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THE LAW REFORM COMMISSION OF HONG KONG - page 203 / 360

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Chapter 8

Comparative Dispute Resolution Process:

England and Wales

Introduction

8.1This chapter will look at the development of mediation (formerly called conciliation) in England and recent reforms in the law of divorce and such ancillary matters as disputes over children.  There are considerable lessons for Hong Kong in looking at the English experience of implementing changes to the system of handling disputes over children.  England has found that changing the language of legislation, as was done in the Children Act 1989, though it has helped to reduce the acrimony between parents when they divorce, must be supported by changes to the dispute resolution system.  

8.2The focus of the English reforms is on encouraging mediation as a way of resolving disputes between the spouses before proceedings for divorce get under away.  It is hoped that this will reduce the number of contested cases which the adversarial system will have to deal with.  The arrangements for the children will be expected to be made before a divorce order can be applied for or made.  The fact that such arrangements have been made will also be evidence that the marriage has broken down.

8.3English family laws, especially since the Children Act 1989, “have been moving away from the traditional adversarial notions of rights and justice towards that of welfare.”841  The emphasis on incompatibility rather than fault has encouraged negotiation.  This shift in the moral climate and in the purposes served by the divorce law assists a climate where conciliation can grow.

History of mediation

8.4Mediation has had a long history in England.842  As far back as the Finer Committee report843 conciliation was recommended as an established part of the divorce court procedure.  The conciliation movement steadily gathered momentum in the first half of the 1980’s.  There was also an Inter-Departmental Committee on Conciliation which reported in November 1983.  The Booth committee in July 1985 endorsed the value of out of court conciliation.844  With the publication of the Booth report845 and the statement of the President of the Family Division,846 a clear demarcation line was drawn between conciliation services and the activities of

841Davis, “Conciliation and the Professions”, vol. 13, Fam Law,  6, (1983).

842 Paragraphs 8.4-5, 8.9-11, and 8.19-8.36, were substantially taken from an unpublished dissertation by Paula Scully, Obstacles to Referral, Planning and Implementation of Family Mediation as a Dispute Resolution Process in Hong Kong; Reflections based on Foreign Systems, April 1996.

843 Report of the Committee on One-Parent Families, (1974).

844 The Hon Mrs Justice Booth, Report of the Matrimonial Causes Procedure Committee (1985).

845 Idem.

846 Sir John Arnold in 1985.

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