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Mediation in divorce proceedings

What is mediation and for whom can it be useful?

“Beyond right and wrong lies a place. There we meet.” This quote by the poet Jalâl-ed-dîn Rumî aptly describes what mediation can be. Mediation (Latin for conciliation) is an extrajudicial procedure for resolving conflicts. One of its best-known areas of application is divorce mediation.

When couples separate, there is often a mutual desire to resolve the issue amicably. Especially if children are involved in the separation, there is often a desire to avoid the so-called “war of the roses”. Rarely, however, are couples who break up in agreement on all points. It should be “fair” and “you want to get what you are entitled to by law”. As a lawyer, you often hear these or similar phrases during the first consultation. And what is fair or just? Although the law lays down certain framework conditions and case law has developed guiding principles that define a way forward in divorce or custody disputes, this is precisely where the difficulty lies. No two conflicts are the same and relationships are complex, so the law cannot take every individual case into account.

Mediation can offer an alternative way in these cases. The mediator supports the participants in resolving the conflict, but does not prescribe the solution. No one is better placed to decide what constitutes a fair solution than the parties to the conflict themselves. A court decision dictates the outcome. In mediation, the parties involved shape their own outcome, within the limits of what is legally permissible. The only prerequisite is the willingness to engage in this procedure in order to find an amicable solution.

Mediation and the law?

Mediators moderate the conversation and use targeted questioning and communication techniques to find out the real needs that are often hidden behind accusations and demands. Mediators must adopt a neutral and impartial stance. They are equally obliged to support both parties. This distinguishes the role of mediators from that of legal advisors. Lawyers are exclusively committed to the interests of their clients. And thus they are inevitably biased. A legal advisor, however, can offer insight into the legal situation in the background. For example, knowing that evidence of the other spouse’s infidelity has legal relevance will also influence the negotiating position in mediation. (Partial) solutions worked out by the parties can be checked for legal feasibility between the mediation sessions by involving the respective legal representation and evaluated again at the next joint meeting. Precisely because the legal situation influences what is perceived as fair by the parties. Mediation therefore does not take place in a “legal vacuum”.

The work of mediators and lawyers can complement each other, especially since lawyers are limited in their ability to mediate conflicts, as they are only allowed to represent one party for professional reasons. Particularly when couples have simply drifted apart and there are no serious marital misconduct issues, it happens that both spouses come to a lawyer in order to jointly inform themselves about the consequences of a separation. If a lawyer acts as a mediator for both spouses in the first step, he/she may not represent either of them. In this case, the mediator can initially take on the role of mediator, while the lawyer(s) protect(s) the legal interests of their client in parallel or afterwards.

At the end of a successful mediation, the parties involved conclude a mediation agreement that covers all points of the settlement and can form the basis for a divorce settlement in court. This is usually where the legal representatives come into play again, who draft the agreement reached into a legally correct settlement text.

Court proceedings – mediators as witnesses?

Mediation proceedings are inexpensive compared to contentious court proceedings, among other things because there is no risk of having to reimburse the other party’s costs. Hourly rates are often lower and, under certain conditions, family mediation funded by the Federal Chancellery can also be used.

The mediation is also confidential. The mediator is obliged to maintain absolute confidentiality about all facts that have become known to him/her in the course of the mediation. This confidentiality obligation goes so far that mediators may not be called as witnesses in court (§320 ZPO). The possibility of “releasing” the mediator from the obligation of confidentiality is not provided for in civil proceedings. This provision prevents information confided in a mediation from being interpreted to the disadvantage of a party in later civil proceedings. The relationship of trust with the mediator and the resulting duty of confidentiality are essential for the willingness to participate in mediation. A mediator can only be asked about the question of the formal start of mediation when it comes to clarifying the possibility of a limitation period. This is because the beginning and the proper continuation of mediation suspend the beginning and continuation of the limitation period for asserting the rights and claims affected by the mediation.

Attention: The principle of fault still applies in Austria. If one person is responsible for the failure of the marriage through serious marital misconduct, this can also become financially uncomfortable. Especially if the “guilty” person earns significantly more than the “innocent” person. This can result in the obligation to pay post-marital maintenance. In view of this, it can be critical from a lawyer’s point of view to disclose any extramarital affairs or other missteps in a divorce mediation.  As already mentioned, mediators may not be called as witnesses. If the mediation fails, the spouses themselves can, and often do, tell the court what was discussed. Similarly, it could be problematic during mediation in the context of custody proceedings to admit things to the other parent that cast doubt on their own parenting skills. Such disclosures could later be used in court. In this case, the free assessment of evidence by the competent judge is decisive. From a lawyer’s point of view, mediation can be a useful tool to resolve contentious conflicts, but it should not be confused with couples therapy or confession.

Is mediation useful in every case?

Mediation has great potential in family law conflicts. At the same time, it is not a “panacea” and is not suitable in every case. If people feel the desire not to accommodate the other person, this is justified. Mediation can only be successful if it is voluntary on the part of the parties. The parties concerned must be able to do without a court finding that they have been wronged. In legal practice, one experiences that people are often also concerned with “being right”. Both sides need to be willing to move.

Agreement is a good thing, but it should be done at eye level. This can be challenging in relationships with a violent dynamic, for example, and carries risks. Mediation is a future-oriented process that is only narrowly concerned with coming to terms with and apportioning blame for incidents from the past. Mediation must not be equated with a therapeutic session. Moreover, in violent relationships there is a risk that the ability of those affected by violence to negotiate in a self-determined way is limited, for example due to the power exercised by the partner or as a result of past traumatisation.

Even in cases where the conflict has already escalated to such an extent that mediation is no longer effective because there is absolutely no basis for discussion, a court decision is needed as an intervention of power from outside.

Ordering out-of-court dispute resolution in court?

The advantages of mediation have already been recognised by the legislator. In disputes about custody and/or contact rights, at least an initial mediation meeting can be ordered. However, even the court cannot force the continuation of mediation, because a sustainable solution can only be achieved if all parties actually want it. Mediation is always voluntary and can be terminated at any time by one or both parties. But even if no holistic agreement is reached, partial results can also be a step forward.

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