The USA Journals Volume 03 Issue 06-2021
34
The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
June 22, 2021 |
Pages:
34-40
Doi:
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‘
ABSTRACT
Today, the role of the institution of mediation in resolving disputes around the world is increasing.
Particularly, since 2018, a completely new system - the mediation system - has entered the legislation
of Uzbekistan as an alternative way to resolve disputes. Family mediation is one of the types of
mediation. This article draws several conclusions based on foreign experience in family mediation,
the views of legal scholars, and the study of national legislation as a new form of family dispute
resolution.
KEYWORDS
Mediation, family mediation, court, mediator, mediation agreement.
INTRODUCTION
Article 63, Constitution of the Republic of
Uzbekistan, states that the family is the basic
unit of society and has the right to protection
by society and the state.
The second part of the article states that
marriage is based on the voluntary consent
and equality of the parties.
When a marriage is built on a voluntary basis
between the parties, it does not always go on
successfully. Neither party has the right to
keep the family compulsory. This is followed
by the preparation of cases related to the
dissolution of the marriage in court, the trial
of the case in court, the issuance of court
decisions on the case. According to the
analysis, the most common and most
Family Mediation: A New Form Of Resolving Family Disputes
Muborakkhon Anvarovna Tojieva
Independent Researcher, High School Judges With The Supreme Judicial Council Of The
Republic Of Uzbekistan
Journal
Website:
http://theamericanjour
nals.com/index.php/taj
pslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
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The American Journal of Political Science Law and Criminology
(ISSN
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Pages:
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Doi:
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mediated procedure in family disputes is
divorce [1, pp. 24-28].
THE MAIN FINDINGS AND RESULTS
In accordance with the norms of the Family
Code of the Republic of Uzbekistan, a
marriage may be annulled by a civil registry
office (civil registry office) or by a civil court.
The availability of the opportunity to apply to
the civil registry offices for divorce does not
limit the right of the parties to apply to the
court.
However, starting from 2018, a completely
new system - the mediation system - has
entered the legislation of Uzbekistan as an
alternative way to resolve disputes. In this
regard, the Law of the Republic of Uzbekistan
dated July 3, 2018 No. 482 “On Mediation”
was adopted.
Article 4, of above law, states that mediation
is a method of resolving a dispute with the
assistance of a mediator on the basis of their
voluntary consent, so that the parties reach a
mutually acceptable solution, and is carried
out by specialized specialists – mediators [2].
Also, according to Article 3 of the Law, the
application of this Law applies to disputes
arising from civil legal relations, including in
connection with the conduct of business
activities, as well as in relation to relations
related to the use of mediation in individual
labor disputes and disputes arising from family
legal relations, unless otherwise provided by
law.
However, the law does not apply to disputes
that affect or may affect the rights and
legitimate interests of third parties not
involved in mediation, as well as the public
interest.
Family mediation is one of the types of
mediation.
Today,
developed
European
countries are also widespread among the CIS
countries, especially in the Russian Federation.
In these countries, mediation deals with issues
such as resolving family disputes, dissolving
marriages,
and
resolving
conflicting
relationships between parents and children.
According to the lawyer N.A.Kurmaeva, family
mediation, as a rule, includes several stages:
1)
To
conduct
a
stage
on
mutual
representation of the will of the parties
on mediation. At the request of the
parties, at the end of this stage, an
additional conclusion may be reached,
which reflects the mutual agreement of
the parties;
2)
Search for a mediator with the intention
of concluding a subsequent mediation
agreement between the conflicting
parties;
3)
Collection
and
systematization
of
information received from the parties to
the conflict, their requirements, as well as
the identification of third parties involved
in the process, the date, time and place of
the interview;
4)
Direct mediation, in which the mediator
receives information from the conflicting
parties; as well as the study and
systematization of third parties involved
in the process, the risks involved; work on
the
gradual
achievement
of
an
agreement that satisfies the parties to
the dispute;
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The American Journal of Political Science Law and Criminology
(ISSN
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5)
Reaching an agreement between the
parties to the family dispute and
concluding a mediation agreement. If the
parties to the mediation are unable to
reach an amicable settlement of the
dispute and do not sign the mediation
agreement, they have the right to go to
court [3, p. 15].
These stages are also reflected in the Law on
“On Mediation”, which in practice lasts from
90 minutes to 4-5 weeks [4].
If we look at the history of family mediation,
we can see that this institution was
widespread in Western countries many years
ago.
