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THE LAW REFORM COMMISSION OF HONG KONG - page 290 / 360

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and in effecting  improvements....”1248

Domestic violence and sexual abuse guidelines

12.115The New Zealand Boshier report recommended that “ordinarily, where an application for domestic protection is made and where it is coupled with a guardianship application, mediation is inappropriate.  Mediation could be directed if the applicant agreed.”1249

12.116The Boshier report also recommended that: “cases involving actual sexual abuse allegations should not be referred to the Family Conciliation Service,1250 at least until the allegations are properly investigated and only then with the parties agreement and judge’s review of any agreement reached.”1251  We recommend that guidelines for cases of domestic violence and child sexual abuse should be established to screen cases for family mediation on a similar basis to the Australian and New Zealand guidelines.

Evaluation

12.117An evaluation of the pilot project would be essential by independent researchers who would be allowed access to case files at the court and the agencies.  All records should be computerized with compatible software to facilitate and exchange information for research purposes.  Benjamin and Irving expressed some concern that when funding for research relies on policy makers, the level of funding tends to be directly related to the proportion of cases in which agreement is reached.  Success is measured by the number of cases in which mediation leads to an agreed outcome.  Such an approach is misleading, however, as success should not be defined only in terms of agreement rates, as research shows that even those who fail to reach agreement still gain some satisfaction from the process.1252  We recommend that the pilot project on court annexed family mediation should be independently evaluated.

Community mediation

12.118The Social Welfare Department provides family services through 42 family service centres and there are at least 23 such centres in the non-government sector.  There are 19 family activity resource centres within existing community centres.  They are an initial contact point for families.  The family service centres and family activity resource centres should publicise the availability of mediation services.  Some family service centres (in both sectors) should be designated to provide mediation services to assist the resolution of family conflict before approaches are made to court and the conflict has become entrenched.  Until mediation becomes well known it may be more appropriate to attach it to these

1248 Finlay, “Family Mediation and the Adversary Process” Australian Journal of Family Law, vol 7, No.1, (1993), 63, 69.

1249 Paragraph 11.5.4, supra.  

1250 That report had recommended a separate and distinct Family Conciliation Service working alongside the judicial branch of the Family Court.

1251 Paragraph 12.5.2 ibid.

1252 See chapter 7 supra.

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