THE IMPLEMENTATION OF FAMILY MEDIATION IN ITALY AND ALBANIA: A COMPARISON STUDY

Klodiana Rafti¹, Fleura Shkembi^2
1PhD Candidate., European University of Tirana, Albania, klodiana.rafti@uet.edu.al
²Dr., European University of Tirana, Albania

Abstract

Family mediation is proposed as an alternative approach to conflict management in couples seeking the divorce, where a third, impartial person, named mediator operates to facilitate the dispute resolution processes. Unlike the approach offered by the procedural system, family mediation is an alternative system created to regulate interpersonal disputes. The purpose of this study is to provide a different perspective on how family mediation has been implemented in Italy which as a member country must at least try to follow guidelines provided by the EU. From the previous considerations of the current Italian legal framework for family mediation, it seems clear that family mediation, as it is, cannot be seen by the public as an effective tool of alternative dispute resolution. The lack of regulatory laws for family mediation – in a civil law jurisdiction where laws are necessary to create, legitimate, and develop legal institutions – negatively affect access to justice for people that cannot afford initiating or continuing a judicial process for years. This study also generates important data regarding the way family mediation has been introduced in Albania, by considering the country’s obligation to adapt its internal laws to those of the EU, although not being a member state yet. In the case of Albania, the Mediation Law is generally in line with all compulsory provisions of the Mediation Directive regarding confidentiality and enforceability of settlement agreements. As regards the discretionary provisions, the Albanian legislator, differently from the Italian legislator, has chosen to include family law within the realm of application of the Mediation Law by extinguishing any visible uncertainties as to whether and how parties can resolve their family issues by mediation. The Albanian legislator has taken a more parties-are-free-to-mediate approach than that of the Italian legislator. There are still no statistics as to the impact that Mediation Law has had over resolution of family disputes in Albania, but the premises for a serious growth in family mediation have been set.  As a conclusion, in terms of mediation in general, and family mediation in particular, what works for one country may not work for another. Trying to provide unifying principles for a multitude of countries is, at the very least, challenging. Having different perspectives from different realities may help in identifying practices that have in common the potential for being successful. Whether mandatory family mediation in its mitigated form or not is one of these successful practices, will depend on a series of factors, such as legal and historical background, legislative will and openness to change. However, having a good and clear regulatory framework is the first step to creating and developing a culture and practice of family mediation.

Keywords: family mediation, conflict, dispute resolution, legal