The 3rd Seminar on EU Family Law

JUST/2013/JCIV/AG/4642

11 and 12 May 2015, Portorož

This project is funded by the Civil Justice

Programme of the European Union

The view of the psychologist on Court

proceedings and mediation in cases of

child abduction

Anka Stojan, BA in psychology,

partner and family therapist,

mediator, mediator trainer

Portorož 2015

.

IT’S ALL ABOUT

RELATIONSHIPS

.

PARTNERSHIP RELATIONS

DIVORCE

SEPARATION – family

MEDIATION

Two spouses having their own individual manner of

communication, perception, understanding,,

interpretation, emotion, powerful unconscious beliefs,

etc.

One of the phases of the family cycle

Different stages of divorce and grief for a failed

relationship

Two lawyers

Mediator and co-mediatior

www.mediacjia.si

PHASES OF FAMILY LIFE

MARRIAGE - PARTNERSHIP WITHOUT CHILDREN

FAMILY WITH YOUNG CHILDREN

FAMILY WITH SCHOOL AGE CHILDREN

FAMILY WITH CHILDREN IN PUBERTY AND ADOLESCENCE

FAMILY AT THE TIME OF CHILDREN LEAVING HOME

FAMILY IN THE MIDDLE OF LIFE BETWEEN THE TIME

CHILDREN LEAVE HOME AND RETIREMENT

FAMILY IN OLD AGE UNTIL THE DEATH OF PARENTS

PARTNER AND PARENTAL ROLE

Partner role

Parental role

Quality of family life depends on the relations between

partners.

Main contents of partner problems or the “Holy Trinity”

are:

children, beliefs about upbringing

money

sexualitywww.mediacjia.si

WHAT AFFECTS DIVORCE

AND EMOTIONS CONNECTED

WITH IT Interpersonal relations are the source of deepest happiness or

extreme despair. (Kompan Erzar2003).

The relationship ends with divorce or dissolution of cohabitation

Series of studies have revealed a number of factors that increase the risk of separation (Newman, Newman 2003):

Age at marriage (under 20 years)

Socio-economic status

Emotional stage of partner‘s development

Divorce in the family of origin www.mediacjia.si

WHAT AFFECTS DIVORCE AND

EMOTIONS CONNECTED WITH

IT Divorce can also mean a sense of relief for the individual

Although we can read in literature that the emotional

situation for the person filing a request for divorce is less

acute, the opposite is true in divorce proceedings

After the divorce follows an important process of

mourning, where the individual is confronted with the

reality of loss and all the emotions s/he experiences due to

this loss.

Mourning for a failed relationship is a process that can last

for several years

www.mediacjia.si

WHAT AFFECTS DIVORCE AND

EMOTIONS CONNECTED WITH

ITIn the process of mourning we can trace several stages, which

last about 36 months

Stage preceeding the divorce, where the decision is taken

Actual formal divorce and

Stage following the divorce (Glaser, Borduin 1986)

www.mediacjia.si

WHAT AFFECTS DIVORCE AND

EMOTIONS CONNECTED WITH

ITIn the process of mourning the lost relationship we can recognize the

following phases (Carr 2000):

1. shock

2. denial

3. sorrow

4. anger, rage and hatred

5. guilt and fear

6. despair

7. integration/acceptance www.mediacjia.si

Phases of mourning after divorce (Carr

2000)

The phases do not necessarily follow one another and the

transitions between them are not clear

It is mostly so that at a certain moment one phase

dominates (one feeling phase or reaction phase) before

another one

Between the phases shifts back and forth are possible

Jumping a phase is not possible

They can be very short

If any of the stages have been left out, mourning canot be

completedwww.mediacjia.si

SEPARATION MEDIATION

In proceedings of the associated Court

Action on divorce, granting custody, determining

contacts, determining maintenance payments + division

of joint property

Lawyers – help / hindrance – problems with neutrality

WE, EACH AND EVERYONE, ESPECIALLY

MOTHERS, KNOW WHAT IS GOOD FOR THE

FAMILY – BUT IS THIS TRUE?

Professional disagreement

Big generational gap

SEPARATION MEDIATION

today

Divorce is not a tabu topic anymore

Father‘s contribution to the parental role is equal to the

mother‘s

Economic crisis – loans, big houses

More frequent relocation abroad

“ABDUCTION”

Abduction – the word has a negative connotation

is divided into:

- Actual abduction

- Threats of abduction

- Desire for relocation

Cases

North of America

Countries of former Yugoslavia

Work abroad

Maribor – Koper

Koper - Kranj

ADVANTAGES OF MEDIATION

.

www.mediacjia.si

CHILD IN MEDIATION

Why mediators do not invite

children in mediation

Center of Social Work conducts an interview with the

child and prepares a report

Strong belief that children should not be exposed to this

kind of situations

Parents are rarely able to separate their interests from the

interests of their children

Ignorance and insufficient knowledge

4-47% of children are involved in mediation in the US,

England and Australia (Divorce and Family Mediation,)

16% in California Administrative Office of the Court, 1996

60% Norway

Mediators who invite children in

mediation haveMore experience in the work with children

More experience in how to interview children of different

ages

Additional knowledge for the work with children

Positive experiences in teaching children, which are more

frequent if mediators are from medical backgrounds than

if they have a legal background (Lansky, 1996)

mediators, who do not set time limits to the process and

are not under the pressure of time constraints

Those who do not have restrictions concerning money

Mediator's theoretical orientation and mediating style

also have an impact

Mediators who oppose

Mediators, who are strong advocates of children and who

quote clinical and research documents indicating the

frequency of the inability of parents who are in the process of

separation to take into account the clear needs of their

children (Wallerstein and Kelly, 1980)

Those who argue that too much flexibility leads to

additional alienation - increasing the power of children

reduces the power of parents (Saposnek, 1991)

WHAT CAN BE ADDED AS

ENCOURAGEMENT?

