SAMESEX COUPLES AND MEDIATION Copyright 2014 Maria Federica

SAME-SEX COUPLES AND MEDIATION Copyright © 2014 Maria Federica Moscati DR. Maria Federica Moscati Avvocatura per i Diritti LGBTI mfmoscati@retelenford. it International Training 25 -27 September 2014 Universita’ di Bergamo

Copyright © 2014 Marica Moscati All rights reserved. Maria Federica Moscati has asserted her right to be identified as the authors of this work and thus assert their moral rights in accordance with the Copyright, Designs and Patents Act 1988 Copyright © 2014 MARIA FEDERICA MOSCATI

AIMS • We provide a general overview of the social and legal background inspiring and motivating same-sex couples to mediate their disputes. • We address the following questions: • What are the reasons of the emergence of mediation in the LGBT (that is, Lesbian, Gay, Bisexual, Trans-sexual) community? • What are the sources of disputes between same-sex partners? Copyright © 2014 MARIA FEDERICA MOSCATI

AIMS • What are the frequent issues that arise during mediation? • How can the mediator, the lawyer and the judge better deal with mediation in same-sex disputes? • Work in progress • Handbook • Your contribution is essential! • Something to consider: judges, lawyers, mediators all together here! Copyright © 2014 MARIA FEDERICA MOSCATI

STRUCTURE • Introduction • Causes of dispute between same-sex partners • Dispute resolution mechanisms adopted by same-sex couples • Judges, lawyers and mediators • Before mediation: is mediation suitable? Copyright © 2014 MARIA FEDERICA MOSCATI

STRUCTURE • During mediation: v How to deal with specific issues: Power Imbalances, stereotypes, domestic violence v How to deal with specific issues: Understanding the new legal and social framework v How to deal with specific issues: language Copyright © 2014 MARIA FEDERICA MOSCATI

STRUCTURE • After mediation: putting the agreement into effect • Focus on Parenting Disputes • Reflections • Case studies Copyright © 2014 MARIA FEDERICA MOSCATI

INTRODUCTION • Same-Sex Partners Argue!!! • Limited data and resources • Presentation derived from the author’s empirical research: thank to all mediators and lawyers who agreed to interview • Mediation used since 1970 s by LGBT community • Mediation as the only alternative to court for same-sex couples Copyright © 2014 MARIA FEDERICA MOSCATI

INTRODUCTION • Changes since 1970 s: differences depending on countries and time • Reasons for choosing mediation: v No Legal Recognition of Same-Sex Unions v Stereotypes and ostensibly homophobic judicial decisions: v Homosexual behaviour in general v Homophobic decisions in child custody cases v Hostility by court officials and lawyers Copyright © 2014 MARIA FEDERICA MOSCATI

INTRODUCTION • Advantages of Mediation: v Less formal; inexpensive and speedy service; creative v Protection from discrimination; Protection of Privacy v Protection of children v Empowerment of LGBT community Copyright © 2014 MARIA FEDERICA MOSCATI

INTRODUCTION • From field-work: “We need to come to an agreement that A respects our nuclear family” “I would like to avoid another court hearing. He has refused to comply with the contact order of the court” “I am here because she has asked me” “We are not married, why should we use mediation? ” Copyright © 2014 MARIA FEDERICA MOSCATI

INTRODUCTION • Current emphasis on mediation • Legal framework: The Directive of the European Parliament and of the European Council of 21 May 2008 on Certain Aspects Of Mediation In Civil And Commercial Matters (2008/52) • Different legal consideration in domestic law • Use of mediation for national, and trans-national family disputes: international child abduction Copyright © 2014 MARIA FEDERICA MOSCATI

INTRODUCTION • Focused reading: • MOSCATI, Maria Federica (2014) ‘Same-Sex Couples and Mediation: A practical Handbook’, available at www. litigiouslove. eu • HANSON, Mark J. (2006) ‘Moving Forward Together: the LGBT Community and the Family Mediation Field’, Pepperdine Dispute Resolution Law Journal, Vol. 7, pp. 295 -312. Copyright © 2014 MARIA FEDERICA MOSCATI

CAUSES OF DISPUTE • Not all sources of disputes represent reasons of break up: main reason for break up is just falling apart • Finance • Children • Abuses • Drug • Open-relationship • Inheritance Copyright © 2014 MARIA FEDERICA MOSCATI

