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THE LAW REFORM COMMISSION OF HONG KONG - page 196 / 360

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assessment to promote insight and change in behaviour.”815

7.14Mediation provides the opportunity to express emotions and frustrations which may be blocking negotiations and to address the underlying concerns in a controlled environment.  This does not turn it into therapy.  The couple are not there to go over the past and work out unresolved emotional issues.  Mediation may have to be postponed until these issues are resolved by working with a therapist or counsellor.  As Marriott and Brown put it:816

“... family mediation is a process in its own right, and it is clear that there should be no hidden agenda to provide therapy or counselling for people whose contract is for family mediation; nor is it likely that properly trained family mediators will confuse these roles.”

Roles of the mediator

7.15Lawyers need to know the differences between the role of mediators and other professionals before they can recommend a new process to clients.  CDR Associates, who train mediators,817 refer to the following roles:

(1)The opener of communication channels.  The parties may not be used to communicating openly or freely.  The mediator will facilitate keeping the channels open,

(2)the legitimizer.  The mediator gets the parties to recognise the rights of the other to be involved in the process,

(3)the process facilitator.  The mediator is providing the procedure, guiding the exercise of the ground rules, and acting as referee,

(4)the trainer.  Mediation can be a subtle process of educating those parties who lack confidence in the art of negotiating,

(5)the resource expander.  The mediator provides assistance to the parties to expand their settlement options and linking them with outside experts such as accountants and lawyers,

(6)the problem explorer.  The mediator assists them to adopt creative strategies to problem solving that are mutually satisfactory,

(7)the agent of reality.  The mediator maintains the reasonableness and practicality of implementation of the proposals for settlement, and

(8)the leader.  The mediator takes the initiative to keep the negotiations flowing.

815 Idem.

816 ADR Principles and Practice, (1993) at 190.

817 In Boulder, Colorado, United States.

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