THE RECOURSE TO FAMILY MEDIATION INTO THE JUDICIAL SEPARATION PROCEEDINGS

Anna Bertoni
Università Cattolica del Sacro Cuore, Milano

This research analysed the modalities in which the family mediation is proposed during judicial separation proceedings.

In particular we pursued the following aims: to make a description about the separation process, defining the recurrent main features and "when" and "how many times" judges recur to other extrajudicial interventions (e.g. office technical advice, CTU, etc.). To know the timing ("when") mediation occurs during the judicial separation proceedings.

To reach the previously mentioned aims, we carried out a documental analysis on judicial separation. We used a special survey grid with different sections (features of actual action, structural data about the spouses, data about children, number and quality of memories….).

Into a universe of 1845 documents about judicial separation in process, collected in the office of a big urban centre Court and overseen by 9 judges (three Presidents and six Instructor Judges), we studied a stratified sample of 314 units during the period January 1998-May 1998.

The level of conflict in these causes is fairly high. 86% couples pursued the iter of law Court, 14% couples pursued other integrative of the judicial procedure. Couples who were engaged into the family mediation iter was 3.6% of total sample.

This research is an unique research in its kind, because it is a valuable moment of dialogue between the academic world and the judicial reality of the Milan Court.

Through a collaboration between Catholic University and the Milan Court, we pursed to study the recurrent main features of actual judicial separation proceedings and to verify wheather the family mediation is proposed in theese judicial proceedings.

The aim of the present research was two-fold: first, an analysis of judicial separation proceedings and, second, an analysis of request to mediation or other extrajudicial interventions (e.g. office technical advice, and so on).

The research background reflect the constant increase of marital separations in Italy. It is commonly known that the number of couples with children involved into a judicial separation, is higher and higher. The family mediation appears as a new resource into the hard transition to marital separation. The link between family mediation and judicial process is still little investigated.

Data were collected during the period January 1998 – May 1998 through 1845 documents about judicial separation processes, placed in the office of a Milan Court.

A specific connotation of our sample consisted in being based on documents concerning judicial marital separation in progress.

The possibility of having a directed access to Milan office Court, allowed us to analyse all documents of judicial proceeding.

Within the 1845 documents, we studied a stratified sample of 314 units.

Mostly couples that requested marital separation were not very young couples, had very high levels of conflict and were parental couples.

We studied couples that requested marital separation after a long history of marriage (19 years on average).

Graph 1: wedding age, first child age, separation age.

The marriage and the the first child birth were placed around 21-30 years

for women and 20-35 years for men.

The separation age was variable: we noted that approximately 20% of women and 30% of men requested separation after the 50st years of age.

The average age of husbands and wives was respectively 48 and 44 years. The sample had generally a high level of education; husbands, in particular, had the highest.

The parental couples with teen age children were more than 70% of all the sample. As regards the children custody, we observed that preliminary dispositions of presidential hearing established the custody to the mother in the 85% of cases, and to the father only in the 8.5% of cases. As regards the custody to fathers, we noted that judges give the child custody to same sex parent.

The level of conflict in these causes is fairly high: the intensity of the "acted out" conflict was measured by an analysis of enclosures presented. As regards the number of enclosures presented, hearings per month, penal accusations and other extrajudicial interventions, we created an index of conflict.

Fairly the half of the sample presented enclosures for penal accusations, civil accusations, interventions of the Emergency Room, admissions to hospital.

In the 51% of the cases there were enclosures of economic feature (therefore, the conflict was also focused on financial topics); in the 28% of the cases there were an Emergency Room intervention.

As regards the gender differences, we noted that women seem to be more involved into judicial procedure: almost in all the cases the demand of separation came from women, and the demands of charge presented from women represented 54% of the total demands of charge. Furthermore, the number of memories presented by women was higher than those presented by men.

The recourse to the extrajudicial interventions represents an extra marker of the couples complexity and conflictuality (graph 2).

* they are the office technical advices, respectively for the couple and for an only spouse.

Within the extrajudicial interventions, the couples recurred to office technical advice and to social service guidance very frequently.

The interventions of office technical advice, social service intervention, family mediation were exclusively utilised by 71% of couples that utilised extrajudicial interventions.

The graph 3 points out the modality by which the couples utilised extrajudicial interventions: we noted that the office technical advice and social service guidance were not only most requested interventions, but also utilised with other interventions.

No cases presented recourse to office technical advice and family mediation.

As regards to the choice of recurring to extrajudicial interventions, the total sample was divided into four groups:

graph 4: subsamples

group A ("Palace couples") 85.7% of the total sample. These were couples who exclusively pursued the law-court. Average length of marriage was 19.8 years. Educational level was low to middle. These couples were those with less children or those with more adult children (first child average age: 12.6 years)

group B ("extrajudicial interventions") 14.3% of the total sample. These were couples who utilised extrajudicial interventions to cope with the conflict. Average length of marriage was 14 years. (first child average age: 10.8 years)

Furthermore the group "extrajudicial interventions" was divided into two subgroups:

subgroup C: ("not mediation"). 10.5% of the total sample. Couples who recurred to another services, but not to mediation. . Average length of marriage was 14 years (first child average age: 11.1 years).

subgroup D: ("mediation") 3.8% of the total sample; 12 cases within 314. Average length of marriage was 13.8 years. Within the total sample, this is the group with the highest educational level and the youngest children (first child average age: 9.8 years). In the 63% of the cases the mediation intervention was proposed in the presidential phase. In all cases (except one), it was the judge the one who suggested mediation; in only case father’s lawyer suggested it.

I’ll conclude with a comparison between the four groups, two by two.

"Extrajudicial Interventions Couples", compared to "Palace Couples":

were younger, with higher cultural status and had a greater number of children and younger children. The presence of children, in particular if they are little children, yielded an higher conflictual situation, expecially when they were young.

showed higher conflict (more charge demands, greater number of total hearings, more documents and memories)

had a greater number of custodies to fahers.

included the oldest couples –of the total sample-, but with a shorter length of marriage: they got married later. Data were congruent with the higher educational level that generally postpones the time for marriage.

Had more children and children. The 78% of this subgroup had children under 10 years.

Had a greater number of proceedings with two years or more lenght (the judicial separation is the most prolonged proceeding: 45% of total sample proceedings had a length superior to two years)

Reported more documents and more requests of charge.

In conclusion, the possibility of having a direct access to Milan Court office, allowed us to know all documents of judicial proceeding and represented the first "purchase" of this research and also its own specific feature.

As regards the two aims of this research we can note that:

as regards the judicial proceedings analysis, we defined a judicial proceedings typology, trough documents enclosures, memories, and proceeding length. Four different groups emerged, showing different levels of conflict and different proceeding complexity.

As regards mediation request, we noted that this kind of intervention was rare. It seems like the presidential phase were the privileged moment to require the mediation. In particular, judges were who promoted mediation.

We can confirm the support function of the mediation intervention to the parental couple, in supporting parenthood as well as in containing the couple conflict.

BERTONI, A. (1997), La monogenitorialità: un percorso tra difficoltà e aspetti di crescita, in G. Magistrali, Riscoprirsi genitori, Ed. Unicopli, Milano, 55-106.

CIGOLI, V. (1998), Psicologia della separazione e del divorzio, Il Mulino, Bologna.

MARZOTTO, C., TELLESCHI, R. (1999), Comporre il conflitto genitoriale. La mediazione familiare: metodo e tecniche, Ed. Unicopli, Milano.