The British Committee on Financial Affairs had
put forward its proposal for the introduction
of family mediation and thus the abolition of
family court proceedings as early as the 1970s.
But the government did not pay attention to it
in time. In 1978, an independent reconciliation
service was formed in Bristol by several
volunteers. In 1981, the National Family
Conciliation Council (NFCC) was established.
The council was later renamed the National
Family Mediation Center (NFMC).
In the Family Law of 1996, the institution of
mediation was officially enshrined in law as a
paid legal service for resolving family disputes.
Under British law, there is no age limit for
becoming a mediator. That is, as in the
legislation of Uzbekistan, a person is not
required to be twenty-five years old. The
mediator must have completed a course of 8
subjects lasting several months in an
accredited organization. A mediator who
successfully completes the course will be
assigned a professional practice consultant.
The new mediator participates as a partner in
the work done by his / her advisor and
receives from him / her at least 4 hours of
lessons per year. After 10 hours of mediation,
the mediator should be able to work
independently and work to replenish his
portfolio with mediation. Completing the
portfolio usually takes a period of two years,
after which the mediator is eligible to become
a member of an association of mediators
belonging to his or her field.
To become a family mediator, you must have
at least three years of work experience and 50
percent of the work done during this period
must be related to family disputes. It is also
required to have completed a five-module
training course on family conflict mediation
[5].
Another feature of the British Institute of
Family Mediation is the presence in the state
courts of professional mediators in the courts
specializing in this field. The parties will also
have the right to apply to a mediator after
filing a lawsuit to annul the marriage. Another
noteworthy aspect is that the case is not
accepted by the court before the dispute is
considered in mediation. This suggests that
the court must consider the dispute by a
mediator in order to accept the case in a
family dispute [6, p. 16].
Thus, divorces, which began in the 1960s,
increased the number of disputes over the
division of their property and the appointment
of guardians or custodians to children, the
increase in workload in the courts and
financial difficulties have led to the emergence
and development of the institution of family
mediation in Britain. As a result, to date, 49%
of family disputes are resolved by mediators.
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In the United States, too, the institution of
mediation was originally applied to family law.
In 1981, for the first time among states,
California law recognized mediation as a
procedural
form
of
guardianship
and
relationship with children.
In 1990, the U.S. Congress passed the Civil
Judicial Reform Act, and to enforce the law,
norms were introduced into state procedural
codes that recognized the institution of
mediation as the primary form of dispute
resolution and were widely enforced by the
courts.
This provision was further strengthened in
1998 by the Alternative Dispute Resolution
Act. In 2001, the Uniform Mediation Act was
passed. It stipulates that at any stage of the
proceedings, the parties may resort to an
alternative method of dispute resolution.
The Australian Law on Mediation, adopted in
1997, cites mediation as a primary method of
resolving family disputes, rather than as an
alternative method of dispute resolution. As a
result of the law, 95% of family disputes are
resolved at the pre-trial stage [7, p. 58].
The services of mediators are widely used in
the legislation of countries such as Germany,
Italy, Spain, law enforcement and judicial
practice in resolving family disputes.
Disagreements between spouses related to
the continuation of a marriage through
mediation in family matters in accordance
with the Law of the Republic of Kazakhstan
No. 401-IV of January 28, 2011 “On Mediation”,
disputes arising over the exercise of parental
rights, the determination of the place of
residence of the children, the payment of the
parents for the children, as well as any other
family relations. During mediation, the
mediator must take into account the
legitimate interests of the child.
At the international level, documents on
family mediation have been adopted between
states as well. One such international
document is the Recommendation of the
Committee of Ministers of the Council of
Europe No R (98) 1 of 2 January 1998 on
mediation
in
family
matters.
These
recommendations
provide
relevant
recommendations on the role of family
mediation in modern European law, its
principles, scope, and process, its interaction
with the judiciary, advocacy and international
mediation. In short, this document is a guide
to the implementation of the institution of
mediation [8].
Based on foreign experience in family
mediation, the views of legal scholars [9, pp.
1785-1793] and the study of national
legislation, the following conclusions were
drawn:
Family mediation can resolve issues such as
not only the dissolution of a marriage, but also
the appointment of a guardian or trustee, the
share of the parents in the maintenance of the
child, and who raises them;
Family mediation allows for the reduction of
long-term civil litigation and the simplification
of pre-trial proceedings;
Leads to a reduction in the number of family
disputes and the reduction of the burden on
the courts;
Leads to a reduction in the cost and time
spent by the courts on family matters;
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The widespread introduction of the institution
of family mediation also contributes to the
development of the institution of conciliation,
as many other categories of cases are heard in
civil courts, with hundreds of people applying
to
neighborhood
civic
gatherings.
