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1.
This article describes the current state and range of information protection in the growing number of states and Canadian provinces that employ parenting coordination in an effort to reduce repeat custody litigation. The predominant approach—in which what is revealed during the process is not confidential—is analyzed in terms of its compatibility with the parenting coordinator's multiple tasks of educating parents, seeking to facilitate agreements, and, if necessary, providing the court with a report, a recommended decision, or an arbitrated result. Using a case scenario with multiple parts, the article then examines such confidentiality schemes in practice by providing an action‐oriented series of questions that illustrate how much of this topic must be resolved through a parenting coordinator's exercise of discretion in the absence of rule clarity. The article then raises a number of policy questions about whether current parenting coordination confidentiality norms strike the optimal or even the correct balance on information protection and concludes by identifying several policy options that might address these questions. 相似文献
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Linda D. Elrod 《Family Court Review》2020,58(1):26-45
Arbitration, mediation/arbitration and arbitration/mediation allow parties to resolve their disputes usually more expeditiously, privately and with less cost than going to court. While confidentiality is seen as essential to the mediation process and often included in statutes, confidentiality seems less essential to a more adversarial process. Confidentiality provisions rest at the intersection between privacy and self‐determination and the protection of vulnerable parties in family law disputes. This article explores the importance of confidentiality clauses in drafting arbitration and med/arb or arb/med agreements. 相似文献
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Judge Joe Harman 《Family Court Review》2020,58(1):126-141
This paper identifies and discusses the legislative provisions which protect confidentiality in family law proceedings in Australia. The purpose of discussing these protections is two‐fold: firstly, to identify the scope and operation of these protections for Australian legal practitioners; secondly, to allow comparison of Australian protections to those offered in other jurisdictions. This paper will consider duties of confidentiality and evidential privileges in the context of settlement negotiation, mediation, arbitration, lawyer‐client relationships and medical, counselling and other therapeutic relationships. The rationale for the protection of confidentiality in some of these relationships and circumstances, but not in others, will also be considered in an attempt to understand why it is so. 相似文献
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This article will identify the inconsistency and confusion in mediation regarding the definition of mediation, the role of the mediator, and the difference between mediation confidentiality and privilege. Further, it will discuss the confusion and inconsistency in the protection of mediation communication, specifically regarding the definition of mediation communication, the time frame for protected communication, waiver of the protections and exceptions to protected mediation communication. It will provide a roadmap and fact pattern for determining whether mediation communications are protected and if so, the protection they are afforded. Lastly, it will offer recommendations so parties, professionals and the courts may better understand and reap the benefits of mediation. 相似文献
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With the adoption of statutes, policies and administrative guidance since the late 1980s, statutory child welfare agencies around the world have been implementing practice approaches to resolving and addressing child abuse and neglect concerns that involve extended family systems in decision making and planning. One such approach is the family group conference (FGC), enshrined in New Zealand law. This article provides a historical context and describes numerous provisions of the family group conference that protect participants and the proceedings. It then describes applications of FGC‐like approaches in the United States where practice models and policies—not laws—guide the implementation of such approaches. 相似文献
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The Family Mediation Project is a not‐for‐profit means‐tested research initiative at Waterford Institute of Technology, based on an innovative family mediation model developed by Dr Roisin O’ Shea, following her Irish Research Council funded doctoral research. The project, led by W.I.T.’s Dr Sinéad Conneely (coordinator) and Dr Roisin O’ Shea (principal investigator), is test‐running the next iteration in family mediation, embedded in the community, comprising of the most effective elements sourced globally, with a particular focus on innovations in Canada, and is gathering empirical data to evidence outcomes. The final “real world” phase of the project commenced in May 2018, an exciting collaboration between voluntary, statutory agencies and a research institution to further test the effectiveness of this innovative approach on a larger scale at community level in the south Dublin area. This paper will discuss the project innovations and efficacy of the projects objectives, to provide effective mediation as quickly as possible for families and their children, within their community, by experienced family mediators, with hook‐ups and sign‐posting to trusted existing resources, such as the support services offered by the Family Resource Centres, and on‐line and face‐to‐face resources, with the court‐room as an end of pipe‐line solution or emergency forum only. 相似文献
