Towards mandatory ADR in separations. An approach de lege lata and de lege ferenda
PhD student: Mrs C. Jaspers
Promotors: E. Lankcsweerdt, Mrs Dr C.H.H. Declerck
Duration: 18/9/2017 - 17/9/2021
In Belgium, divorce and separation are omnipresent. These separations might have a negative impact on the partners and the children when they turn into high-conflict separations. Legal proceedings are still the main manner of solution for conflict during and after a separation. However, a legal procedure is not a panacea. Alternative dispute resolution might seem like a more appropriate method to solve conflicts concerning separation. Despite her many benefits, ADR is not used in accordance to its benefits in practice on a voluntary basis. In Belgium, the law of 18 June 2018 inserted an article which allows the judge to send parties to mediation on a mandatory basis, but only if at least one of the parties agrees to it. Research concerning mandatory ADR in Belgium thus seems necessary. The main research question will be: (How) can a mandatory ADR-attempt in separation situations in Belgium be framed legally, with the goal to implement this into practice in the most optimal way? First of all, current causes to high conflict triggers will be pointed out from a legal, practical and psychological viewpoint. Throughout the research, the national, European and international legal rules will be kept in mind. Secondly, a legal framework will be designed for a mandatory ADR-attempt, based on comparative analysis of already existing mandatory ADR-methods in family law and on qualitative research, i.e. in-depth interviews and focus groups of professionals actors in family law and separation. The qualitative research is key to implement a framework that can work optimally in practice. Based on this framework, recommendations will be made as well for further implementation.