A
professional mediator also works to reconcile
them and find solutions to their problems,
which is his professional duty.
At the same time, there are a number of issues
that need to be addressed in order to
introduce family mediation in Uzbekistan.
These are: specialist in family mediation -
professional mediators do not exist in
practice, there are mechanisms for their
training, but they are not widely promoted
and adequately established. In particular, the
Family Research Center under the Cabinet of
Ministers of the Republic of Uzbekistan aimed
to promote family mediation by improving the
work of conciliation commissions under
citizens' self-government bodies. It was
planned to train them at this research center.
However, conciliation commissions under
citizens' self-government bodies are unlikely
to become family mediation centers. This is
due to the fact that among the members of
the commission there are no experts who are
familiar with family law and mediation
procedures. We believe that the newly
established Research Institute “Mahalla and
Oila” under the Ministry of Mahalla and Family
Support of the Republic of Uzbekistan pays
special attention to the organization of family
mediation and the training of independent
professionals in this area. In this regard, the
order of the Minister of Justice of the
Republic of Uzbekistan No. 54-mh dated
January 31, 2019 “On approval of the program
of training mediators” was adopted, this order
approved the program of training mediators
in accordance with the annex and established
that special training courses on the program
of training of mediators will be organized by
the Center for Legal Training under the
Ministry of Justice of the Republic of
Uzbekistan. The module of the training
program of mediators organized at the center
provides for the training of family mediators,
training courses are based on a combination
of theory and practice. But there are specific
features of the training of family mediators,
the training of which cannot be achieved only
through legal education.
Lack of approval of uniform requirements for
mediators on family issues. In the above
analysis, we noted that when studying the
experience of the United Kingdom, Australia,
mediators on family issues are trained not only
in legal, but also in sociological and
psychological modules, their work is directly
related to the personal life of individuals. As
family mediation becomes more widespread,
special requirements for family mediators will
become a necessity.
Lack of guidelines and instructions on the
organization and conduct of family mediation.
The analysis revealed that in countries such as
the European region, Canada, Australia and
the United States, the organizational, legal
and scientific basis for the activities of
mediators on family issues has been created.
Recommendations with special official status
have been developed for them. In the
Republic of Uzbekistan, it is expedient to
jointly develop recommendations or scientific-
practical manuals and guidelines for the
implementation of family mediation in
cooperation with the Research Institute
“Mahalla and Oila” under the Ministry of
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Mahalla and Family Support and the Center
for Lawyers under the Ministry of Justice.
Lack of family mediation promotion. This
applies to all areas of mediation. Although the
use of the institution of mediation in the field
of entrepreneurship is widespread, the
majority of the population is not aware of
mediation in resolving family issues. As noted
above,
conciliation
commissions
under
citizens' self-government bodies cannot act as
centers for the implementation of these
activities. Because the family mediator not
only seeks ways to reconcile families, but also,
in due course, works on their divorce,
provides a comprehensive solution to the
issues of division of property, child support,
who will remain in their hands.
Lack of specialized centers for family
mediation. On September 18, 2020, the
Tashkent Mediation Center was registered by
the Ministry of Justice of the Republic of
Uzbekistan, but these and similar centers are
centers that unite professional mediators in all
areas. Advanced foreign experience shows
that family mediation centers operate
separately from other mediation centers.
Given the widespread use of the institution of
family mediation, it can be of great
importance in our country. At the same time,
it is expedient to form their professional
associations. Such associations help to
provide organizational and methodological
support to their activities.
CONCLUSION
Family mediation as a means of resolving
family disputes is not reflected in detail in
either substantive or procedural law [1].
However, according to the experience of the
United States, Great Britain, France, Canada,
Australia, the institution of family mediation
and the procedure for its implementation are
reflected in the substantive law (Family Law)
and procedural law (Judicial Law, Procedural
Codes). But this situation is not yet reflected
in our legislation.
Certainly, it has not been long since the
institution of mediation was introduced into
our legislation. There is still a lot of work to be
done on this. We believe that this institute,
which takes into account the best practices of
the world, will spread in our country. Our
citizens also understand the importance of
this institution not only in business but also in
personal life.
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