CAUSES OF DISPUTE • Changes depending on legal recognition and social acceptance of same-sex couples: coming out; false expectations; HIV/AIDS; internalising social disapproval • Differences between same-sex couples and heterosexual couples; differences between gay couples and lesbian couples…. if any Copyright © 2014 MARIA FEDERICA MOSCATI

CAUSES OF DISPUTE Focused reading: • ASTOR, Hilary (1995 -96) ‘Mediation of Intra-Lesbian Disputes’, Melbourne University Law Review, Vo. 20, pp. 953 -978. • MOSCATI, Maria Federica (2014) ‘Same-Sex Couples and Mediation: A practical Handbook’, available at www. litigiouslove. eu • Mc INTYRE, Douglas (1994) ‘Gay Parents and Child Custody: a Struggle under the Legal System’, Mediation Quarterly, Vol. 12, pp. 135149. • MOSCATI, Maria Federica (2014) ‘Introduction’ and ‘Fitting the Forum to the Fuss’ in her Pasolini’s Italian Premonitions: Same-Sex Couples and the Law in Comparative Perspective, London: Wildy, Simmonds & Hill Publishing. Copyright © 2014 MARIA FEDERICA MOSCATI

DISPUTE RESOLUTION MECHANISMS USED BY SAME-SEX COUPLES • Mediation • Negotiation by lawyers • Therapy • Family Conference • Counselling • Community-based mediation: San Francisco Community Board Copyright © 2014 MARIA FEDERICA MOSCATI

DISPUTE RESOLUTION MECHANISMS USED BY SAME-SEX COUPLES • Collaborative law • Using different mechanisms before attempting mediation • Mediation for preventing disputes: creating pre-nuptial, and postnuptial agreements Copyright © 2014 MARIA FEDERICA MOSCATI

DISPUTE RESOLUTION MECHANISMS USED BY SAME-SEX COUPLES Focused reading: • FRESHMAN, Clark (1996 -97) ‘Privatizing Same-Sex Marriage through Alternative Dispute Resolution: Community-Enhancing versus Community-Enabling Mediation’, UCLA Law Review, Vol. 44, pp. 1687 -1772. • MOSCATI, Maria Federica (2014) ‘Same-Sex Couples and Mediation: A practical Handbook’, available at www. litigiouslove. eu • MOSCATI, Maria Federica (2014) ‘Introduction’ and ‘Fitting the Forum to the Fuss’ in her Pasolini’s Italian Premonitions: Same-Sex Couples and the Law in Comparative Perspective, London: Wildy, Simmonds & Hill Publishing. Copyright © 2014 MARIA FEDERICA MOSCATI

JUDGES, LAWYERS AND MEDIATORS • All play important roles! • Cooperation…even if we know that we do different things! • Common: HAVE AN OPEN MIND; RESPECT; LISTEN TO… Copyright © 2014 MARIA FEDERICA MOSCATI

JUDGES, LAWYERS AND MEDIATORS • Common: v be honest about your bias v be honest about your sexual orientation v learn about LGBT culture v understanding the new legal framework (national, foreign, and international) v should be gay or lesbian? v inform clients Copyright © 2014 MARIA FEDERICA MOSCATI

JUDGES, LAWYERS AND MEDIATORS • Common: v consider children v don’t push disputants to mediation v attention to language v listen to disputants and all parties involved v use material (such as referral form) respectful of the same gender of the parties Copyright © 2014 MARIA FEDERICA MOSCATI

JUDGES, LAWYERS AND MEDIATORS • Judges: suggestion and not decision; liaise with lawyers and mediators • Lawyers: it’s not a court case, and it’s not purely legal; precise information; listen to clients • Mediators: facilitate communication; impartial; building trust; creating an environment for the parties to feel comfortable and keen to talk; establishing ground rules; considering all issues (including coming out); helping parties to understand underlying issues; balancing power; helping the communication; ensure confidentiality Copyright © 2014 MARIA FEDERICA MOSCATI

BEFORE MEDIATION: IS MEDIATIOIN SUITABLE? • Is the right time to mediate? • Free and well-informed choice of the parties • Screening procedure • When mediation is not suitable: power imbalances; domestic violence; extreme conflict; involuntary participation; unsuitability of dispute Copyright © 2014 MARIA FEDERICA MOSCATI

