Point de vue

Family Mediation in France (en anglais)

31/03/2004

Dans cet article paru en Avril 2004 dans la revue Australienne "Journal of family Studies", Deborah Macfarlane analyse l’évolution, en France, de la Médiation familiale.

Voir aussi http://www.mediationconference.com.au/

Résumé :
"Importée en France du Québec à la fin des années 80, et considérée comme remède à l’accroissement rapide du taux de divorce et à l’engorgement des tribunaux, la médiation familiale a d’abord suivi de près la voie prise par les pays anglo-saxons. Cependant, le gouvernement, les institutions, la loi, la culture, la religion et les structures familiales ont infléchi le chemin pris par la suite par la médiation familiale en France. Il en est résulté une médiation familiale empreinte de sa "logique latine" propre. Cet article traite de ces influences, ainsi que des récents changements en profondeur de la médiation familiale qui ont accompagné le mouvement de réforme du droit de la famille initié en France en 1998."

(Texte reproduit avec l’aimable autorisation de l’auteur - La traduction française complète de cet article sera très prochainement disponible.)


Family Mediation in France

Deborah Macfarlane
La Trobe Law, La Trobe University,Victoria

This article was first published in the Journal of Family Studies, April 2004, (La Trobe University, Melbourne, Australia).
http://www.latrobe.edu.au/publichealth/family_studies/jfs_home.htm

Introduced into France from Quebec in the late 1980s, and seen as a panacea for dealing with the rapidly increasing divorce rate and enormous backlogs in the courts, family mediation initially followed closely the direction taken in the Anglo-Saxon countries. However, French government, legal institutions, law, culture, religion, and family structures have exerted their influence on the path family mediation has taken subsequently in France to produce family mediation with its own distinctive “Latin logic”. These influences are discussed, as are the recent sweeping changes to family mediation that accompanied the large overhaul of family law begun in France in 1998.

In 1975, no-fault divorce was permitted in France for the first time when the French parliament, the Assemblée Nationale, passed an amendment to the new civil code of procedure allowing divorce by mutual consent after two years of separation to become one of the four grounds for divorce then available. Nevertheless, contested divorces remained frequent, comprising approximately 40% of the annual 115,000 divorces in France in 2001 [1]. The divorce rate itself increased sharply in the 1980s. One of the aims of introducing divorce by mutual consent was to reduce the level of discord between parents, but it had limited effect. Counsellors, and social workers, even judges and lawyers who saw at first hand the terrible consequences of conflict on parents and their children, became increasingly concerned by the overall failure of the courts to contribute constructively to the problem.

The Development of Family Mediation in France

Mediation as a means of resolving disputes was introduced into France from North America in the mid to late 1980s and established itself fairly rapidly in a small but significant way in several areas dealing with employment, commercial, neighbourhood, consumer and family disputes. At that time the courts dealing with family law matters were experiencing considerable backlogs and the costs associated with litigation, both social and financial, were rising steeply. In addition, to professionals in the family area the courts did not always seem very effective in dealing with divorce and related matters in ways that were helpful to the parties or their children. Mediation appeared to provide a possible solution. According to family mediation researcher, Laurence Dumoulin, mediation offered not only a technique for resolving conflicts but also a dream,“a magical vision of the world, the bearer of a social and political project and of a certain conception of the family”. Sociologist Irène Théry also speaks of the “dream” of mediation contrasting with the “nightmare of justice” (Dumoulin, 2003).

Specific knowledge of family mediation reached France via Quebec. Quebecois mediators provided the necessary conduit (Théry, 1997 ; Sassier, 2001 ; Lindeperg, 2001) between the Anglo-Saxon countries, particularly the United States & Canada, and France, because although most French people learn English at school, they resemble English speakers in that they are generally limited in their capacity to speak anything other than their native tongue.This does not, of course, apply to the Quebecois who are usually more or less bilingual.The articles written by mediators from Quebec were easily accessible to the French, as most of the American articles were not. In addition, some French professionals employed in the area of family breakdown (psychologists, counsellors, social workers, lawyers, judges, notaries) attended international family conferences where they received first-hand accounts from Quebec mediators of the benefits of the recently introduced technique. According to Dumoulin, they also saw it as a means of diversifying and reinforcing their own power base (Dumoulin, 2003).

Some were enthusiastic enough to attend mediation courses in Quebec and thus became France’s first qualified family mediators. One of these, Annie Babu, lobbied strongly in support of the need for family mediation. It was due mainly to her persistent efforts that eventually in April, 1988, a group of professionals involved in family law from a number of European countries formed the APMF - Association for the Promotion of Family Mediation (Théry, 1997). There were so few professionals at the time that “its essential goal was one of promotion”, to “make family mediation valued in France and Europe” [2]. The aims of the new organisation were (and still are) the following [3] :

- To make the public, institutions, public powers, and the media aware of the benefits of mediation in family matters ;
- To guarantee the ethical basis, training and professional conditions necessary for the exercise of family mediation as outlined in the code of practice ;
- To pursue every avenue of action and every opportunity for research in family mediation and its professionalisation (by this was meant the establishment of certain qualifications, such as a diploma, in order to practice family mediation in France). [4]
As the new association’s few family mediators had been trained in Quebec, their practices and code of ethics were initially indistinguishable from mainstream family mediation in North America at the time.