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Families facing separation or divorce in Spain encounter a number of obstacles, including a primarily adversarial and slow justice system, nonspecialized courts and judges, and a lack of resources to help them through the process. Recent legislation at the regional level (autonomous communities) is moving toward emphasizing shared parental responsibility and introducing parenting plans, while at the national level, legislation advances slowly. One of the main challenges professionals are facing in high‐conflict couple separation is protecting children from the effects of being in the middle of their parents’ conflict. Traditional psychological, legal, and social services are insufficient to support parents and protect their children from interparental hostile conflict—which can be exacerbated by litigation, professional intervention, domestic violence, or addiction. This article illustrates, through a case study, the implementation of parenting coordination in Spain. Different jurisdictions in Spain are slowly implementing (co‐)parenting coordination, an in‐depth intervention designed to support these families. The objective is to help families focus on children's needs and follow the court‐approved parenting plans or court orders, reduce relitigation, and improve parental communication and conflict resolution skills. This article analyzes different aspects and challenges relating to the implementation of parenting coordination in Spain. Recommendations are then made to address them. 相似文献
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We examine the ethics of licensed mental health professionals accepting the authority inherent in binding arbitration when acting as parenting coordinators (PCs). PCs execute their duties under the umbrella of their professional identity and standards of practice. Fundamental differences exist in how the law and the behavioral sciences conceive human behavior and authority, in particular, authority by role and authority by status. Ethical concerns arise when licensed mental health professionals accept the authority to render binding judgments and ask clients to surrender their autonomy through informed consent. We offer recommendations for PCs to avoid these ethical complications. 相似文献
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Family Relationship Centres (FRCs) have been described as a centerpiece of Australia's 2006 family law reforms. This paper places these centres in the larger context of the reforms and their commitment to providing community‐based family services in the family law area. The paper also examines the empirical evidence regarding FRCs' use and effectiveness. It notes that while the objectives and intentions of FRCs place considerable emphasis on strengthening family relationships and assisting families to stay together, the centres themselves have only a modest level of direct involvement with intact families. FRCs tend to have strong links with other community‐based family services, many of whom are more engaged with intact families; but it is difficult to gauge their effectiveness in this area. Most FRCs' direct services are aimed at separating families and most of that work involves family dispute resolution (family mediation) and associated services such as screening and assessment and the provision of relevant information. A substantial majority of clients who attend FDR at an FRC reach agreement about their parenting arrangements either at FDR or subsequent to attending FDR. These agreements also tend to hold up in the medium term. A majority of parents believe that at FDR, the child(ren)'s needs were taken into account; the parenting agreement worked for the child(ren); and the parenting agreement worked for them. A substantial proportion of FRC clients come from families that have experienced family violence or other dysfunctional behaviours, and such behaviours reduce the chances of resolving parenting disputes. The paper concludes by suggesting that having been created mainly as a default alternative to legal interventions and court processes, it is likely that a major future strength of FRCs will lie in their emerging capacity to work constructively not only with other relationship services and networks, but with family lawyers and the courts. 相似文献
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Lawrie Moloney 《Family Court Review》2013,51(2):214-223
As a centrepiece of Australia's 2006 family law reforms, the community‐based Family Relationship Centres (FRCs) represented a major development in the Government's commitment to incorporate family relationship services into its family law system. This paper sees FRCs as a logical development of the original conceptualising the Family Court of Australia as a “helping court”. The paper suggests that the aspiration to create a helping court was partially achieved in 1976 via the creation of an in‐house family court counselling service, which was primarily focused not on law and legal principles, but on supporting the ways in which family members were managing the task of redefining relationships. While generally valued by judges and others, this service nonetheless found itself in tension with the Family Court's continued primary commitment to legally informed and adversarially driven negotiation and decision‐making processes. Since 2006, the creation of FRCs has spearheaded a family law system that provides relationship‐focused interventions away from the courts as the default option for most parenting disputes. Consistent with this