BEFORE MEDIATION: IS MEDIATIOIN SUITABLE? • Who does what: v lawyers (inform clients about different models of dispute resolution; and liaise with mediators) v judges (inform parties about mediation and other available mechanisms) v mediators (screening test; inform disputants about number of meetings; expenses; who will participate; who is the mediator and whether co-mediation could be a possibility; try to understand whether disputants are ready for mediation) Copyright © 2014 MARIA FEDERICA MOSCATI

BEFORE MEDIATION: IS MEDIATIOIN SUITABLE? • Disadvantages of mediation: v Lack of knowledge v Issues not analysed fully v Manipulation: mediator can manipulate the parties; one party can manipulate the other party v Pressure from the community: harmony v A new closet Copyright © 2014 MARIA FEDERICA MOSCATI

BEFORE MEDIATION: IS MEDIATIOIN SUITABLE? Focused reading: • MOSCATI, Maria Federica (2014) ‘Same-Sex Couples and Mediation: A practical Handbook’, available at www. litigiouslove. eu • ROBERTS, Marian (2008) Mediation in Family Disputes. Principle of Practice, Aldershot: Ashgate Publishing Limited. Copyright © 2014 MARIA FEDERICA MOSCATI

DURING MEDIATION • Disputes and dispute resolution do not occur in a vacuum • Understanding disputants and context…. influence from personal and social factors • Gulliver: “mediation serves a negotiation process; the role of the mediator is understandable only within an understanding of that process” (Gulliver, 1977; Roberts, 2007) • Fuller: “the central quality of the mediation is its capacity to reorient the parties towards each other” (Fuller, 1971) Copyright © 2014 MARIA FEDERICA MOSCATI

DURING MEDIATION • Successful mediation: v respect v impartiality v precise information v voluntary process v confidentiality v all important issues for the parties have been dealt with Copyright © 2014 MARIA FEDERICA MOSCATI

DURING MEDIATION v agreement respectful of ideas and wishes of all parties involved v agreement according to law v children involved if they wish v summary after each meeting • In few words: “achieving a new and shared perception of their relationship” (Fuller, 1971: 305). Copyright © 2014 MARIA FEDERICA MOSCATI

DURING MEDIATION • Models of practice: variety of arrangement; pre-mediation; joint session; caucus…combination of all • Different countries…different models • Co-mediation: two mediators; lawyer and mediator • Lawyers and other professionals can be involved for technical advices Copyright © 2014 MARIA FEDERICA MOSCATI

DURING MEDIATION • From field-work: example of good practice: “Dear Anthony and Frank/Anne and Leila, thank you for attending mediation with me. I agreed to summarise the main points in a letter to you all…. . The letter does not record or create a binding agreement between you. It is intended to facilitate each of you…” “Dear Anthony and Frank/ Anne and Leila, given the transparent nature of mediation I thought it might be helpful for me to write to you all concerning our next proposed mediation meeting. ” Copyright © 2014 MARIA FEDERICA MOSCATI

DURING MEDIATION • From field-work: example of good practice: “It is my intention, as mediator to create a respectful, child centric arena where parents and those involved in relation to particular young person can discuss matters in the hope of reaching decisions about arrangements and behaviours which promote the well-being of the children. ” “I am sorry that our meeting today and mediation more generally has not been more productive for you. Naturally you have your different positions and it has always been difficult for mediation bridge the gap. ” Copyright © 2014 MARIA FEDERICA MOSCATI

DURING MEDIATION Focused reading: • FULLER, Lon (1971) ‘Mediation its forms and functions’, Southern California Law Review, Vol. 44, pp. 309 -339. • MOSCATI, Maria Federica (2014) ‘Same-Sex Couples and Mediation: A practical Handbook’, available at www. litigiouslove. eu • HERTZ, Frederick, WALD, Deborah & Stacey, SHUSTER (2009) ‘Integrated Approaches to Resolving Same-Sex Dissolutions’, Conflict Resolution Quarterly, Vol. 27, No. 2, Winter 2009, pp. 123 -143. Copyright © 2014 MARIA FEDERICA MOSCATI

DURING MEDIATION Focused reading: • GULLIVER, Philip (1977) ‘On Mediation’, in I. Hamnett (ed) Social Anthropology and the Law, London: Academic Press • ROBERTS, Marian (2007) Developing the Craft of Mediation. Reflection on Theory and Practice, London, and Philadelphia: Jessica Kingsley Publishers. Copyright © 2014 MARIA FEDERICA MOSCATI