At the same time, legal professionals, public servants, and through them, politicians, were becoming aware of the potential for mediation. In November, 1988, a public service circular examining the efficiency of service delivery of justice to the public recommended mediation as a first port of call in all dispute resolution in France. In April of the following year, a bill was presented by the Minister for Justice in the French National Assembly proposing that mediation be instituted in the French legal system as a measure of first resort in all except criminal jurisdictions. The bill foreshadowed the ability of the trial judge, with the permission of the parties, to appoint a mediator for a maximum of 3 months, the mediator to be chosen on the basis of his or her expertise in the area disputed. However, some of the deputies (members of parliament) considered that mediation might serve merely as a palliative measure to combat the crisis of judicial backlogs and voted against the measure, resulting in its defeat (Sassier, 2001).

The very fact of its presentation by the Minister for Justice is, however, indicative of the speed of acceptance of the new technique in France among the more progressively minded of the judiciary, lawyers, the French Bar, social workers and counsellors, and the public service. To these professionals family mediation, with its focus on de-escalating conflict and its encouragement of mutual agreement, seemed particularly suited to family matters. In the absence of the desired law, some judges in family affairs - juges aux affaires familiales [5]
- began informally to use mediation in their courts. Recorded cases indicate that three courts referred litigants to mediation in the 1980s (each court referring litigants only once), but as these naturally present an incomplete picture, it is difficult to ascertain the extent of the tendency (Sassier, 2001).

The use and acceptance of family mediation seems to have occurred more rapidly among legal professionals and counsellors than was the case in the Anglo-Saxon countries.This was possibly due to the fact that lawyers and others operating within the adversarial system were rather less amenable to the conciliatory and consensual aspects of mediation (although, in France, as in Anglo-Saxon countries, there was and remains some ambivalence towards mediation among many legal professionals). Other contributing factors may be the existence in France of a strong innovative left among the intelligentsia, including the professions, and the fact that the French judiciary are trained in special Schools of Magistrature, not drawn from the ranks of the Bar.

Several small family mediation services, usually attached to a centre already providing other types of mediation, family counselling, or both, were formed in France between 1988 and 1991. Amely, the Association for Mediation in Lyon, is a good example of one such family mediation service. It had been established in 1986 as a “social” (neighbourhood) mediation service by a “law boutique”, a group of lawyers wanting to find “less confrontational solutions to legal problems”. [6]
Victim-offender mediation was offered from 1989 and in 1990 a family mediation service was set up.

The same phenomenon was happening in other European (mainly French or German-speaking) countries and in 1989 the first European Congress of Family Mediation was held, largely at the instigation of the APMF. At a subsequent Congress in 1992, a European Charter was drawn up, again on the initiative of the APMF, to regulate the training and education of family mediators who had to follow the procedures laid down in the Charter to become accredited. These entailed 210 hours of theory, a period of observation in an organisation dealing with family conflict, work experience, and the writing of a research paper. At the successful completion of the course, participants received a certificate of aptitude in the exercise of the functions of a family mediator, and agreed to undertake analysis of their practice or supervision (collective or individual), or both.This program was ratified by the European Forum, based at Marseille, which oversaw mediation training programs in several countries, including France, Switzerland, Belgium, Luxembourg and Germany (Sassier, 2001). By 2000 there were 80 such programs in Europe. Thus the profession regulated itself, in the absence of any government approved program for the training of mediators. [7]

The Congress also inspired the establishment in 1991 of another national organisation for mediation in France, the National Committee of Associations and Services of Family Mediation (CNASMF), now called FENAMEF (National Federation of Family Mediation). The name itself indicated that mediation had advanced a lot further than when the AMPF was formed in 1988. Its stated aim was to “federate, promote, advise and inform associations and organisations involved in family mediation”. [8] Both groups still constitute the main national associations of family mediation in France,AMPF representing around 25 family mediation services [9] and FENAMEF 196, (including six in the French colonies of Reunion, Guadeloupe, and Martinique). [10].There is also a smaller and more radical group called the National Centre for Mediation (CNM) comprising practitioners of mediation (AMPF and FENAMEF tend to be made up of professionals involved in the family area, who also practise mediation) (Dumoulin, 2003).

Integrating and Professionalising Family Mediation

From the start, French mediators wanted “legalisation” of family mediation, by which they meant its recognition within the judicial system, and “professionalisation” or the establishment of recognised qualifications within France. Thus, mediators would be considered as professionals in the same way as other professionals involved in the social sciences, such as social workers or psychologists.These constituted the major preoccupations of family mediation organisations with regard to their profession in France in the 1990s. As far as the actual practice of mediation was concerned, the major focus was to reinforce family bonds for the sake of the children throughout the trauma of separation and divorce.

