Approaching mediation in families
Approaching mediation in families
There are pros and cons to a mediator offering opinions, coaching, and giving case analysis. It depends on the dispute, the needs of the parties, and the background of the mediator.
Family mediation is a very important and responsible task or service which promotes unity and coordination but at the meantime it is very challenging job because it requires lots of skills and experience. In a society like Afghanistan where citizens practice very unique culture and is a Muslim society; family mediation play important role but that does not necessary mean that an outsider to play the role of mediator. In family disputes and difference of opinion such as tensions between wife and husbands, discomfort in living in law house, low quality marriage, not treating the bride family equally as the groom, right to work for female, right to access to legal justice, right to access to higher education, divorce and so on are issues which are perceived as very critical are regarded as the honor and dignity for a family and therefore, the family engaged in somehow disputes do not wish to disclose their disputes/tensions to outsiders. So in this case, usually the most elder person of the family which is known and respected as the Speen Geray (White beard), take the initiative and intervene volunteer and very gently touch upon the issue so that the families involved or engaged in the hidden war or dispute open their mouths so that the white beard man can have the forum and opportunity to speak. In this regards, family mediation in Afghan society has got different phases and different criteria. The first phase is pre-mediation phase, known to many as Maraka (informal interview), second phase is imploring, beseeching or longing so that the two families are set to get out of the situation they are into and third phase is Mainzgrtoob (mediation), the third phase is important and for this the mediator get in touch with both families/parties/couples and get their approval to intervene to settle the dispute and for this trust and confidence from both conflicting parties is vital. If one party do not wish to have one person as the mediator he/she/they decide and introduce another person but mostly they try to involve someone who belongs to the closest family so that their disputes and difference remain confidential and it does not disclose to outside. Having said this, in the Afghan context a family mediation could be define as “a process in which those involved in family breakdown, whether or not they are a couple or other family members, appoint an impartial third person to assist them to communicate better with one another and reach their own agreed and informed decisions concerning some, or all, of the issues”. In Afghanistan, the intervention process being played by a third but acceptable party to both sides or all parties involved in the conflict. The third party may have no decision making power but to some degree an influence to assist in facilitating negotiation among two or more parties to assist in resolving disputes, manage conflict, plan future transactions or reconcile interpersonal relations and improve communications.
In any, contemporary or under-developed society, the faith and destiny of affected cells of the organ is paramount important to be taken into considered not to be affected further? For instance, if disputes exist among couple with a history from arrange marriage, love marriage, settlements, property relationship with families and so on. How about the children? What about the parents who dreams for long lasting relation of the children to remain a united and happy family? What and how could be done to resolve the problem traditionally?
As said earlier and will be discuss further in detail later, in Afghan society, family disputes particularly the issue of divorce, request for separation, family violence and so on are traditionally very critical and the approach to resolve or involve mediator to resettle these issues are very challenging and not easy. Afghans are practicing very unique traditions and because of the presence of different ethnic groups as well as because of the weak and newly established judicial institutions; people do not trust to take their family issues into court. Long lasting war, civil war, insurgency and immigrations had negative impact on damaging the set stones rules and traditional regulations. In fact, traditional power structure which existed prior to war is washed our and is completely demolished now. Under traditional power structure, Afghans had a solution formula which was known among the tribes as Lyara (The path) for each and every single social and family disputes including divorce, separation, children rights, groom rights and bride rights and parents responsibilities but now those are badly damaged. However, the role of neutral, impartial, skilled and trustworthy mediator is still of golden value.
DEFINATION OF MEDIATION
Mediation is a process in which an impartial third party (the mediator) facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute. In mediation, a mediator helps parties understand each other’s’ perspectives and discuss options for settlement. Mediators do not decide who is right and who is wrong. The mediator has no authority to impose a settlement on the parties.
Australian Law Reform Commission (ALRC) defines mediation and family dispute resolution as “any non-judicial process where an independent Family Dispute Resolution practitioner helps people affected, or likely to be affected, by separation or divorce, to resolve some or all of their disputes with each other”
There are a range of views on the appropriateness of Family Dispute Resolution (FDR) in family violence contexts, there appears to be a degree of consensus on certain matters. First, involving a mediator or using Family Dispute Resolution in cases involving family violence carries particular risks. Secondly, if family violence is to be dealt with in Family Dispute Resolution (FDR) processes, it must be handled by skilled and knowledgeable practitioners using appropriate safeguards. Thirdly, in practice, some cases involving family violence do and will continue to proceed to mediation.
In determining whether a dispute is appropriate for FDR, the FDR practitioner must take into account whether the ability of any party to negotiate freely is affected by a number of factors, all of which are potentially relevant to cases of violence. These include: any history of family violence among the parties; the likely safety of the parties; the equality of bargaining power among the parties; the risk that a child may suffer abuse; the emotional, psychological and physical health of the parties; or any other relevant matter.
It is strongly recommended that, a skilled practitioner or mediator must build building opportunities for positive personal contact; building understanding of roles and responsibilities; considering ways to improve communication and feedback about clients; and provide enough information such as affects and side effects of continuation of disputes to both conflicting parties.
