Mandatory Mediation in Family Disputes: Limitations and Future Foresight in Kosovo
Author | Fatime Dërmaku |
Position | University of Prishtina, Kosovo |
Pages | 25-41 |
European Journal of Economics, Law and Social Sciences
IIPCCL Publishing, Graz-Austria
Vol. 4 No. 2
June, 2020
ISSN 2519-1284
Acces online at www.iipccl.org
25
Mandatory Mediation in Family Disputes: Limitations and Future Foresight
in Kosovo
PhD (C.) Fatime Dërmaku
UniversityofPrishtinaKosovo
Abstract
Theaimofthispaperrelies ondeningthedimensionofmandatory mediationinKosovoin
family disputes in the aspects of the advantages and limitations. The resolution of a family
disputeisa complexprocess asitcarries thelegal aspectsofthe disputewith theemotional
andpsychologicalmaersMediationisconsideredtobeagreattforfamilydisputesasitis
interest-based and it focuses mainly on the future, both of which directly impact the on-going
relationshipsbetween the familymembers Mediation hasbeen supported andencouraged
over the last decades yet its utilization remains scarce Many countries have regulated
mandatory mediation in accordance with the Directive EC in order to increase
theuse of mediation Mandatory mediation in family disputes has been debated by many
authorswith oneside advocatingitas properand benecialwhile theother sidequestions
itsreliabilityintheface ofpowerimbalanceanddomestic violenceMandatorymediationin
Kosovois usedin specicmaers in familylaw andit aims tooer theparties achance to
benetfrommediationasitprovidesafasterandcheaperalternativetothecourtsTheusage
of mediation in Kosovo remains low which is believed to be due to the lack of recognition and
understanding by the parties, lawyers and court professionals.
KeywordsMandatoryMediationFamilyDisputesDomesticViolenceChildrensInterests
Introduction
The increasing rates of divorce and the deriving disputes as the maers of child
custody and the contact of the parents with the child aer divorce are pressing
challenges in most modern societies Nylund Family disputes have their
uniquecharacteristicsastheycarryboththelegalaspectsandemotionalaachments
of a dispute, considering that the parties in dispute remain linked through their
children evenaer the dispute reaches nality McFarlane A contemporary
problem of the judicial system is the overload of the courts with cases which has
led many European countries to seek the utilization of alternative dispute resolution
mechanismsinordertotacklethissituationEspluguesMarquis
The use of mediation as an alternative dispute resolution mechanism has been
onthe raise over thelast decades and it hasbeen found in dierent areassuch as
labordisputescommunityfamilyandinterpersonalconict BushFolger
Recently there has been a shi in the wayfamily disputes are approached in the
judicial system as there is an increased focus on applying informal justice rather than
formalalternatives whichare considered slowermore expensiveand lesslikely to
benetthebestinterestofthechildLynch
Mediationisdenedasafacultativeprocessinwhichthepartiesdisputingengagethe
assistance of an impartial third party, whose role is to help the parties into reaching
Vol. 4 No. 2
June, 2020
European Journal of Economics, Law and Social Sciences
IIPCCL Publishing, Graz-Austria
ISSN 2519-1284
Acces online at www.iipccl.org
26
an agreement by themselves while remaining neutral and with no coercive authority
over the parties Brown Marrio Steek Mediation has been
considereda paradox onthe basis that whileuniversally promoted theutilization
of this process as the dispute resolution mechanism in civil and commercial cases in
EUisconcerninglylowDePaloTheintroductionofmandatorymediationin
specicmaershasbeenacknowledgedasamainfactorcontributingtotheincrease
inthe utilizationof mediationin EuropeDe Palo CanessaAs manyother
European countries, Kosovo has adapted the law in force in accordance with the
European Directive ECDirectivewhich foresees specic maers that are
subjectedto mandatory mediation such as the familymaers of custodyalimony
visitchildsupportanddivisionofmaritalpropertyLawonMediationWhile
Kosovo is rapidly developing in the economic and technological aspects, the social
andcultural norms seem tobe slower inshiingtheir paradigm andassuch they
could be considered a factor that highly impacts the low utilization of mediation with
anemphasisonfamilylawmaers
Mediation in Family Disputes
Family disputes that demand a solution provided by the court or other alternative
dispute resolution mechanisms arise from the breakdown of a family be it married
ornotTheunit ofthefamilyis notastaticone Widmeranditdierentiates
duetochangingconditionsandsocialcircumstances McCarthyHooperGillies
asitcan be seen in the recent shiing of the rates of marriagesanddivorce
withtheformerconstantlydecliningandthe laerincreasingover thelastdecades
StevensonWolfersOnthefaceofthebreakupofafamilywhichrepresented
a safe environment for the parents as well as the children, a crises arises creating
uncertaintyandfearsforthepossibilitiesoflosingthechildrenlegalexpensespublic
embarrassmentandothersocialissuesEmery
Recently there has been an emerging of mediation as an established pathway
towards the dispute resolution of family maers due to the recognized benets
asthe opportunity to resolvedisputes more quickly and lessexpensively than the
traditionallitigation Roberts Mediation dueto its natureofinformal justice
carriesthevalues ofselfdeterminationexibilityandpartyfocusAbel that
have a determinative role to the potential this process has in the resolution of family
disputesand conicts consideringthefact that theinvolvedparties haveongoing
relationships that require mending and reorientation towards each other (Fuller,
The role of mediation in a family dispute, comes across in the legal goals of this
processsuch asthe negotiationof an agreeablelegal bindingselement aswellas
the emotional and psychological goals in helping all parties involved in preserving
and resolving the relationships between the partners or those between parents and
children EmeryThe growing rates of mediation in the resolution of family
dispute are considered to be due to a cumulative process of various causes as the
demise of traditional forms of dispute resolution that comes from the consequences
offailingtomeettheoptimalrequirementsMenkelMeadowandastheresult
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