These goals coincided with the desire of successive governments to minimise the harm of family breakdown and its cost to the taxpayer and societal stability as well as (and partly as a result of the latter) to increase the responsibilities and rights of fathers. Possibly because of the influence of the dominant religion, the Catholic Church, which remains strong to the present day, the French are generally very concerned about supporting the family and assisting its cohesiveness.The Catholic Church is often involved directly and indirectly in family support. For example, a recent representative of France’s National Union of Family Associations on a taskgroup working on a project for the Ministry for the Family was Paul de Viguerie, who is Director of the National Confederation of Catholic Family Associations, Director of the Institute of Childhood and the Family, and Director-General of the Assembly of Presidents of General Councils (the administrative heads of the départements or local councils). The priority given to the family is also reflected in the number of government and government assisted organisations working for the benefit of families throughout the country.

In fact, the position of relative strength occupied by family mediation in France today is best seen as a process which has developed hand in glove with the major family organisations, the main one being the National Family Assistance Centre (Caisse Nationale des Allocations Familiales - CNAF) [11] Others include the National Union of Family Associations (UNAF) [12] , AMPF, FENAMEF, Communal centres for social action, similar to community centres (CCAS), the Mutual Agricultural Associations (MSAs) which assist farmers in the provinces, the National Confederation of Catholic Associations (Confédération nationale des associations familiales catholiques - CNAFC), services de PMI (infant welfare centres), and the EICCF (offices for the provision of family information, consultation or family counselling). In addition, there exists a myriad of child and family services providing counselling and other forms of assistance.
The considerable increase in the number of divorce and related matters in the 1990s brought the beginnings of support from the legislature which has remained supportive of family mediation since that time.The first significant step was taken on 23 March, 1993, when a decree was passed allowing the EICCFs, under Article 4, to provide funding for family mediation for “couples or families in situations of conflict”. However, such funding was not compulsory, and many of the organisations did not even have a qualified family mediator on staff (Sassier, 2001). At the same time the government was becoming alarmed at the “explosion in parental separations” (Sassier, p. 47) and in the following year, on 25 July, 1994, a law was passed in the Assemblée Nationale that a national conference of the family should be held annually between the government, its agencies, and the family associations. [13] Since then, towards the end of each year, the government decides the topic and associated themes for the following year’s conference and a working party or parties are then established to research the matters under investigation. For example, in 2000 the themes were family accommodation, early childhood and the connections between school and home ; last year (2003) the topic was “Services to the family and support of parenthood”.

When ministers and public servants and so many professionals in the area of family welfare - some of whom were already practising family mediation - assembled for these conferences, it was easier for the latter to apply the sort of pressure needed to give the legislature a push in the right direction. It was not surprising then that in April, 1995, following the National Consultation on Youth launched by the government in 1994, a circular on the “Direction to be taken by social action” recommended almost doubling the money allotted as a result of the 1993 decree. Among other objectives, it provided for “the financial support of family mediation and meeting points ... to prevent conjugal and parental conflicts ... to maintain structural links between children and the non-custodial parent” (Sassier, 2001, p.17).

Two months earlier, on 8 February, 1995, the National Assembly, considering that “the experimental stage of family mediation was largely over in France” (Busnel Report, 1999), had passed the law 95/125, relating to the organisation of legal jurisdictions and civil, penal, and administrative procedure.This gave civil conciliation and mediation, including family mediation, a legal framework. It should be noted that family mediators were not the only professionals agitating for a change in the law with respect to mediation. Other mediators were establishing themselves in areas such as commercial, neighbourhood, school, and victim-offender mediation, and also wanted the government to recognise them professionally (see Faget, 2003 ; Lindeperg, 2001).

Under the law, No. 95/125, a judge hearing a matter can, with the consent of the parties, appoint a third person for up to 3 months (Article 1), renewable for another 3 at the request of the mediator (Article 20) to “hear the parties and confront their differences to enable them to find a solution to the conflict which divides them”.This may apply to part or the whole of a matter, although the judge remains in control and can stop the mediation at any time at the request of the mediator or either party if it appears compromised. If the parties request it, the judge can ratify the agreement they put before him and thus give it executive force (Article 25). [14] The mediator is under an obligation to keep the judge informed of any difficulties met in the course of the mediation and if no solution is found, the mediator has an obligation to confidentiality, as no part of the mediation can be used before the judge hearing the matter except with the agreement of the parties (Article 24). No obligation to confidentiality exists when the mediator learns of actions susceptible to penal sanctions such as domestic violence or abuse of a child. This law, and the subsequent decree of 22 July, 1996, relative to its application, can be used for any civil law dispute (such as neighbourhood, consumer, landlord/ tenant) ; however, it was mainly designed for family disputes (Perrut, 2001).

