Foreign Experience of Mandatory Mediation in Family Law Disputes
The new Civil Code introduced the possibility of mandatory mediation in some family law related disputes in Hungary. Under the new regulation entered into force on 15 March 2014 courts may refer the parties to mandatory mediation in child custody cases (including visitation rights). Although courts had the possibility to suggest the parties to make use of mediation services for a long time, referral to mandatory mediation is a novelty in Hungary; however this is only a possibility and not an obligation to the judge. Because of the recent introduction of court referred mandatory mediation, there are several open questions needing to be answered and the regulation itself is also incomplete. In my opinion more procedural rules should be implemented parallel to the setting up of a mediation service system which is able to satisfy the needs of disputing families to promote (mandatory) mediation as a real alternative to court procedures. Otherwise this instrument will only remain a theoretical possibility. There is also great need for researching mediation theory as well as the legal framework and practical experience of other countries, where mandatory mediation is already operating well. Such a research would help to identify the open questions and possible shortcomings of the Hungarian regulation, and would provide guidance and solutions on how to deal with the issue. For this purpose I examined the legal framework in California and Australia and reviewed the accompanying research and follow-up studies on client satisfaction, case characteristics etc. Due to the limited scope of this study I present only the Australian legal regulation and study results and as a conclusion I try to pinpoint some hot topics needing to be addressed and considered in Hungary. In 2006 a well prepared and extensive family law reform has been introduced in Australia. As part of the reform (a) 65 Family Relationship Centres (“FRC”) have been founded to provide family dispute resolution services, furthermore the new regime introduced (b) mandatory mediation in connection with child related disputes, (c) new rules regarding shared parental responsibility, (d) protection of children from exposure to family violence and child abuse and (e) less adversarial court procedural rules in children‟s matters. In the followings I summarize the family dispute resolution rules with special emphasis on mandatory mediation in parenting issues. Lastly I deal with the meaningful results of the study “Evaluation of the 2006 Family Law Reforms” from December 2009.