editor@condiscourse.com
Submission
Privacy Policy
Code of Ethics
Newsletter

Anna NÉMETH: Beyond the Courtroom: Exploring Mediation’s Role in Civil Procedure and the Vitality of Family Mediation

by

What immediately springs to mind when one mentions a legal dispute? For many, it automatically brings out pictures of lawyers in expensive suits or a strict judge wielding a gavel. Although litigation is in fact the most widespread method, it is not the only way for parties to settle their disagreements.[1] In cases where individuals are hesitant to exercise their right to apply to the courts, they may seek alternative ways to resolve their issues.[2]

In prior articles, the realm of Alternative Dispute Resolution (ADR) has already been explored. In the field of civil matters in Hungary, ADR traditionally includes arbitration, mediation, and conciliation.[3] In this short essay, the relationship between mediation and civil procedural law is explored. Since 2018, there has been a new Code of Civil Procedure (Pp.) in Hungary: what changes did it bring to mediation?[4] What types of mediation can we encounter today? After a brief overview of this topic, we turn our focus to a specific facet of ADR that extends support to individuals during the more intricate aspects of their personal lives: mediation in family law.

Mediation is a special conflict-handling method, a non-binding process where a neutral mediator tries to bring the parties together to reach an agreement on a resolution.[5] The goal is to come up with a solution that is acceptable to both parties. In most cases, a winner and a loser are declared in court: mediation strives to avoid that and help both participants feel satisfied with the outcome. Recognizing its benefits, civil procedural law has embraced mediation and has undergone changes in this regard over the past decades. To comprehend how legislation has explored the potential applications of mediation—in family law and other areas—, it is necessary to trace back in time.

The 1952 Act on Civil Procedure (rPp.) regulated civil procedure in Hungary and it was in force until 2018 when it was replaced by a new Code of Civil Procedure (Pp.). The rPp. introduced the institution of the pre-trial hearing in divorce cases, which allowed the judge to attempt to mediate a settlement between the parties before the case went to trial.[6]

This preparatory procedure served the dual purpose of preparing the lawsuit and facilitating reconciliation between the spouses. Sadly, the pre-trial hearing did not live up to expectations, as the parties regarded the formal procedure as a necessary formal condition for the subsequent demolition proceedings, therefore the courts’ hearings of these cases often remained superficial and lacking in substance.[7] Therefore the provision was later repealed.[8]

In the framework of the new Code of Civil Procedure, the legislative objective was set out to prevent litigation, and the establishment of procedural arrangements was made to facilitate dialogue between the parties.[9] Attempts to reach an agreement through mediation can be made before an application is lodged. After litigation has already started, the court – if there is a chance of its success, especially if either party requests it – informs the parties about the essence of the mediation procedure, the possibility of using it, its conditions, and related rules regarding the suspension.[10]  Although the use of mediation primarily relies on the free determination of the parties involved in the legal dispute, Act CXXX of 2016 also contains mandatory mediation rules. If the court compels the parties to use mandatory mediation, it simultaneously suspends the litigation proceedings.[11] Currently, under the Civil Code, it is mandatory to refer the parties to mediation only in proceedings related to the arrangement of parental custody for the purpose of safeguarding the best interests of the minor child.[12]

As it has been observed, mediation has long been present, although its role and importance have evolved during legislative periods.[13] Mediation can help parties in various types of cases, but mandatory mediation is exclusively enforced in the specific category mentioned earlier, namely, proceedings related to the arrangement of parental custody. Why is that?

First, it needs to be noted that the arrangement of parental custody is a component of family law. The purpose of mandatory mediation in parental custody cases is multifaceted: it can facilitate cooperation between parents, improve the functioning of visitation arrangements, and ultimately ensure the proper exercise of parental custody.[14] Ultimately, it makes sure that the case, which includes children and stirs up strong emotions, includes a chance to resolve the dispute calmly. The smallest and most basic unit of society is the family, and the law welcomes alternative dispute resolution as an option that might help to keep this unit together, or at least help it dissolve in a graceful, least hurtful manner.[15] This is where family mediation comes in.

Family mediation differs from other forms of mediation in that it deals specifically with, needless to say, family-related issues, such as divorce, child custody, and parenting plans.

In an ideal world, family mediation would be rarely needed. Unfortunately, divorce rates are climbing, and when the divorce process begins, it often turns into a heated battle, causing a great deal of emotional turmoil for those involved.[16] Splitting up a family is burdensome enough, and often engaging in litigation only adds fuel to the fire. A judge lacks the means to reestablish or reopen a constructive dialogue that could empower the parties to amicably resolve their conflict.[17] But a neutral mediator can help to reduce the emotional distress of the parties by fostering an environment of open communication and empathy. Moreover, when we take a broader view, we can observe that the systematic structure of the two methods differs, and mediation as an approach, is often better suited for resolving family-related legal disputes.