POWER IMBALANCES, STEREOTYPES AND DOMESTIC VIOLENCE • Is mediation dangerous for same-sex partners? • Sources of power imbalances; age; financial situation; biological tie with the children • Managing power imbalances • Nature of stereotype; educating parties and educating the mediator; importance of differences as resource Copyright © 2014 MARIA FEDERICA MOSCATI

POWER IMBALANCES, STEREOTYPES AND DOMESTIC VIOLENCE • Domestic violence: causes of domestic violence • Mediation not suitable for mediation; screening; stop mediation; training for mediators Copyright © 2014 MARIA FEDERICA MOSCATI

POWER IMBALANCES, STEREOTYPES AND DOMESTIC VIOLENCE Focused reading: • MOSCATI, Maria Federica (2014) ‘Same-Sex Couples and Mediation: A practical Handbook’, available at www. litigiouslove. eu • ASTOR, Hilary (1995 -96) ‘Mediation of Intra-Lesbian Disputes’, Melbourne University Law Review, Vo. 20, pp. 953 -978. • FELICIO, Diane & Michelle, SUTHERLAND (2001) ‘Beyond the Dominant Narrative: Intimacy and Conflict in Lesbian Relations’, Mediation Quarterly, Vol. 18, No. 4, Summer 2001, pp. 363 -376. • TOWNLEY, Annette (1992) ‘The Invisible-ism: Heterosexism and the Implications for Mediation’, Mediation Quarterly, Vo. 9, No. 4, Summer 1992, pp. 397 -400. Copyright © 2014 MARIA FEDERICA MOSCATI

LANGUAGE • How to acknowledge same-sex partners and same-sex parents? • If you are not sure: JUST ASK THE PARTIES! • Not too legal or technical • Not too general Focused reading: • MOSCATI, Maria Federica (2014) ‘Same-Sex Couples and Mediation: A practical Handbook’, available at www. litigiouslove. eu Copyright © 2014 MARIA FEDERICA MOSCATI

UNDERSTANDING THE NEW LEGAL FRAMEWORK • Same-sex couples and same-sex parents do not receive same legal recognition • Be aware of the legal framework in which you operate • Issues of enforceability • If you are not sure ask legal advice Focused reading: • MOSCATI, Maria Federica (2014) ‘Same-Sex Couples and Mediation: A practical Handbook’, available at www. litigiouslove. eu Copyright © 2014 MARIA FEDERICA MOSCATI

AFTER MEDIATION: PUTTING THE AGREEMENT INTO EFFECT • Reaching an agreement: prioritise issues; found common ground; summarise • Check that what the parties plan to include in agreement is made according to law • Legal advice can help to understand what can be included and what cannot me included • Understand whether the agreement will be recognised in other jurisdictions Copyright © 2014 MARIA FEDERICA MOSCATI

AFTER MEDIATION: PUTTING THE AGREEMENT INTO EFFECT Focused reading: • MOSCATI, Maria Federica (2014) ‘Same-Sex Couples and Mediation: A practical Handbook’, available at www. litigiouslove. eu • HERTZ, Frederick (2008) ‘Mediating Same-Sex Disputes: Understanding the New Legal and Social Frameworks’ Part I, Family Mediation Quarterly, Vol. 7, No. 1, Winter 2008, pp. 24 -28 [available at www. mcfm. org ] • HERTZ, Frederick (2008) ‘Mediating Same-Sex Disputes: Understanding the New Legal and Social Frameworks’ Part II, Family Mediation Quarterly, Vol. 7, No. 2, Spring 2008, pp. 7 -12 [available at www. mcfm. org ] Copyright © 2014 MARIA FEDERICA MOSCATI

PARENTING DISPUTES • Who is a parent? v Genetic/biological parents v Legal parents v Psychological and Social parents • Impact of artificial insemination, surrogacy and adoption • Disputes with 2; 4; 6; 8 parents Copyright © 2014 MARIA FEDERICA MOSCATI

PARENTING DISPUTES • All have a voice: difference between what the law says and private arrangements between the parents • Involvement of children: whether and how • Principles: the best interests of the child (article 3 UNCRC 1989); right to participation (article 12 UNCRC 1989) • What should be done: material for children of same-sex couples; child-friendly brochure/books on sexual orientation and gender identity, and on separation of parents Copyright © 2014 MARIA FEDERICA MOSCATI

