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THE LAW REFORM COMMISSION OF HONG KONG - page 193 / 360

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Part II - Non-adversarial Dispute Resolution Process

Chapter 7

Introduction to Non-adversarial Dispute Resolution Process

7.1Part II of the Consultation Paper  deals with  the way custody, access, and guardianship disputes are dealt with by non-adversarial dispute resolution processes, particularly mediation.  In most countries mediation is becoming the preferred method of  resolution for such disputes.  Thus it is necessary to explain what mediation is and how it differs from existing methods of dispute resolution such as negotiation or litigation.  This will be dealt with in this chapter.

Adversarial process

7.2Saposnek stated that:

“by any standard of common sense, as well as the accumulated research data showing that children need … a cessation of inter parental conflict, the adversarial process must rank very low as a method of making  satisfactory and lasting post divorce parenting arrangements ....”800

7.3The impact of the adversarial process can be minimised by encouraging the use of alternative methods at an early stage so that only the most entrenched cases go to trial.  Time factors are critical for a child, so early settlement or, if that is not possible, an early hearing should be encouraged.  The Irish Law Reform Commission noted that there were certain advantages to the adversarial process for those cases that could not be diverted to alternative methods of dispute resolution.  It was the most effective way of testing the credibility of witnesses, and it reduced excessive judicial interference.801  

7.4Perhaps more critical than changes in the substantive provisions of the law on guardianship and custody is the way that these types of disputes are handled by the professionals involved in the legal system and the parents themselves.  If the language of the law is changed to reflect parental responsibility but the same adversarial system exists, with minimal support services attached to the court,802 acrimonious affirmations filed by the parents, and parents and lawyers engaged in combative attitudes, then it is arguable that the best interests of children are not being promoted.

800 Saposnek, Mediating Child Custody Disputes, 13-17 (1983).

801 Consultation Paper, Family Courts, (March 1994), at paragraph 4.13.

802 The social welfare officer has only an investigative role laid down by legislation.  Section 3(1)(a)(i)(B) of the Guardianship of Minors Ordinance (Cap 13).  There are no counselling or mediation services attached to the Family Court in Hong Kong.  Obviously there are counselling services provided by the Social Welfare Department and the non governmental agencies but the services are voluntary and rely on parents’ self referral.

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