It is well known that civil proceedings are extensively regulated, encompassing rules that dictate what, when, and how should be presented and who can or cannot speak up during these proceedings. This often reduces the dispute—one that has the potential to profoundly impact lives—to a mere collection of dry legal facts. It is important to note that the courts cannot be held responsible for this simplification, as it is an inherent part of their role. Nonetheless, this process diverts attention away from the individuals involved and often limits the expression of emotions that may not be directly linked to the case.[18]

Contrarily, the whole structure of mediation is built on the real-life needs of people.  Mediation offers space for the parties to express their feelings. However, it may be useful to clarify the primary orientation of the mediation process, so parties are not moving completely away from the subject, for example by bringing up completely unrelated but unsolved old grudges.[19]

Among the emotional nature of the disputes, family mediation has other unique challenges, such as the power imbalances that may exist between the parties, and the need to consider the best interests of any children involved.

It might not always be easy, but in conclusion, I dare to align with the literature, which suggests that family mediation is often more able to satisfy the needs of the clients and their children than traditional court processes.[20]

Sources

Scholary articles:

Online articles:

Legislation:

  • 1952. évi III. törvény – a polgári perrendtartásról [Act III of 1952 on Civil Procedure]
  • 1957. évi VIII. törvény – a polgári perrendtartás egyes rendelkezéseinek módosításáról [Act VIII of 1957 – amending certain provisions of the Code of Civil Procedure]
  • 2016. évi CXXX. törvény – a polgári perrendtartásról [Act CXXX of 2016 on Civil Procedure]
  • 2013. évi V. törvény – a Polgári Törvénykönyvről [Act V of 2013 on the Civil Code]

Other:

[1] Based on the statistics for 2022, nearly 1,150,000 cases were received by district courts and tribunals in Hungary in first half of 2022

https://birosag.hu/ugyforgalmi-adatok/birosagi-ugyforgalom-2022-i-feleves-adatai

[2] https://constitutionaldiscourse.com/anna-nemeth-right-to-apply-to-the-courts/

[3] Tóth, B. (2019). A mediáció lehetőségei az új Pp alapján. MISKOLCI JOGI SZEMLE, 14(1), 50-59. https://www.mjsz.uni-miskolc.hu/files/8166/8_tothbarbara.pdf

[4] 2016. évi CXXX. törvény – a polgári perrendtartásról (hereinafter: Pp.)

[5] https://legal.thomsonreuters.com/en/insights/articles/problems-and-benefits-using-alternative-dispute-resolution

[6] 1952. évi III. törvény – a polgári perrendtartásról, 280. § (1)

[7] Klisics, “Mediáció családjogi ügyekben,” 45.

[8] Article 93 of Act VIII of 1957, effective (?) from 1 March 1958

[9] The concept of the new Code of Civil Procedure, II. / 2.

https://2015-2019.kormany.hu/download/6/42/40000/20150224%20PP%20koncepci%C3%B3.pdf

[10] Pp., 238. § (2)

[11] Pp., 124. § (1)

[12] 2013. évi V. törvény – a Polgári Törvénykönyvről 4:172. §

[13] Mosten, F. S. (2004). Institutionalization of mediation. Family Court Review, 42(2), 292-303.

[14] Szeibert Orsolya, In: Gárdos Péter, Vékás Lajos (szerk.): Nagykommentár a Polgári Törvénykönyvről szóló 2013. évi V. törvényhez, 4:172. §

[15] Klisics, D. (2019). Mediáció családjogi ügyekben: A gyökerekről és a sajátosságokról. Díké-A Márkus Dezső Összehasonlító Jogtörténeti Kutatócsoport folyóirata, 3(1), 40-54. https://journals.lib.pte.hu/index.php/dike/article/view/955

[16] https://hvg.hu/elet/20220622_valasok_statisztika

[17] Gyengéné Dr. Nagy Márta, D. (2009). MEDIÁCIÓ AZ IGAZSÁGSZOLGÁLTATÁSBAN: Családjogi specialitások [PhD. értekezés, Szeged] https://doktori.bibl.u-szeged.hu/id/eprint/873/1/Nagy_Marta_ertekezes.pdf

[18] Gyengéné Dr. Nagy Márta (2009)

[19] Smithson, J., Barlow, A., Hunter, R., & Ewing, J. (2017). The Moral Order in Family Mediation: Negotiating Competing Values. Conflict Resolution Quarterly, 35, 173-196. https://ore.exeter.ac.uk/repository/bitstream/handle/10871/26761/Smithson%20et%20al%20article%20in%20press%20CRQ%20%20(002).pdf;jsessionid=A33CE14E59C7D6A9F2D3C3A41591C00E?sequence=1

[20] Sondaitė, J. (2006). Family Mediation: Experience of Foreign Countries. Social Work, 5, 24-28.

Anna NÉMETH – She is currently pursuing her master’s degree in law at Eötvös Loránd University, completing her courses with excellent marks. In addition, she is studying international public management BA at the University of Public Service. During her university years she won the New National Excellence Programme in 2020. She worked as an intern for KPMG Legal Tóásó Law Firm and for the Oppenheim Law Firm in Budapest. In her previous research, she has focused on the constitutional status of art and artistic freedom. Through another project she has explored the consumer protection and competition law aspects of the Digital Markets Act. In her ongoing research, she delves into the topic of mediation.

Print Friendly, PDF & Email
General
0

Related Posts

by
by
by