RULES AND REGULATION FOR MEDIATION
In most states, there are rules providing that mediation is a confidential process, meaning that communications made during a mediation session by any participant (whether in a joint session or private caucus) cannot be used in court regardless of whether the parties reach an agreement. In many instances, family involved in disputes prefer to remain in dispute but do not want their cases to be refer to formal judicial/legal institutions. Why families in dispute do not prefers their cases to be taken/referred to legal judicial system will be explained later in this paper. These rules may also prohibit, or the parties may agree to prevent, other public disclosures of communications made in mediation. Also, these rules may provide that communications made during a private caucus involving one of the parties and the mediator will remain private from the other party unless the party who participated in the private caucus permits the mediator to disclose any of the communications to the other party. The rules sometimes create exceptions to confidentiality. Your mediator is likely to discuss all these aspects of confidentiality with you but, if he or she does not, be sure to ask.
WHY AND HOW TO PREPARE FOR MEDIATION
Before mediation, people sometimes feel worried because they don’t know what to expect. You are more likely to feel satisfied with mediation if you prepare carefully ahead of time. This is especially important if you have never been in mediation before. Even if you have mediated many times, it is still helpful to prepare, for each mediation because the issues, parties, and mediators are different in each case.
In many cases, the parties select or participate in selecting the person who will serve as the mediator in their case. Even if a court orders parties to mediate, the court may give the parties the chance to participate in selecting the mediator. If you can participate in selecting the mediator, consider what experience and qualities in a mediator would be most important in helping the parties resolve their dispute. In family cases, it is generally good if the mediator has training and experience in family mediations. Some states offer a special certification for mediators qualified to do family mediation. If you know of particular mediators, consider whether any of them have the experience and qualities you think would be most helpful in your case.
FORMAL STATUES OF MEDIATION
If the parties reach an agreement, the mediator may help the parties put it in writing. If the parties have lawyers, the lawyers might draft any written agreement. Once an agreement is signed by all parties, it normally can be enforced in court. Different states, courts, and mediation programs may have different mediation rules, which is the case in the most modern countries; certainly not Afghanistan. Here traditional power structure play dominant role and traditionally it has been that no decision is put in written form. Not always but mostly. However, in recent years, things start to change.
WHY PARTIES IN CONFLICT DO NOT TRUST FORMAL JUDICIAL INSTITUTIONS
Since the collapse of the Taliban regime in 2001 in Afghanistan, the international community supports the Afghan government in building the rule of law in Afghanistan. The country faces the challenge of legal pluralism and the weakness of state authority in many areas. Hence, the non-state justice institutions still are more popular and reliable for most Afghans than the state justice institutions. The reasons for the bad reputation or rejection are inter alia corruption, long-lasting and expensive proceedings or lack of access to the public sector. Non-state dispute resolution mechanisms on the other hand mainly aim at reconciliation and restoration of peace and harmony within the community in order to maintain stability. They are thus considered fairer and are more accepted by the majority of the population. Non-state justice itself however varies between the different regions of the country, making it difficult to provide a comprehensive overview. The applied rules in the non-state sector are inter alia different customs and traditions of the various Afghan ethnic groups. Nearly every group has its own way to handle disputes, on the basis of own customs. Since Afghan customs and traditions in some cases violate statutory law, the Shari’a or international human rights standards and the popularity of non-state justice weakens the influence of the state, this issue got more and more into the focus of the actors being involved in the state-building mission conducted in Afghanistan.
ISSUS TO CONSIDER BEFORE MEDIATION SESSION
Even if you don’t talk with anyone else before mediation, you should think about the issues listed below. You may not be able to give a definite answer some of the following questions and your answers may change during the mediation process, but it is still helpful to seriously consider these questions ahead of time. The following is called a pre-checklist of questions so that the issues become more clear and easy for successful mediation. Here too like in any conflict resolution approach, the attitude and behavior must change so that trust and confidence is built and parties live in peace.
IN AFGHAN SOCIETY I WOULD PREFERE PREPAR THE FOLLOWING CHECKLIST
What is the conflict really about? How does your conception of the conflict change, if at all, when you think about it from the other party’s point of view? If the dispute affects your child, what do you think are your child’s most important needs and interests? Are some of the problems caused by misunderstandings or hurt feelings? What issues do you and the other parties agree about? What issues do you disagree about? What information, documents, legal rules, or other things might cause the other party to change his or her mind about the issues you disagree about? What might cause you to change your mind? Are there objective standards the parties could agree on that might help resolve the dispute? What would you like to accomplish at the mediation? What does the mediator need to understand to help accomplish the goals? What does the other party need to understand? What would you need to feel satisfied with the outcome of the mediation? What do you think that the other party needs to feel satisfied?
This may involve an apology, a change in behavior, payment of money, or other things .If you can reach a good agreement in mediation, how will the agreement affect your relationship with the other party after the dispute is resolved? If you don’t reach agreement, what is most likely to happen? What is your best possible (realistic) alternative if you don’t reach agreement? What is your worst possible (realistic) alternative? How would you know if a possible agreement is better than the most likely alternatives? How comfortable are you with the risks of not reaching an agreement, such as going to court? What would you need to feel comfortable reaching an agreement at the mediation session? Is there someone you would need to check with before you finalize an agreement?
By Australian law reform commission (ALRC): http://www.alrc.gov.au/publications/11-alternative-processes/family-dispute-resolution-and-family-violence
By Julia Pfeiffer Verfassung und Recht in Übersee / Law and Politics in Africa, Asia and Latin America Vol. 44, No. 1 (2011), pp. 81-98 Published by: Nomos Verlagsgesellschaft mbH Stable URL: ttp://www.jstor.org/stable/43239779 Page Count: 18 https://www.jstor.org/stable/43239779?seq=1#page_scan_tab_contents
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