The Seimas Ombudsman submitted an opinion to the Committee on Human Rights regarding the entry into force of compulsory mediation in family disputes

6 February 2020

The Seimas Ombudsman submitted an opinion to the Committee on Human Rights regarding effective procedure for the application of mediation in family disputes. In his observations on the changed procedure for the out-of-court settlement of disputes, the Seimas Ombudsman acknowledged the need to improve the provisions of the Law on Mediation, as the current procedural framework is not fully clear and the space in the regulatory procedure left for interpretation can have a particularly negative impact on victims of violence.

In presenting his opinion, the Seimas Ombudsman first of all noted that a victim of domestic violence expects state support by providing him/her with legal instruments to protect his/her interests and ensure security. It is noteworthy that when mediating in cases of domestic violence, the victim not occasionally loses self-confidence and the perpetrator acquires an advantage over the victim; therefore, the victim's chances of reaching a peaceful agreement with the perpetrator are extremely low.

“The purpose of mediation is the consensus of the parties which may be reached only when the parties to the dispute have the same negotiating powers and an impartial mediator helps to reconcile their powers and interests. It is particularly difficult to achieve this if there is violent relationship between the parties and the perpetrator gains the advantage due to the greater emotional stability, better preparation to participate and his/her  dominant force,” observes the Seimas Ombudsman Augustinas Normantas.

 The Seimas Ombudsman also had doubts as to whether the term “compulsory mediation” used in the Law would be understood in a unified manner and whether it would be interpreted more broadly. The Seimas Ombudsman noted that clear and unambiguous regulation of mediation peculiarities in family disputes is particularly important in order to protect the interests of the litigant, who has been the victim of domestic violence, and to ensure the possibility of refusing to participate in mediation at any stage.

“It is important to understand that, from a human rights perspective, it is the duty of the State to ensure that statutory powers do not restrict human rights and freedoms beyond what is necessary to achieve legitimate objectives; therefore, legislative provisions must be specific, unambiguous and in particular when they are linked to possible restrictions on human rights and freedoms,” notes the Seimas Ombudsman Augustinas Normantas.

In presenting his opinion, the Seimas Ombudsman also drew the attention to the extremely unfavourable position in the international community regarding the use of compulsory mediation in family disputes where there is violence. He also noted that if states still choose to use mediation in family disputes, they are encouraged to take steps to provide specific criteria for mediation in such cases in order to identify and protect the victim of domestic violence in a timely manner.

 The Seimas Ombudsman observed that after the introduction of compulsory mediation in family disputes, it is important to establish a rigorous selection of cases system in order to determine which cases may be suitable for meditation and which not. Likewise, cases involving physical and psychological past and present violence should be considered and the risk of such behaviour in the future should be assessed. That is why it is appropriate to include in the mediator training program the issue of identifying the signs of domestic violence. 

The opinion underlined the need to improve the provisions of the law so as to make it clear that in cases of domestic violence, mediation would not be mandatory in family disputes. It was also proposed to clarify the provisions of mediation, which use the term "compulsory mediation", to make it clear to all that in statutory cases the parties to a family dispute are obliged not to participate in mediation in order to reach a common agreement, but only to initiate (start) a mediation process.

The Seimas Ombudsmen protect a person‘s right to good public administration securing human rights and freedoms, and supervise fulfilment by state authorities of their duty to properly serve the people. The Seimas Ombudsmen also conduct national prevention of torture in places of deprivation of liberty in accordance with the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Seimas Ombudsmen's Office is a national human rights institution accredited by the United Nations.

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