Although the French Treasury was providing increasing financial support to associations for family mediation - 625 000 francs in 1992, 898 000 francs in 1995 and 1.15 million in 1997 (Perrut, 2001, p. 20), these associations, working through the two main umbrella groups, APMF and FENAMEF (formerly CNASMF), worked tirelessly to get family mediation recognised as a profession and to get the new code of civil procedure relating to family law amended to acknowledge the desirability and importance of mediation in family law matters.The pilot committee for the 1997 Conference of the Family, in a report on the subject of a family law statute, recommended to the French Prime Minister in February of that year, that the emphasis of the courts should be on early family mediation to resolve disputes. This, it was stated, had the following implications : that family mediation should be kept voluntary ; the level of competence should be verified ; in particular, mediators should know sufficient family law to enable them to carry out an effectual mediation ; and that the financial conditions attached to the mediation should be specified (Sassier, 2001).The following month, following an advisory note from the French Economic and Social Council, a Bill relating to the “reinforcement of social cohesion” also strongly recommended that the CAFs (offices for family payment) and their agricultural equivalent, the MSAs, should be assisted to provide family mediation “in the interests of the children ... to avoid a rupture in the family bond” (Sassier). This was considered essential.

Reflections on the French Construction of Family

What was meant in reality by “the family bond” was often the bond with the child(ren)’s father, who was the noncustodial parent in more than 80% of cases. By 2001, half of all French children whose parents had divorced had either completely lost contact with the noncustodial parent, or saw that parent only very occasionally (Sassier, 2001). However, the bond of the father and mother as parents with joint responsibility for the children was also seen as part of the family bond, not just the relationship each parent has with their children.This theme occurs repeatedly among French mediators and accords so well with government policy of the last few years that it is reflected repeatedly in ministerial reports and speeches. For example, a recent comprehensive analysis of mediation and conciliation put out by the Conseil économique et social (Economic and Social Council) in 2001, stated :“Increasingly, family law aims to decide between the law of adults and the law of children, the centre of gravity of the family being displaced from the couple towards the offspring” (Lindeperg, 2001, p. 58) Similarly the Minister for Justice when introducing the reform of family law in April 2001 declared : “Every breakdown in the family implies a reconstruction of the parental roles in a new situation ... to be a parent is to be a parent forever whatever happens in the life of the couple, the breakdown of their relationship or family recomposition. [15]

By way of contrast, in Australia, although the welfare of the children of a marriage is paramount under section 11(3) of the Family Law Act 1996, one does not find the intense focus on the bonds of the couple as mother and father that exists not only among French mediators, but also parliamentarians, judges, and researchers. On the contrary, there appears to be a greater emphasis in Australia (as well as in other common-law countries) on meeting the needs of all the family as individuals. Relationships Australia, for example, states on its website :“Our mediators will : encourage each person to talk openly ; facilitate communication between family members ; encourage family members to find the best solutions for the whole family ; allow everyone an equal say ; and check and record agreements”. [16]A similar approach can be found on the Family Court website : “Mediation sessions help you to : decide which areas are in dispute ; explore each person’s needs and interests ; explore possible solutions, taking one problem at a time ; select the most suitable solution ; clarify your agreement”. [17]

It may be useful, therefore, at this point to make a brief comment on the attitude of the French towards the family, as naturally that has strongly influenced the attitude of their government, the judiciary, family organisations and the public at large towards family mediation. It is easy to forget sometimes that France is a Latin and a Catholic country along with Italy, Spain, Portugal, Romania, Luxembourg, and parts of Switzerland and Belgium. Of all Latin cultures, it is one of the least allocentric, that is, using mediator Rene Llapur’s definition, “one in which the interests or the group and relations among group members take precedence over individual concerns or internal psychological states” (Llapur, 2003). Nevertheless, it is considerably more allocentric than Anglo-Saxon countries, where the dominant Protestant religions tend to focus perhaps more on the individual than on the cohesiveness of the extended family group. Llapur, writing about South American “Latinos” explained the outlook of the Latin countries as follows :

"This general interpersonal orientation helps explain the centrality of some cultural values.The most salient of these values is familismo, which places the multigenerational, informal extended family at thecore of the culture. Family thus extends vertically to include grandparents, aunts, uncles, andcousins (to the fourth generation)... Thus la familia referstothekinnetwork, as opposed to la casa, which denotes the immediate or nuclear family." (pp. 1-2)

While the above does not always accurately describe French families, which are tending to move away from familismo, it is clearly the desire of the Government and many mediation services to see the family in this way, not only with regard to the links between father, mother, and children, [18] though that is the chief focus but also to the links between grandparents and other family members. For example, article 371-4 of the new code of civil procedure states : “Fathers and mothers cannot, without grave reason, come between grandparents and their grandchildren”. The Minister for the Family, when speaking to a bill on family mediation before the National Assembly in June, 2000, stated that : “preserving the future of children is the principal goal of family mediation ...which can be used by all members of the family, notably grandparents.” [19] Many French family mediation services express similar views. For example, the cover page of a brochure at a family mediation centre in Paris, Ceraff-Mediation, states : “Mediation addresses all members of the family concerned by the rupture in relationships caused by separation or divorce... or any other change in family circumstances which is a source of conflict : parents, children, grandparents, brothers, sisters” (Sassier, 2001, p. 27). Another example comes from the FMCP [20] website (a group for noncustodial fathers), where in an article entitled “Twenty requirements of family mediation by ‘the paternal condition’” requirement number 2, stated : “Family mediation, by extension should be able to include other difficult family situations, eg, situations involving grandparents.”

