Madiation under the Swedish law of parenthood (Föräldrabalken) : A study of judges' views on mediation

This paper is based on a study seeking answers to questions about how the judges at district courts look at mediation as a way to deal with custody and visitation disputes between parents who do not live together. The questions posed in this study are: When is a mediator appointed? What result do judges expect to mediation? What do the judges say about how a mediator should work? What are the judge’s opinions about the lawyer’s role in these cases? Finally, how do the judges define the children’s needs and how do the judges check that the solution is best for the child? The study also aims to compile theories of mediation, to create new knowledge and to possibly develop new research questions related to mediation. The study is a qualitative case study with law sociological and abductive approach. The interviewed judges all have a lot of experience in family law cases. The interviews were based on an interview guide that was semi-structured and gave the opportunity to ask follow-up questions. The theory part is taken from literature on mediation and legal sources related to mediation. The results of the study show a clear difference between enforcement cases and custody and visitation cases. Furthermore, it appears that the judges certainly have a good understanding of children's needs and a clear ambition to meet the child's need for protection. The judges are inclined to appoint mediator that they know from experience having good knowledge and good results. This is important for them because they do not have the same opportunity to get a closer understanding of the situation of children, where the case is decided by mediation. The result shows that the judges also trust the mediator's professionalism when it comes to the choice of method of mediation. Another of our conclusions is that judges decide on mediation in difficult cases, usually where they have tried most other ways to help parents find a consensus solution. We see that the needs of children in general, in custody disputes, would be accommodated much better if mediation was also used in less complex cases. If that were to happen, we believe that it is also needed more guidance on how the mediation process shall be conducted.