The implementation of mandatory family mediation schemes in the context of the Istanbul convention

Abstract

The global rise in domestic violence has promted international preventive efforts such as the Istanbul Convention, which bans mandatory alternative dispute resolution for all forms of violence. This created a challenge in aligning public justice policies and balancing mandatory mediation schemes with adequate victim protection. This article seeks to offer an in-depth analysis of the main concerns in the implementation of mandatory family mediation in domestic violence cases in the context of the Istanbul Convention, and to provide an overview of some of the practical solutions that can be deployed to overcome these issues. This research commences with a review of the existing scientific literature and an overview of international regulation in the field of the application of mediation in the context of domestic violence, focusing primarily on the provisions of the Istanbul Convention. This is followed by a comparative study that considers the national legislation of Lithuania, Bulgaria and Ukraine in order to highlight differences in the application of mediation in domestic violence cases and to determine how the Istanbul Convention has influenced mediation practices in the selected countries. This revealsthat compliance with the prohibition on mandatory mediation in the Istanbul Convention has an impact on the level of protection afforded to domestic violence victims, but does not guarantee it per se, thus contributing to uncertainty regarding how victims will be treated during mediation. Additional guidelines, standards or protocols should be employed to assist mediators in determining domestic violence and in tailoring the mediation process accordingly. It is therefore strongly suggested that, to ensure effective measures for the protection of victims of violence, additional national legislation should be adopted to screen for signs of violence in mandatory mediation and to propose specific approaches to the necessary steps to be taken in mediation in the context of domestic violence.