Above all, there is absolutely no doubt that from the mid 1990s on, the French government has been trying to disabuse parents of the idea that they can go their own separate ways after divorce, with respect to their children. They have made it abundantly clear through legislation, reports, and parliamentary speeches that father and mother are expected to cooperate in their exercise of parental authority.As a result, since 1998, several measures have been instituted to support these views, most involving family mediation either directly or indirectly. The impetus for the widespread adoption of family mediation was certainly provided by the meeting of the Conseil de l’Europe, Comité des Ministres (1998) (the annualmeeting of ministers of the European Union). Referring to the European Convention on the exercise of the rights of children, and relying particularly on article 13 of the Convention which deals with the resolution of conflicts concerning children through mediation or other conflict resolution methods, the Conseil made a strong recommendation to the governments of its member states that they should institute or promote family mediation and put into practice the widerangingprinciples it recommended.

The recommendations were as follows :
- (a) the field covered by family mediation was defined (although it left the final decision over this matter to member states) ;
- (b) family mediation should not be obligatory ; it should be put into practice either through the public or private sector ; and training of mediators should be appropriate ;
- (c) the mediator should be impartial, neutral, respect the parties’ viewpoints, and preserve equality in negotiation and does not have the power to impose a solution on the parties ; the conditions in which the mediation takes place should guarantee respect for the parties’ private lives ; the mediator has an obligation to confidentiality except with agreement of the parties or in cases allowed by national law ; the mediator should inform partiesofmarital or other appropriate counselling ; should encourage parents to concentrate on the needs of children and remind parents that their primary duty is to act for the wellbeing of the children ; determine whether violence is a factor in the relationship and whether mediation should proceed if it is ; can give legal information, but not legal advice, referring parents for advice where appropriate ;
- (d) agreements between the parties should be ratified by the courts ;
- (e) States should recognise autonomy of the mediation and recognise the possibility of its occurrence before during or after a legal procedure ; allow interruption of the latter at any time, leave reserve powers to the judicial authorities to make urgent decisions for the protection of parties or their children, or their property & to inform the judicial or other competent authorities whether parties pursued the mediation and reached agreement or not ;
- (f) States should promote and provide access to mediation, including international mediation, through public information programs ; provide information to litigants of mediation as an alternative dispute resolution process in order to contribute to its development ; put into place mechanisms to deal with international disputes, particularly those concerned with custody or access visits when parents live in different countries ; mediation should be considered an appropriate way of allowing parents to organise custody and access and settle disputes, though in the case of international kidnapping mediation should not be used if it risks delaying the rapid return of the child ; the member states should as far as possible promote cooperation between family mediation services to facilitate use of international mediation ; and finally, international mediators should have additional specific training. The recommendations were adopted by the Committee of Ministers on 21 January, 1998.

The changes in family law concerning mediation have certainly been rapid since 1998 when a taskforce was set up by the Chancellery to examine all aspects of family law, particularly those relating to divorce, the rights and responsibilities of parents, the rights of children, and the role of mediation. It took nearly three years and several reports before the first legislation, entitled “Reform of parental authority : New rights for children” became law on 4 March, 2002.The responsible Minister for Family and Childhood, Ségolène Royal, described mediation as “an essential instrument in the politics of family in that it permits the social costs of conflicts within the heart of the family to be foreseen and reduced (Royal, 2001). [21] The legislation provided for extra funds to be given to family associations for mediation services. Other government departments such as the Chancellery and Employment and Solidarity, the conseils généraux (local councils) and once again, the offices for family payments (CAFs) were also given funds. In addition, the law was amended to provide children born outside marriage, for the first time, with the same rights as children born in wedlock. For the first time also, an ex-nuptial father was given the same rights and duties as the mother with regard to his child, provided he signed the birth certificate in the first year of the child’s life, so that both father and mother can together provide the necessary “parental authority” for that child. Finally, if one parent requests it, the judge can look at whether the child would benefit from “alternated residence” between father and mother. In the case of disagreement, the judge can suggest or impose family mediation. [22]

