Pregledni rad
Divorce mediation – Croatian law and European solutions
Irena Majstorović
Sažetak
Nowadays mediation is neither a priority issue of the family policy, nor of legislation, i.e. the state in the wider sense. What is more, the state has, it seems, taken a rather defensive standpoint concerning family issues and marriage, as well as its dissolution. Divorce and family disputes generally present a parallel world about which the persons involved are not, as a rule, inclined to talk. Difficulties and shame remain within the four walls and may be revealed during mediation, which is secret. Also, there are neither strong mediators’ lobbies, nor even spouses satisfied with mediation who would promote this process, as it is the case with some other interest groups. It could further be said that the mediation process includes, in the course of time, a relatively limited group of citizens. Such consideration would certainly be caused by the low rate of divorceability, which has been about the rate 1 in Croatia for years. However, the figure can be expressed differently if we take into consideration the so-called cyclical rate of divorceability according to which every fifth marriage in Croatia is divorced, which considerably changes the meaning and value judgment of mediation since thousands of citizens are involved in this process in the course of time. Even if it were not so, we think that it is not necessary to assess the value of the regulation of a certain area primarily on the basis of the number of persons involved in it. The interest of legal security, namely, requires the opposite. Therefore it is worth an effort to preserve each particular marriage, in spite of (apparent) costs which such a process may incur. The value and meaning of mediation or, more extensively, of all alternative ways of dispute resolutions in all legal areas are indisputable. The family mediation process is especially valuable, particularly having in mind the proclaimed principle of family protection. But the process of family mediation itself, as it is now provided by Croatian family legislation, still requires certain improvements, especially in the light of the described European requirements. Primarily, as mentioned above, the status, financing and improvement of mediators as well as the status of children during the mediation process are questionable. If the state resolved these uncertainties, we believe that it would lead to a change of general opinion towards mediation and, consequently, recognition of its significance. The mediator does not have legal authorization by which he or she could guarantee cooperation of parties. However, an atmosphere should be created in which spouses would be willing to participate in mediation, even when it does not end in the adoption of an agreement. We believe that, correctly carried out, mediation itself enables better understanding of the causes of difficulties and conflicts, as well as finding out the possibilities of their solution. From the aspect of all the persons involved in this process, both the mediator and spouses (as well as other family members if the principles of mediation also started to be applied to other family disputes), it would be exceptionally significant. Finally, the interest of the state in stimulating family members cooperation is also significant. It can be shown not only in caring for citizens, but also in facilitating the work of competent bodies and reducing expenses which incur from numerous proceedings. It seems to us, however, that the greatest danger comes from considering mediation a mere formality. Seen as a form without content, the mediation process loses its meaning. This family law area is therefore a good proof that it is not enough to adopt legal acts, but it is more important to secure their correct and conscientious application in practice, because only thus law gets its full meaning.
Ključne riječi
mediation between spouses; mediator; divorce; Croatian law; the Council of Europe; the European Union
Hrčak ID:
11589
URI
Datum izdavanja:
15.4.2007.
Posjeta: 6.215 *