aim, there is evidence of a diminished percentage of cases now requiring judicial intervention. The 2006 legislation also provides for courts to conduct “less adversarial trials.” Paradoxically, this has occurred alongside unequivocal evidence from the Australian Institute of Family Studies’ evaluation data that judicial officers are dealing mainly with families displaying seriously dysfunctional attitudes and behaviours. The legal challenge in dealing with these cases is for courts to provide child focused, fair and non‐destructive internal processes. In addition, however, it is increasingly clear that to support and help facilitate their decisions, courts also need good working relationships with FRCs and other community based services. FRCs and the 2006 reforms offer the possibility of moving beyond the ideal of a “helping court” to the broader concept of helping family law system. 相似文献
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仲裁发展的障碍问题探析 总被引：8，自引：0，他引：8
我国仲裁法尚未达到立法者预期的目的。其主要原因,一是社会对仲裁的认知明显不够;二是法院对仲裁存在认识上的误区;三是仲裁法在制度设计上存在缺陷;四是不少仲裁机构先天不足,自身问题较多。尽快排除这种障碍,是仲裁发展的当务之急。 相似文献
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Amy G. Applegate 《Family Court Review》2018,56(3):506-512
This is a book review of How Mediation Works: Theory, Research, and Practice by Stephen B. Goldberg, Jeanne M. Brett, Beatrice Blohorn‐Brenneur, with Nancy H. Rogers. How Mediation Works is intended for a wide range of audiences: practicing mediators; aspiring mediators; those who may refer cases to mediation; participants in mediation, including parties and attorneys; managers who facilitate disputes; and those interested in mediation without a specific plan to engage in the practice (who the authors call “mediation learners”). The book is a well‐written, thoughtful, easy‐to‐read, organized, and concise overview of mediation practice. The book is divided into six chapters: (1) conflicts, disputes, and their resolution; (2) dispute resolution processes; (3) the roles of the mediator and the disputing parties at each step of the mediation process; (4) dealing with difficulties; (5) mediation and the law; and (6) suggestions for aspiring mediators. Though not an authority for family law mediation, the book provides many insightful observations and suggestions that would be instructive and helpful to any mediator or individual with an interest in mediation. 相似文献
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论中国国际商事仲裁的法律适用问题 总被引：1，自引：0，他引：1
我国在认定国际商事仲裁协议的效力时 ,应适用或参照《纽约公约》的规定 ,可仲裁的争议事项范围尚有待扩大。我国一些仲裁机构的仲裁规则也已有限地赋予了当事人对仲裁程序法律适用的选择权 ,“非内国仲裁”理论的某些合理内容 ,我们可以考虑借鉴吸收。我国关于国际商事仲裁实体法的适用 ,以有限制的意思自治原则和最密切联系原则为主 ,但不得违背我国强行法的规定。基于我国国际商事仲裁法律适用的现状 ,仲裁法的修改目标之一应该是使我国至少成为对外商有一定吸引力的一个新兴的国际商事仲裁中心 ,使仲裁程序更加简捷 ,以便利当事人 相似文献
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Michael Dunmore 《北京仲裁》2010,(2)
通过仲裁程序来洗钱和进行其他形式的欺诈在仲裁中鲜有发生,但一旦出现将为仲裁员带来一大难题。研究这个领域的学者是极少的,本文将分析他们关于仲裁员调查欺诈的方法以及当欺诈被发现时仲裁员应如何处理的建议。这些学者着眼于若干个独立的关键问题。然而,笔者认为如果能够合并审视这些问题,并据此形成足供仲裁员于面临仲裁中欺诈时的参考,如此整合式的思考,应是更好解决此一难题的方法。本文将关注以下重点:仲裁员的义务、仲裁员处理欺诈的方法、当欺诈被觉察时的处理方法,以及向有关机关汇报欺诈和保密义务的遵守之间的关联。本文将据此作出结论:当一个仲裁员发现当事人有利用仲裁程序来洗钱或者其他形式欺诈的嫌疑时,他应即进行调查,而不应该将问题留待司法机构依照司法程序解决;仲裁员在欺诈发生时,有义务即时调查处理。然而,有些仲裁员对其是否应就仲裁中欺诈即时调查处理,并不确定。因此确定此义务的存在,有助于釐清仲裁员的疑问。笔者认为,当一个仲裁员确信欺诈切实发生时,他应暂停据此协议而为之仲裁程序,并且即时将相关信息通知有关当局。 相似文献
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Task Force 《Family Court Review》2020,58(3):644-657
In 2017, AFCC President Annette Burns (2017–18) commissioned a Task Force, led by Dr. Debra Carter, to review the many changes and developments in parenting coordination that had occurred across the United States, in Canada, and across the world in the approximately 12 years since the 2005 Parenting Coordination Guidelines were released. Though primarily commissioned to update and revise the 2005 Guidelines, the Task Force also identified emerging issues in need of exploration – the use of technology in parenting coordination, parenting coordination as an intervention when intimate partner violence is a component of the dynamic, the importance of multicultural awareness and responsiveness, and the overall impact of the statutes, rules, and regulations that had evolved in significantly varying forms since parenting coordination first presented as an intervention for court‐involved families. The work of the Task Force, including the new (2019) Guidelines for Parenting Coordination, is presented. 相似文献
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《The journal of forensic psychiatry & psychology》2012,23(3):654-665
At a murder trial the prosecution sought leave of the court to call the head of medical services of the prison where the defendant had been remanded in custody. It was the defendant's evidence that he had not been present at the scene of the killing. The head of medical services, first in his report and later in a statement, said, however, that the defendant had told him that he had in fact been present. The court confirmed that no privilege attached to the communication between doctor and patient, the evidence was not obtained unfairly and it was not unfair to admit the statement in evidence. The trial judge approved the practice by medical practitioners of informing prisoners at the earliest opportunity that anything they say to a doctor in prison might be used in evidence, and went on to say that it is preferable to note the practice or its implementation on the prisoner's medical record. This case is used to discuss the case law that has established the rules concerning confidentiality in relation to medical consultations, and to suggest practical measures to avoid the difficulties inherent in the disclosure in legal proceedings of information supplied to medical practitioners who have been asked to report on a patient's condition. 相似文献