The Special Place given to Family Mediation

The most influential legislative measures regarding mediation resulted from a study on family mediation called Arguments and Proposals for a Statute on Family Mediation in France (Arguments et propositions pour un statut de la Médiation Familiale en France), presented to the Minister for the Family, Children and Handicapped Persons and written by Monique Sassier, the Assistant Director-General of the National Union of Family Associations (UNAF). Mme Sassier’s remarkable and comprehensive 106 page report on family mediation in France was presented to the National Assembly on 21 June, 2001. After interviewing more than 80 representatives of family associations, mediation groups, administrators, and other interested parties, she made 36 recommendations of which the most important were : that legislation relating specifically to family mediation should be passed, that amendments pertaining to family mediation should be inserted into the Civil Code ; that a consultative council on family mediation should be created ; that a diploma in Family Mediation to be recognised by the state should be established and all the necessary administrative and financial support provided ; and it should be legislated that the juges aux affaires familiales should provide families who appear before them with information about family mediation, as well as offering a free information session for interested families, and creating in a number of other functionaries, such as public servants and members of family associations, the duty to inform families in conflict of the benefits of family mediation. [23] Once again, there was a strong emphasis on the need for the involvement of both father and mother in the upbringing of the child/ren (Sassier 2001) :

"Our advice is that family law in general would benefit if legislation relating to family mediation were to be inserted into the section of the code dealing with parental authority. In effect, mediation is not a tool in the procedures of separation, it is a process that permits interested parties, with the aid of a third person, to strengthen parental and family bonds while allowing their marital bond to be effaced... To protect the child is a parent’s duty so that s/he can grow up to recognise the roles of his father and his mother...The breakdown in the relationship of the couple, from the point of view of the cohesion of society and guaranteeing the rights of the child, should not entail a breakdown in communication or a separation of the (family) bonds." (pp. 74 & 78)

The bill was subjected to a long discussion in the National Assembly, some deputies expressing concern about the information session or the process of mediation itself, and it did not pass the [24], although sections of it, notably those relating to the role of the judges in family matters, were incorporated into the above-mentioned Act for the Reform of Parental Authority - New Rights for Families.

However, in the intervening 3 years, almost all its recommendations have either come to pass or will shortly be implemented. “Following the report of Mme Sassier” [25] a decree of 8 October, 2001, established the National Consultative Council on Family Mediation (Conseil national consultatif de la médiation familiale) for 3 years, under the auspices of the Ministry for the Family and the Ministry for Justice, with Monique Sassier as its first head.The mandate of the new Council was to prepare the requirements for and contents of a “Certificate of aptitude in the function of family mediator” as well as a “Diploma of continuing education” from the Ministry of Social Affairs [26], together with a code of practice, and the establishment of a national information program for the public and the legal fraternity. The much sought after law on family mediation was inserted into the new code of civil procedure under article 272-2 on 4 March, 2002, establishing family mediation as a means of facilitating the exercise of parental authority. [27] On 29 April, 2003, a government website (www.famille.gouv.fr) with information on matters relating to the family, including family mediation, began its operations.

Finally, in Article 1 of Decree No 284 of 2 December, 2003, the State Council (Social Section) ordered that a state diploma in family mediation should be created, a step described by Monique Sassier as “a real success” [28] for family mediation in France. The diploma, which has now commenced operation, is open to “all professionals of the humane, social, law or medical sciences” (Sassier, 2003) and comprises a total of eighty days (560 hours) work, spread over two years. [29] Teaching of theory constitutes 42 days (294 hours) at the end of which time trainees must demonstrate legal knowledge and knowledge of family mediation, as well as other theoretical components ; complete a research paper ; spend 10 days as an observer and 5 days working under personal supervision in a mediation service.A selection process takes place for candidates for the diploma and the status of existing family mediators is preserved, provided certain requirements have been met.

In addition, all families in conflict are to be offered a free information session on family mediation, and the principles of mediation are to be explained to the parties at that time. Participation in the mediation process itself is to be voluntary, confidential and freely consented to.The objectives of the process are stated to be :
(a) to restore communication ; (b) to preserve and reconstruct bonds between family members, and prevent the consequences of an eventual dissolution of the family group ; and (c) to provide people with the means (while respecting their respective rights and obligations) to seek outcomes to the issues between them, whether or not they concern legal matters (Sassier 2003).

The following recommendations of the Council were also accepted : (a) that mediation should take place as early as possible in family conflict so that the conflict will not degenerate and become fixed in judicial debate ; and (b) where parents are separated, mediation is to favour the exercise in common of parental authority and the affirmation of a lasting responsibility (for the children), whatever the parents’ history as a couple may be ; (c) the stated aim of the mediation is to search for concrete solutions and agreements mutually decided by the parties. Other recommendations concerned the preparation of a list of family mediators ; the preparation of the diploma ; who is to teach mediation to the anticipated 200 new students a year for the next five years (Sassier, 2003) ; the establishment of an internet site to be run by FENAMEF and APMF (still the two principal national organisations of family mediation) ; preparation of a booklet on mediation ; details of cost to families (all families, except those on legal aid to contribute about one sixth the actual cost of the seven sessions which will normally run for 3 hours) ; and the dispersal of several million francs to the various agencies concerned. Finally, those involved in setting up the diploma should make sure that its conditions dovetail with similar requirements in other countries, so that the French diploma will be recognised at a European level and facilitate the mobility of mediators through the European Union (Sassier).

