Mediation rather than divorce judge?

Mediation rather than divorce judge?
Mediation rather than divorce judge?

Mediation rather than divorce judge?

Josef Alkatout – Lawyer*

Published today at 1:31 p.m.

Since the entry into force of the new Geneva law on mediation at the beginning of the year, civil judges are required to encourage litigants to attempt mediation “in all situations” which seem suitable to them, in particular in family law. The mediation system set up free of charge by the canton takes into account neither the financial situation of the parties nor the chances of success of the mediation process.

This paradigm shift was warmly welcomed by the judiciary and the media – for different reasons: the judiciary is counting on a reduction in the workload of the 26 judges of the Geneva Civil Court of First Instance who are currently handling more than 20,000 proceedings per year.

As for the media, they relay the official objective of the new law (“contribute to social peace”) because mediation would be a remedy against long and costly legal procedures. In reality, the majority of matrimonial proceedings are initiated by joint petition using online paralegal services or by appointing a single lawyer who represents both spouses; this type of litigant does not need mediation.

For more complex and highly contentious cases, it is also doubtful whether the new mechanism is an adequate tool. In principle, only one of the spouses risks losing their case before the ordinary judge and therefore has an interest in finding a “compromise” with a mediator – a compromise which ignores part of their rights.

For example, if Mr.’s matrimonial acquisitions are hidden in an obscure web of offshore structures, the outcome of the legal proceedings becomes uncertain. Madame therefore agrees to enter into mediation where she will certainly obtain less than what the law gives her but she gains in certainty and does not risk spending astronomical sums (which she does not have) in lawyer’s fees for to assert his rights.

Another example: Madame who refuses the establishment of alternating custody of the children and who demands from the authorities the establishment of numerous social evaluation reports to cast doubt on the father’s parental abilities. The latter then ended up accepting a minimal visitation right proposed in mediation for fear of seeing his children alienated for years if he were to insist on the continuation of the legal procedure. The human drama that goes hand in hand with the end of a relationship can be perceived as an injustice by the “weak” party. He has only one hope left: an impartial tribunal that does this justice, and does not render it meaningless with unreasonable waiting times or prohibitive costs.

As the operating costs of the judiciary represent only 2% of the canton’s budget, an increase in the number of judges could constitute a solution and thus contribute to social peace. A spouse who must expect a rapid and considered judicial decision is less inclined to obstruct the proper functioning of institutions. A private mediator, to whom tasks inherent to the rule of law are delegated, can certainly help spouses to find a compromise to their dispute; whether it is equally capable of doing justice to both parties, however, is another question.

*Head of family law, Borel & Barbey

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