PARENTING DISPUTES • Guidelines and principles of child related consultation: should be the same for all types of mediation practice Focused reading: • MOSCATI, Maria Federica (2014) ‘Same-Sex Couples and Mediation: A practical Handbook’, available at www. litigiouslove. eu • PERRINS, Richard (2014) “Mediation and Fertility Law”, The Review Issue, Vol. 169, pp. 19 -21. Copyright © 2014 MARIA FEDERICA MOSCATI

REFLECTIONS • Does Mediation Avoid the Problems of the Formal Justice System? • Mediation is not a panacea • Mediation as a new closet • Share your thoughts…. . with us Copyright © 2014 MARIA FEDERICA MOSCATI

CASE STUDIES • Summary: • Antonio and Francesco: money and age • Elva and Maria and Robert and Michael: parenting; children • Elena (who was Pietro before) and Anna: gender reassignment; children Copyright © 2014 MARIA FEDERICA MOSCATI

SELECTED READING • • ASTOR, Hilary (1995 -96) ‘Mediation of Intra-Lesbian Disputes’, Melbourne University Law Review, Vo. 20, pp. 953 -978. FELICIO, Diane & Michelle, SUTHERLAND (2001) ‘Beyond the Dominant Narrative: Intimacy and Conflict in Lesbian Relations’, Mediation Quarterly, Vol. 18, No. 4, Summer 2001, pp. 363 -376. FRESHMAN, Clark (1996 -97) ‘Privatizing Same-Sex Marriage through Alternative Dispute Resolution: Community-Enhancing versus Community-Enabling Mediation’, UCLA Law Review, Vol. 44, pp. 1687 -1772. FULLER, Lon (1971) ‘Mediation its forms and functions’, Southern California Law Review, Vol. 44, pp. 309 -339. • GULLIVER, Philip (1977) ‘On Mediation’, in I. Hamnett (ed) Social Anthropology and the Law, London: Academic Press Copyright © 2014 MARIA FEDERICA MOSCATI

SELECTED READING • • • MOSCATI, Maria Federica (2014) ‘Same-Sex Couples and Mediation: A practical Handbook’, available at : www. litigiouslove. eu HANSON, Mark J. (2006) ‘Moving Forward Together: the LGBT Community and the Family Mediation Field’, Pepperdine Dispute Resolution Law Journal, Vol. 7, pp. 295312. HERTZ, Frederick, WALD, Deborah & Stacey, SHUSTER (2009) ‘Integrated Approaches to Resolving Same-Sex Dissolutions’, Conflict Resolution Quarterly, Vol. 27, No. 2, Winter 2009, pp. 123 -143. HERTZ, Frederick (2008) ‘Mediating Same-Sex Disputes: Understanding the New Legal and Social Frameworks’ Part I, Family Mediation Quarterly, Vol. 7, No. 1, Winter 2008, pp. 24 -28 [available at www. mcfm. org ] HERTZ, Frederick (2008) ‘Mediating Same-Sex Disputes: Understanding the New Legal and Social Frameworks’ Part II, Family Mediation Quarterly, Vol. 7, No. 2, Spring 2008, pp. 7 -12 [available at www. mcfm. org ] Copyright © 2014 MARIA FEDERICA MOSCATI

SELECTED READING • • • Mc INTYRE, Douglas (1994) ‘Gay Parents and Child Custody: a Struggle under the Legal System’, Mediation Quarterly, Vol. 12, pp. 135 -149. MOSCATI, Maria Federica (2014) ‘Introduction’ and ‘Fitting the Forum to the Fuss’ in her Pasolini’s Italian Premonitions: Same-Sex Couples and the Law in Comparative Perspective, London: Wildy, Simmonds & Hill Publishing PERRINS, Richard (2014) “Mediation and Fertility Law”, The Review Issue, Vol 169, pp. 19 -21. ROBERTS, Marian (2008) Mediation in Family Disputes. Principle of Practice, Aldershot: Ashgate Publishing Limited. ROBERTS, Marian (2007) Developing the Craft of Mediation. Reflection on Theory and Practice, London, and Philadelphia: Jessica Kingsley Publishers. TOWNLEY, Annette (1992) ‘The Invisible-ism: Heterosexism and the Implications for Mediation’, Mediation Quarterly, Vo. 9, No. 4, Summer 1992, pp. 397 -400. Copyright © 2014 MARIA FEDERICA MOSCATI

THANK YOU! Copyright © 2014 MARIA FEDERICA MOSCATI