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Only 15 years after its introduction into France, family mediation has well and truly established itself institutionally and professionally in France, with a strong emphasis on the preservation of bonds between parents and child(ren) and of parents with each other, whatever the outcome of their relationship. Monique Sassier calls this “our Latin cultural logic” [30] and considerable financial and administrative resources have been devoted to it by the state (Lindeperg, 2001 [31] ; Sassier, 2001). There are currently more than 200 family mediation agencies and 50 independent mediators operating in France ; French universities and institutes are everywhere advertising family mediation courses for 2004 conforming to the new requirements ; they are being assisted by the government to do so.Yet the popularity of mediation with its target audience, families in conflict, is still relatively low [32], the majority of divorcing couples still preferring to use lawyers.The challenge for family mediation in France in the coming decade will be to harness the considerable energy and goodwill already generated by the new movement and to convince the general public of its benefits.

References

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- Sydney : Butterworths. Astor, H. & Chinkin. C. (2002). Dispute resolution in Australia. (2nd ed.). Sydney : Butterworths. Busnel, F. (1999, October). Mise en oeuvre de la convention internationale des droits de l’enfant en France et action du gouvernement en faveur de la situation des enfants dans le monde (Execution of the International Convention on the Rights of the Child in France and action by the government to improve the situation of children worldwide). Report to Parliament, Part (V) B. (www.social.gouv.fr/htm/actu/convention/5b.htm
- Conseil de l’Europe, Comité des Ministres. (1998, January, 21). Recommandation No. R(98)1 du Comité des Ministres Aux Etats Membres sur la Médiation Familiale (Recommendation No 4(98)1 of the Committee of Ministers of Member States on Family Mediation). (cm.coe.int/ta/rec/1998/f98r1.htm).
- Dumoulin, L. (2002). Family mediation : Between institutionalisation and its search for an audience (La médiation familiale : Entre institutionnalisation et recherche de son public). Recherches et prévisions, 70, dec. 2002, 5-19.
- Dumoulin, L. (2003). Is family mediation ‘a Utopia which succeeds’ ? From conflict resolving technique to social and political project (“La médiation familiale est-elle ‘une utopie qui réussit’ ? D’une technique de résolution des conflits à un projet social et politique”). Paper presented at conference, Mediation and politics, October 2003.
Faget, J. (2003). La double vie de la médiation pénale (The double life of victim/ offender mediation), Médiations et Sociétés, June, 8-11.
- Fisher,T. (2001).Advice by any other name... Conflict Resolution Quarterly, 19(2), 197-214.
- Lindeperg, M. (2001, July 11). Médiation et conciliation de proximité (Mediation and conciliation of proximity). Report presented to the Conseil économique et social. (www.conseil-economique-et-social.fr/rapporti/01071114/sommaire.htm)
- Llapur, R. (2003, November 12).A mediator’s cross cultural dynamics involving Latinos. www.mediate.com.
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- Sassier, M. (2001), Arguments et propositions pour un statut de la médiation familiale en France. Report presented to the Minister for the Family, Childhood and Handicapped Persons, by Monique Sassier,Assistant Director-General, National Union of Family Associations, www.ladocumentationfrancaise.fr and www.unaf.fr
- Sassier, M. (2003). Conseil consultatif national de la médiation familiale, Médiation familiale - un métier pour l’avenir (Family Mediation - a career for the future). (Available on website www.unaf.fr).
- Stimec, A. (1997). La conscience des limites de la médiation comme moyen de son developpement : la theorie et la déontologie face à la pratique. (Awareness of the limitations of mediation as a means of development : theory and code of procedure versus practice). Bulletin de Liaison du Laboratoire d’Anthropologie Juridique de L’université Paris-Sorbonne No.22, September 1997.
- Stimec, A. (2001, January 31). Avocats et mediateurs :état des lieux et perspectives (Lawyers and mediators, state of play and perspectives). Website http://www.re-for-me.org.
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[1See website : http://www.justice.gouv.fr/presse/reffam4.htm ; and the press release on the Bill relating to the Reform of Divorce (Projet de loi relatif à la réforme du divorce), 9 July, 2003, to be found on website : http://www.justice.gouv.fr/presse/conf090703a.htm

[2See APMF website : www.mediationfamiliale.asso.fr

[3Throughout this paper I have translated from French documents, articles, and reports whenever appropriate. It should
be noted that I have translated rather freely in order that the manner of expression should read naturally in English.

[4See AMPF website : www.mediationfamiliale.asso.fr

[5Judges in Family Matters. France does not have a separate Family Court, but divorce and related matters are heard in the Tribunaux de Grande Instance (courts of major jurisdiction of first instance) by the juges aux affaires familiales, who have special expertise in the area of family law. There are currently 181 metropolitan tribunaux de grand instance and at least one per département (a division of France similar to a shire). Information taken from Legifrance website : www.legifrance.gouv.fr/html/codes_traduits/gloscciva.htm. Also see website : www.cdaj-allier.org.