The correct use of the child in mediation helps to reduce

the fear and anxiety of children in connection with the

divorce

Children feel that someone cares bout their needs

It is easier for them to cope with new problems if they

know "what it was all about"

Children have a right to know what is happening in

connection with them

The continuity of anger and disillusionment with the

former partner may affect children much more than

mere separation or divorce

From the book: Divorce nad Family Mediation

J. Folberg, A.L.Milne, P. Salem

What about the children after 18 years

of age?

Circumstances when it is worthwhile to

include children in mediation(Saposnek, 1983, 1998)

When children consistently express preference for one type of

contacts to one parent and this is in conflict with the idea of the

other parent, the inclusion of the child in the interview can help to

resolve the discrepancy and bring the parents to a shared vision of

what their child wants

When the child has a particular desire to speak with the mediator,

it is necessary to respect and appreciate their feelings, concerns and

opinions

The majority of adolescents need to be interviewed because of their

cognitive abilities of formulating abstract plans, their relative

autonomy and formulated wishes on how to share time with both

parents

When parents are not able to understand the destructive

consequences inflicted on the child by their continuous hostility. In

an overall carefully guided session, parents

can be directly given important feedback.

kadar starši niso zmožni razumeti destruktivnih posledic, ki sta jih

Circumstances when the inclusion

of the child in mediation is not

desired (Saposnek, 1983, 1998)

When both parents jointly agree on the child's needs, how

they will organize contacts, what type of parenting they

will have

Children under three years

If one or both parents disagree

When children are too anxious, afraid to speak, when

they have nightmares, abdominal pain, etc.

When children could be manipulated by their parents,

and this would certainly cause additional stress for the

children. These are cases where parents cannot separate

their own needs from the needs of the child or believe

that the needs of the parents come before the child‘s needs

Recommended protocol when

including children in the mediation

process

Number of reasons why to interview a child during the process of

mediation

The interview with the individual child should be carefully chosen

The children interviewed in the context of divorce of their parents may

be under the influence of considerable stress and the mediator must

make steps to minimize this stress (J. Folberg, A.L.Milne, P. Salem

2004):

Confirmation that the positive factors of the involvement of children

in mediation will overcome the negative ones, or risks (at least in the

long term, although questionable in the short term)

Obtaining permission of both parents for the interview

Preparing and tutoring both parents for the process of inclusion,

preparation of the child

Ways of including the child in

mediation (J. Folberg, A.L.Milne, P. Salem 2004):

Early in the mediation process – so that the mediator can introduce

the information, views, feelings, concerns of the children early in the

process of negotiations

Periodically through the process - anytime he speaks on the topic,

which could be quickly clarified with this information

The child is present at all times and is an equal participant - mainly

adolescents

Towards the end (the penultimate meeting) - after having already

agreed but not yet finalized the agreement

At the end the mediator communicates to the child what has been

agreed,

Other options – the therapist talks with the child and gives feedback

information to the mediator

.How to bring children into the mediation process

.

A model that helps the child’s voice to be heard in mediation,

developed by, Familievernkontoret for Asker og Baerum.

Familievernkontoret Lillehammer.

The mediator meets with the parents

.

a. Two mediators explain the process to the child and

parents

.

b. The mediators talk to the child alone

.

c. The mediator summarises for the parents what the

children want to communicate to them, while the child

and the other mediator stand behind the one-way mirror.

d. Parents and children summarize together what the

acquired information means to each one of them in

turn

.

The mediator meets with the parents and they agree on the

final solution

.

MEDIATORSThe mediator who interviews the child must be

appropriately educated in psychosocial development

and family dynamics, and have the knowledge of

children's reactions to divorce and the consequences of

the divorce. It is particularly important that he is

supervised. The mediator who does not have this

knowledge can cause damage to a child, if he includes

him/her in mediation.

(Divorce and Family Mediation J. Folberg, A.L.Milne, P. Salem, 2004).

LITERATURE

Dallos R, Draper, R. An Introduction to Family Therapy: Systemic Theory

and Practice. Maidenhead: Open University Press; 2004.

Folberg J, Milne A, Salem P. Divorce and Family Mediations: Models,

Techniques, and Applications. New York: The Guilford Press; 2004.

Goldenberg I, Goldenberg H. Family Therapy. Sixth edition. USA:

Thomson Broks/Cole; 2004.

Minuchin S. Families and family therapy. Cambridge: Harvard University

Press; 1974.

Kompan-Erzar K, Poljanec A. Rahločutnost do otrok. Ljubljana: Brat

Frančišek in Frančiškanski družinski inštitut; 2009.

.

And happiness is,

That there is a path

before me,

And I know,

That sweetness lies in the

fact

That I go.Janez Menart