedings, interview the parties, if they consent. nominate a conciliation officer or a civil person to assist the parties or advise parties to attend a family support program, which usually would be run by external agencies under the Ministry of Social Family Development. Okay, now let me move on to section 139i. Now these are proceedings brought under part 10, which is your divorce, nullity and judicial separation parts of the Women\'s Charter. Now this, as you can see, highlighted, this is where your mandatory programs come in because for the bossing parents, it is mandatory for them to attend mediation and counseling. And the court may also advise any of the persons to attend a family support program. It could be the parties attending, the children attending, or any other person falling under prescribed class of persons. And what the Section 139 also provides is that a court may dispense with the above orders if the court considers that mediation or counseling would not be in the interest of parties or their children. For example, if the parties have already done a lot of counseling prior to the filing the writ, or it could be that a lot of trauma has already been inflicted because of family violence, now these are some of the cases where the court may may dispense with apartheid attending mediation and counseling. OK, next slide. Now, what\'s the possible consequences of not heeding the court\'s advice or order? Well, what that court may do is stay proceedings. And that\'s really good, right? Especially for a party who wants to get a divorce tomorrow, then that would be a consequence that person doesn\'t want to suffer. Andrew Yip (04:43.22) or the court can order any party responsible for non -compliance to pay cost of the proceedings or make any order as deemed fit see the family court is actually quite powerful. But what you have to note is that the failure to comply with any advice is not content of court. So meaning that you can\'t take out an application for content of court proceedings for any defiance of any advice of the court or court order under this section. OK, next. Now, Section 139j actually covers mediation counseling family support programs in other proceedings, meaning proceedings not covered under Part 10. And the difference really is just the word must and advice. So I\'ve highlighted that for you. The court has discretion to advise parties to attend mediation counseling and family support. The other sections are similar. The consequences are similar. And it\'s also not contempt of court if\... That\'s the failure to comply with the advice. OK, so I\'ve crystallized all that for you. I\'m now going into the process. And this is just for background. It won\'t be tested on process. OK, but I\'m just going to slide through this so that you understand why and what needs to be prepared for mediation at family justice courts. Now, the process goes like this. The point of the session is called the FDR conference. That\'s the launchpad, if you like, of the entire mediation process in the family court. what happened? So therefore, there\'ll be a family conference, FDR conference, there\'ll be counselling that happens on the same day. Lawyers are not involved in the counselling. The parties go there. The reason why A and B are actually on the same day is to help parties not have to go multiple times to court. Of course, nowadays, post -COVID is all on Zoom, so that\'s lot easier, but in the past, it was a physical attendance. And then at C would be the METE session, would be the actromediation session, and sometimes there\'ll be co -mediation, and I\'ll explain later. So the first session of every hour looks like this. It\'s presided by a judge mediator, it\'s attended by clients and the solicitors. There will be a court counsellor that\'s also present. Andrew Yip (07:00.587) And then this is the session where it\'s a triage, if you like. It sets the parameters, issues, the judge mediator be understanding, okay, have parties talked at all, or they have not talked for the last three years? What are the discussions? What have they covered? What are the gaps? What are the issues that needs to be dealt with? So it\'s like a triage and a session. Not substantial, usually not more than half an hour. Next slide. counseling. So immediately after this session, what happens is the counselor will then meet the parties separately on the same day on Zoom currently. And the counselor will then be assessing and will be focusing the discussion only on the child issues, not on the money issues. And there might be follow -up sessions after this. So this is the first intake. More likely than not, the counselor will fix another session. which will take place before the mediation session that has already been fixed. Now, as mediation that follows, what happens is this. If an agreement has already been reached at the counselling sessions about the child, then of course the judge mediator will then need to only focus on the\... next slide, I\'m at the mediation, yes. So at this session, What happens is if the counselling sessions have already helped parties reach a resolution on the child issues, then the judge mediator would only need to focus on the money issues and the asset issues. But if at counselling the counsellor didn\'t manage to help parties reach a settlement on child issues, then the judge mediator will have to do more work. Essentially, we\'ll have to discuss all the issues that are outstanding. Now, next slide. Yes, the co -mediation does not happen all that often because it\'s resource heavy. So this is essentially a session where the judge and the counselor sit together to jointly mediate. And it\'s conducted where there high conflict custody issues or where there\'s complex psychological or relational issues and patterns that are very emotional. So these are the sessions where the judge and the counselor will sit together and mediate the session. Now, at the start of the session, Andrew Yip (09:20.749) This is what the lawyers are expected to do, right? They\'re supposed to give a brief background, what the status is, where the parties are at, and where the gaps are, the areas of dispute or conflict, and what are the parties\' respective positions in respect of each of the issues in dispute. Next slide. And then that\'s when the judge mediator will weigh in and parties will then have a discussion and negotiations happen. And if at the end of the session the parties manage to resolve the matter, the issues are make -able, then the terms can be recorded as a consent order there and then before the judge mediates it. And that actually means for the client that the matter ends. There\'s no need for court hearings after that. So let\'s look at what are the guidelines for successful mediation. But obviously, as the lawyer, you need to prepare your clients well in advance. If you go in like a blank page and you don\'t know anything, it\'s going to be a waste of time for everyone. And the judge mediator will not be very happy. I cannot show you that. So the lawyers will then also have to explain to the client process, the purpose, so the client understands what is going to happen and what\'s happening. Should explore options with the clients, help them understand what the loss is, what are the parameters, what are the reasonable realms. of the outcomes might be. actually, and that\'s important, you have to advise the client to have an open mind and to be able to have a give and take attitude. And of course, when you attend a mediation, there will