[6See AMELY website : www.amely.ifrance.com.

[7This certificate was superseded in France by the establishment on 11 December, 2003, of a state diploma in family mediation. An example of the requirements of the former certificate can be seen on the website www.iukb.ch, (website of a Swiss university, Institut Universitaire Kurt Bosch).

[8See CNASMF (now called FENAMEF) website : www.fenamef.asso.fr.

[9AMPF website : www.mediationfamiliale.asso.fr or Perso.wanadoo.fr/mediationfamiliale.

[10See CNASMF (now called FENAMEF) website : www.fenamef.asso.fr

[11caisses d’allocations familiales (CAFs) have no exact equivalent in Australia and constitute a highly integrated
approach by the French Government to family services.The caisses are the customer service centres of the CNAF which pays the French equivalent of the Family Allowance. However, they also provide many of the functions performed by infant welfare centres and drop-in centres here and often have counselling services, accommodation services, medical, and other advice for young mothers. Many now house mediation services. See government website : http://www.justice.gouv.fr/motscles/mcj1.htm. An explanation in English is available on website : www.ambafrance-zm.org/5france/ficheanglais/facts/fam_pol.html.
.

[12The director-general UNAF, Monique Sassier, spearheaded the investigation into the reform of family law legislation to include provisions on the establishment of a diploma of family mediation, which were instituted on 11 December, 2003, and now also heads the new National Council on Family Mediation, established on 12 October, 2001.

[13See the CGT website for details : www.cgt.fr.

[14Bernard Perrut, Deputy of the National Assembly, speaking to the bill he introduced on family mediation on 3 April, 2001. See website : http://assemblee-national.fr/rapports/r2970.asp.The full text of the law can be found on : http://adminet.com/jo/19950209/JFSX9400050L.html.

[16Relationships Australia website : www.relationships.com.au.

[17Court of Australia website : www.familycourt.gov.au.

[18One family association is called in fact,“Association for father mother child”, (Association Père Mère Enfant)

[19Proposition de Loi relative a la médiation familiale, (Bill relating to family mediation), 22 June, 2000.

[20Fédération des Mouvements de la Condition Paternelle. (website : www.fmcp.org).

[21Ségolène Royal, (2001). See website : www.social.gouv.fr/htm/dossiers/index/htm.

[23this gives only the bare outlines of the report, which ranges broadly from the history of mediation in France, to the
philosophy of mediation, its definition, and the need for mediation to adapt to French conditions.The full recommendations were to : pass legislation on family mediation ; enter FM into the Civil Code ; provide a free information session, compulsory for those families whose conflict is severe ; create a National consultative council on family mediation ; create a code of ethics ; make a comprehensive list of legislation and regulations concerned with mediation ; create a duty to inform in public powers ; establish a national list of practising mediators and insert this into the Yellow Pages of the Telephone Books ; organise family mediators in all relevant jurisdictions ; prepare an information booklet ; make family mediation available in situations other than divorce or separation ; provide family mediators with permanent places for mediation ; create a website on mediation ; create a call centre for FM ; provide e-mail address for FM ; define the content of FM training ; create new services and associations for FM ; evaluate the services created ; give
Journal of Family Studies,Vol. 10, No. 1, April 2004 111
family mediators access to other types of mediation such as commercial mediation ; confine victim-offender mediations to family mediators ; organise and finance services or associations of FM ; study a specific service to get an idea of costs and advantages of FM ; draw up an indicative national scale of the costs of FM ; enlarge the field of intervention amenable to legal aid ; keep records of hours of work and costs ; draw up a program to evaluate FM ; hold an international conference on FM every five years ; construct statistical tools to enable certain types of evaluation to take place ; establish departmental maps showing location of family services ; establish a research program ; CAFs to monitor and evaluate the develop of FM ; construct the bases of active family mediation within the European hierarchy.

[25Speech by the Minister for the Family, on the opening of the website (www.famille.gouv.fr) on 29 April, 2003.,

[26Certificat d’aptitude à la fonction de médiateur familial ; Diplôme de la formation continue, du Ministère des Affaires
Sociales.

[27Speech by the Minister for the Family, on the opening of the website (www.famille.gouv.fr) on 29 April, 2003.

[28M. Sassier (personal communication, December 16, 2002).

[29See, for example, the APMF website (www.mediationfamiliale.fr) the FENAMEF website,(www.fenamef.asso.fr),Centre de Médiation et d’Accompagnement Familial (CEMAF), Toulouse, enm.fr.ballou.net.

[30M. Sassier (personal communication, December 16, 2002).

[311999 3.07MF ; 2000 5.93MF ; 2001 5MF (Lindeperg, citing Ministry of Justice figures, p. 153).

[32According to Sassier’s Report, only 10% of couples who separate or divorce use mediation (p. 67). Dumoulin (2003)
puts the figure even lower, based on Ministry of Justice figures.

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