Everyone is aware, to a greater or lesser extent, that divorce proceedings can take years. Spouses must bear in mind that there is little chance of them getting a divorce 'straight away' when their case comes before the court. Of course, I am not saying that there are no such proceedings. However, if the spouses are at odds with each other and cannot agree on issues that are important to them, plus they have minor children together, the divorce proceedings may be prolonged considerably. An alternative solution, which offers the chance of a quicker divorce, is to mediation before divorceas discussed in today's article.
Already at this point, it is worth pointing out that, in order to take advantage of this possibility, we must be in such a relationship with the other spouse that we are able to talk to him or her calmly on neutral ground, in the company of an impartial person such as a mediator. What advantages it has mediation before divorce? What does it involve in practice?
I will address these questions below.
I invite you to read on.
Optionality of mediation in divorce proceedings
Currently, conducting mediation before divorce is one of the options that can be voluntarily used by spouses deciding to divorce. Thus, mediation can be carried out upon a consensual request of the parties, but also upon a court decision - with the consent of the parties. This possibility follows directly from Article 436 § 1 of the Code of Civil Procedure (hereinafter: CCP), which states that:
"If there are prospects for the maintenance of the marriage, the court may refer the parties to mediation. This referral is also possible if the proceedings have been suspended".
The aim of any mediation before divorce is to settle amicably the contentious issues that should be resolved as a result of the dissolution of the marriage. Thus, the subjects of mediation may be primarily:
- division of the property of the spouses after divorce,
- determine the rules on custody, exercise of parental authority and contact with joint minor children,
- regulation of maintenance,
- reconciliation of the spouses.
The duration of the mediation procedure should not exceed three months. However, the time limit may be extended at the request of the parties or for other valid reasons if this will promote an amicable settlement of the case.
Principles of mediation
Mediation proceedings, by their very nature, are distinguished by a number of rules that are intended to ensure the proper course of such proceedings and the security of the parties opting for it. However, the most important principles of mediation are voluntariness and confidentiality. Above all, mediation is carried out voluntarily, only once the parties have agreed to it.
The principle of confidentiality, on the other hand, states that information that the parties (and the mediator) obtain during the mediation proceedings cannot be used in other circumstances. For example, proposals that the spouses make during mediation cannot be used as evidence in possible court proceedings. In addition, this principle is reflected in the fact that mediation proceedings are confidential.
The mediator, who accompanies the parties during the conversation, is impartial. He or she does not take sides in the conflict, but at the same time helps the parties to know and express their position on the issue.
Attention!
The parties may withdraw from mediation at any time.
Mediation before divorce - stages
- Once the decision to mediate has been made, the mediator contacts the parties to arrange a date and venue.
- At the meeting, the mediator explains the rules and process of mediation and asks whether the parties agree to mediation.
- Mediation is first and foremost a conversation. With a view to resolving the dispute amicably, the mediator assists the parties in formulating settlement proposals. Sometimes, at the agreement of the parties, he or she may also indicate ways of resolving the dispute.
- Minutes shall be drawn up of the mediation, indicating the place and time of the mediation, as well as the names, surnames (names) and addresses of the parties, the name and address of the mediator, and the outcome of the mediation. The minutes shall be signed by the mediator. He shall serve a copy of the minutes on the parties.
- If the parties have reached a settlement before the mediator, the settlement shall be included in, or annexed to, the record.
- Once a settlement has been reached, the mediator shall immediately file a report with the court having jurisdiction to hear the case.
- If the settlement agreement is enforceable by way of execution, the court shall approve it by making it enforceable.
Advantages of mediation
- Mediation is intended to enable the parties to settle amicably the contentious issues to be resolved as a result of the divorce.
- It fosters a lowering of negative emotions and an understanding of one's own and the other person's needs, thereby reducing the psychological burden of the conflict situation.
- It offers the chance to bring the dispute to a quicker conclusion.
- In parental separation conflicts involving minor children in addition to the spouses, the mediator is primarily concerned with their welfare and needs.
- A settlement reached before a mediator, once approved by a court, has the legal force of a settlement reached before a court.
Legal novelty - Compulsory mediation before divorce
The Polish legislator has long announced that a reform of family law is to be carried out in the near future. There are many indications that it will cover very important issues such as:
- immediate maintenance,
- information proceedings in divorce cases,
- comprehensive regulation of enforcement proceedings.
What follows, as a result of the announced changes, we can look forward to a moment when mediation before divorce will be an obligatory requirement and not one of the options. Importantly, however, this solution is to apply when a divorce is sought by a couple with minor children in common. In practice, it is to boil down to the fact that the divorce will be preceded by so-called information proceedings, which will take place in the presence of the court and the mediator. In the course of such a meeting, the parties will be informed about the possibility of mediation, they will learn about the social and individual consequences of divorce (especially for children), but they will also be presented with the advantages of mediation and settlement. Finally, it is worth mentioning that such mediation is intended to last a full month, which will allow the parties to verify that they are indeed able to find an optimal solution to their situation in the company of a mediator.