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15.102We recommend that solicitors should be obliged to inform and encourage their clients to consider the possibility of reconciliation, and the applicant (and the respondent when he is served with the pleadings) should be informed of the nature and purpose of counselling and mediation and offered a list of services for reconciliation, counselling and mediation.  This information would be in a pamphlet approved by the Family Court. (Paragraph 12.69)

The court’s powers in relation to mediation

15.103We recommend the adoption of the voluntary mediation recommendations of the report of the Chief Justice’s committee on court annexed mediation, to the effect that the court should only be able to order the parties to attend mediation if they agree.  Section 15A of the Matrimonial Causes Ordinance (Cap 179)

15.104We also recommend that a provision be enacted that where the parties agree to go to mediation, but cannot agree on a mediator, the court could appoint a suitable mediator.  We agree that judges should not become directly involved in mediation.  If one party does not consent to adjourn the case for mediation then the judge can use his best endeavours to encourage mediation. (Paragraph 12.73)

15.105We also recommend that before a case is set down for hearing the parties should provide a certificate to satisfy the court that mediation was or was not considered, or that it was not appropriate. (Paragraph 12.74)

Compulsory powers

15.106We see some merit in giving power to a judge to refuse to set down an action until the parties have certified to the judge that they have attempted some form of mediation.  We also note a recommendation that a judge should have power to recommend that the parties attempt to resolve matters through mediation, and if necessary in exceptional cases, to require them to do so.  However, we do not agree that mediation should be compulsory at this time.  We welcome submissions from consultees on whether or not the Chief Justice’s report’s proposal on compulsory mediation should be adopted for the resolution of custody and guardianship disputes.  (Paragraph 12.76)

Counselling conference

15.107We recommend the introduction of a process similar to the Australian conciliation conference, but prefer the term “counselling conference” in order to avoid any confusion with mediation.  Conciliation counselling takes place at a conciliation conference with a court counsellor which is designed to reduce conflict and encourage agreement of practical issues.  We recommend that the counselling conference be a necessary and integral part of the case management process of the court system.  We recommend that the Support Services Coordinator (SSC) should advise the judge in writing as to whether the parties have or have not attended the counselling conference, so that the next stage in the process can be initiated. (Paragraph 12.80)

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