be relevant documentation, including a written summary. And that\'s where I\'m going to cover what are the documents that you need to have. Next slide, please. So to prepare for these sessions, these are the issues that as a lawyer, you have to discuss with your client, depending on where the disputes are. If the divorce is not contested, then obviously you don\'t have to discuss contested divorce. But if there\'s a difference in positions in terms of the children and excess, relocation and money, then you have to discuss those with your client. Now, let me talk about contested divorces, which is the next slide. Andrew Yip (11:47.775) Actually, honestly, contested divorces are trickier, I feel, especially if one party doesn\'t want a divorce and found only a defense. Because in such cases, it tends to be very emotional. And usually, it\'s a situation where one party is not ready and not emotionally ready for divorce, even though the marriage might have broken down a long time ago. So these sessions, these are the cases where I feel that the court counsellors play a very big role in helping to assist parties to process their feelings and emotions and hopefully reach a landing on it. Next slide, Now, custody care and control access issues are commonly disputed. So that is where, prior to the mediation sessions, the lawyers should explain what the meaning is on a talk through. what is really in the best interest of the child in their respective contexts, identify actually, before the breakdown of marriage, who is the primary caregiver and why should Jack change just because somebody filed a divorce? And then to process with the client beforehand, what\'s the impact of the relationship, are the living arrangements and to discuss practically and realistically what is in the best interest of the children even after the divorce. I think it\'s important for lawyers to of emotion as opposed to what is truly objectivity in the best interest of the child. And that\'s chemically and that\'s where I think the lawyers and the counselor as well as the judge mediator, the work hand in glove and to help the client process all these. Now the next slide will be on maintenance. And personally, I feel that when it comes to money issues, it\'s a little bit easier, although There\'s obviously still underlying emotional issues related to these issues. So in terms of maintenance, what the lawyers have to do is to take instructions on what your clients do, what your income is, prepare your documentary evidence and your list of monthly expenses, and then to advise your clients on the financial obligations under the law, which will be covered in your subsequent contact sessions. Andrew Yip (14:08.353) Now, in terms of division of assets, you obviously need to advise the clients on how the court would divide assets. You\'ve heard Raymond talk about the pool. So there will be financial, non -financial contributions that the court will have to take into consideration. And you\'ll all of course have to obtain what your list of assets are and the values of these assets. So the next slide will tell you all the documents that you need to collect and get from your clients in order to prepare and advise. prior to the mediation. Now, I\'m going to talk about the practice direction part five. And the reason why I\'m raising this for your attention is because while the court will mediate child issues and mandatory, as I\'ve told you in the previous slides, the court will not conduct mediation in relation to asset division above two million if there are no contested child issues. And with effect from July 2020, the court will also not conduct mediation for international child abduction under the International Child Abduction Act. Now what this means is that if the clients want to mediate, if you stand, they will have to attend private mediation. I want to flag this for everyone just in case you\'re wondering, okay, why do I have to pay attention as a lawyer so much on this? Now, under the legal professional conduct rules, a family law practitioner is actually expected to advise the client on all available dispute resolution options and consider resolving the proceedings amicably. And in the next slide, Andrew Yip (15:55.751) These are the advantages of mediation we are now giving to you so that you have conveniently at your disposal why to sell or to pitch or advise the client why mediation is advantageous. So essentially, really helps parties resolve matters in a non adversarial matter. I personally feel that that\'s extremely important for many cases. Parties take ownership, they have complete control. They don\'t need a stranger judge who doesn\'t know their family, who doesn\'t know their children, decide on matters for their own child. They should be the one making those decisions and mediation affords them that option to do that. And the next slide, essentially, is the parties themselves who can come up with practical and solutions for the way forward post -devotion. It really saves a lot of time and legal things for them. Most importantly, It avoids a lot of emotional trauma of undergoing a contested hearing, a trauma not just for the child, but the parents themselves. And we all know that, you know, when the parents themselves are not in a good emotional state, it will definitely flow down to the children. And so to conclude, you guys would have heard a lot about therapeutic justice. Mr. Yuck is going to explain more about that in subsequent sessions. But just to let everyone know that really therapeutic justice can be implemented only if the entire family justice ecosystem is coherent. And that\'s what\'s been happening with the family courts, with MSF. And the lawyers are very much stakeholders and key players in the entire ecosystem. And so part 10A really is just one set of the amendments to implement EJ within the court process. And as I\'ve showed you under the professional conduct rules, it\'s the duty of the lawyer to advise the client appropriately. And what I put there is that there\'s mandatory co -acquiring program by MSF. And there\'s also pre -action mediation that you can have. I think the law society has, MSF also has adopted that. And you can certainly advise the client to go for private mediation even before the rate of divorce is filed. So that is all. And thank \#separator:tab \#html:false Practice Direction Part Five mandates court-mediated {{c1::child issues}} but excludes mediation for asset division above {{c2::two million}} without contested {{c1::child issues}}. Lawyers need {{c1::Client\'s income, expenses, financial obligations, client instructions, documentary evidence, and monthly expense lists.}} to advise clients on {{c2::maintenance}}. Issues for discussion in preparation for mediation include {{c1::contested divorce proceedings}}, {{c2::custody of children}}, {{c2::access to children}}, {{c2::relocation}}, {{c2::financial support}}, and {{c2::division of assets}}. Failing to comply with advice under Section 139J does not constitute {{c1::contempt}} of court. The first step in the Family Dispute Resolution (FDR) Conference process involves a Counselling Session and a Mediation Session, including {{c1::Co-Mediation}}. Presided by Judge Mediator, with co-Mediator counsellor Attended by solicitor and client⮚ Conducted if there are high conflict custody issues or⮚ when there are complex psychological and relational issues. Non-compliance with court advice or orders may result in a {{c1::stay of proceedings}} or {{c2::imposition of costs by the court}}.