07 December 2018 - Article
It’s not news that divorce and the legal process of separation have a negative impact on children. In recent years, as this has become more apparent, courts and governments in many parts of the world have attempted to minimise the knock-on effects for youngsters.
In Hong Kong, the welfare and best interest of the children in divorce is of paramount importance. This is enshrined in statute and is where judges will start when they look at a divorce case involving children.
It is also a fact that if conflict in a case can be minimised, the impact on the parties and the children will also be reduced.
This has led to an increase in mediation – both outside the court process and within it – and the newer concept of collaborative practice. Initially, both mediation and collaborative practice focus on what can be agreed between the parties. The problem with traditional litigation is that it tends to focus the minds of the parties on what they do not agree on and consequently each takes a position. It is a different mindset.
If you start with the positive, the items which the parties find it hard to agree on tend to look less important. Both sides look more reasonable from the outset and a different atmosphere is established.
Nothing provokes an argument more than starting litigation with an aggressive divorce petition, and perhaps an injunction.
If it starts like this, it is difficult to regain the trust in settlement negotiations that must still take place between even the most antagonistic of parties. Of course, there are cases when these actions are appropriate, but they are not in the majority.
Mediation is a confidential, problem-solving process involving a third party, a mediator, who assists both parties in coming to an agreement, which they reach themselves. Whatever is said in mediation cannot be used in a subsequent court hearing.
In contrast to the court process, the parties are in control of their own agreement, rather than the court deciding for them. The mediator is normally a lawyer with significant family law experience, or a professional from the social sciences.
All mediators must be accredited in Hong Kong. One of the advantages of a mediation agreement is that it often contains details that a court would not normally order.
This works particularly well for children, as details of their care can be set out and agreed. Both parties can negotiate for the benefit of the children, and ensure that they have quality time with both parents and that there are no misunderstandings about issues such as extra-curricular activities and holidays.
Mediation can be used to deal with just one issue at stake or the whole process. So it may be that it is impossible for the parties to agree on a division of the finances without the assistance of the court, but can deal with issues relating to the children using mediation.
The courts in Hong Kong have recognised the importance of mediation, which now forms part of the process in both financial division and for disputes involving children. The latter is the Children’s Dispute Resolution process in which the judge acts as a mediator in court.
This differs from private mediation in that the process in court is not confidential and the judge can continue to hear the rest of the case, having attempted to settle issues in relation to the children in court.
As time is necessarily limited in court, it may well be the case that some, but not all, issues can be resolved by the court.
There is nothing to stop the parties from continuing the process privately in order to reach a settlement. The court will sometimes direct the parties to attend further mediation sessions, if appropriate.
Collaborative practice is a newer form of dispute resolution in Hong Kong, in which the parties retain lawyers in the usual way who enter into a contractual agreement with each other, and the parties, to act “collaboratively” to resolve family or matrimonial disputes.
As opposed to mediation, where the parties may just be negotiating with each other with the assistance of the mediator, collaborative practice offers divorcing clients the support, protection and guidance of legal professionals at all times during the process.
Such collaborative process allows child psychologists, financial specialists and divorce counsellors to work with the lawyer and his or her client as part of a team.
If these teams fail to resolve the dispute, then they are all contractually prohibited from representing the parties in any future litigation in court.
Although with mediation the parties can have the benefit of legal advisers in the room, the essence of mediation is that the parties come to an agreement which they can live with, as it is their own agreement.
The benefit of collaborative practice is that there is an understanding that everyone is aiming to reach an amicable settlement. Mediation and collaborative practice are different but equally useful tools depending on the circumstances of the case.
Both represent a positive move in dealing with disputes involving children.
The article was originally published in South China Morning Post on 18 February 2014.