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Same-Sex Couples and Mediation in the European Union

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Same-Sex Couples and Mediation in the European Union SAME-SEX COUPLES AND MEDIATION IN THE EUROPEAN UNION EDITED BY MARIA FEDERICA MOSCATI Wildy, Simmonds and Hill Copyright © The editor and authors severally 2015. Litigious Love – Same-sex couples and Mediation in the European Union ISBN 9780854901661 Project coordinator: Maria Federica Moscati Editor: Maria Federica Moscati Authors: Maria Federica Moscati, Vladislav Pektov, Natalija Labavić, Marko Jurčić, Tamás Dombos, József Kárpáti, Anna Lorenzetti, Giacomo Viggiani. Author of the glossary: Anna Lorenzetti Cover Design: Flavia Pellegrinelli All rights reserved. The editor and the authors assert under their moral rights under the Copyright, Designs and Patents Act 1988. Part of this book may be quoted or used as long as the authors are acknowledged. No part of this publication may be reproduced or transmitted for commercial purposes. Published by Wildy, Simmonds & Hill London ACKNOWLEDGEMENTS This book could not be possible without the support of the DG Justice of the EU Commission. Most heartfelt thanks are for the lawyers, mediators and same-sex couples who kindly agreed to share with us their much valued experience. Thanks and appreciations go to all the partners and participants in the project Litigious Love: Same-Sex Couples and Mediation in the EU: Professor Barbara Pezzini, Anna Lorenzetti, Giacomo Viggiani, Maria Grazia Sangalli, Michele De Chirico, Maria Federica Moscati, Borislava Daskalova, Vladislav Pektov, Marko Jurcic, Natalija Labavic, Tamás Dombos, József Kárpáti. Avvocatura per i Diritti LGBTI, University of Bergamo, Hatter Society, Zagreb Pride, Bulgarian Network for Human Rights Education, Scuola Superiore dell’Avvocatura. AUTHORS Tamás Dombos holds a MA in International Relations and Economics from Corvinus University of Budapest and a MA in Sociology and Social Anthropology Central European University. He is currently a PhD candidate at the same department. He has been working for Háttér Society since 2007 and has coordinated several research and advocacy projects including a study on LGBT public policies in Hungary for the European Union Agency for Fundamental Rights in 2013-2014. He teaches courses on social theory and sexual minorities at Corvinus Univesity of Budapest and Eötvös Lóránd University. Since 2012 he serves on the board of the Hungarian LGBT Alliance, and since 2013 he is also a board member at Háttér Society. Marko Jurčić is LGBTIQ activist and Zagreb Pride co-founder where he has been working on projects related to combating discrimination and public advocacy. He has been involved in LGBTIQ activism in Croatia since 2002 and has had since experience in advocacy for hate-crime legislation, Immigrant Law, Same-Sex Life- Partnership Act, National Policy for Gender Equality and the implementation of the anti-discrimination provision of Croatian legal system. József Kárpáti is a lawyer and trainer. He graduated in law in 1994 at the Eötvös Lóránd University and passed his bar exam in 1996. He studied at the French National School for the Judiciary in 1999. He received a degree as a trainer in 2008. From 1997 to 2001 he worked as civil law judge at the Pest County Court, between 2001 and 2009 he worked as an attorney at law. From 2006 to 2010 he was the Director of the Legal Defence Bureau for Ethnic and National Minorities. He served on the Advisory Board of the Equal Treatment Authority between 2005 and 2011, and in 2010 he was the deputy chairman of the Authority. Between 2010 and 2015 he was legal counsel for Civil Media Nonprofit Ltd. He has been a member of the Hungarian Helsinki Committee since 2004. Since 2014 he is a member of the Supervisory Board of the Legal Defence Bureau for Ethnic and National Minorities. He is a founding member of Háttér Society, and currently serves as the Director of its Legal Program. Natalija Labavić is an attorney-at-law from Zagreb. She graduated from the University of Zagreb Faculty of Law and earned her Master’s degree at the University of Zagreb Faculty of Political Sciences. She represents clients before the national courts and other relevant bodies in vast areas of law as well as before the European Court of Human Rights. Throughout long cooperation with the organization Zagreb Pride, she specialized in LGBT human rights. She is also a registered mediator. Anna Lorenzetti is Research Fellow in Constitutional Law and Temporary lecturer in Gender Analysis and Anti-discrimination law, University of Bergamo (Law Department). She holds a Phd in European public and Tax law from University of Bergamo. Her research interests lie on European Anti-discrimination law and Equality, Gender and the Law, LGBTI rights, Social rights. She has published extensively in those areas including the monograph Diritti in Transito, on legal situation of transgender people. She is member of “Research Centre Politesse Politics and Theories of Sexuality”, University of Verona and member of the Editorial Board of Diritto Pubblico comparato ed europeo and of articolo29.it. Maria Federica Moscati holds a PhD from SOAS - University of London. She is a Lecturer at the School of Law at the University of Sussex and a member of Avvocatura per i Diritti LGBTI. Her main research interests lie in issues relating to ADR, Access to Justice, Comparative Legal Studies, and Human Rights with a focus on LGBTI people. Her publications include: Pasolini’s Italian Premonitions: Same-Sex Unions and the Law in Comparative Perspective; and Same-Sex Couples and Mediation: a Practical Handbook. Vladisav Petkov has graduated at Sofia University ‘St. Kliment Ohridski’ (Bulgaria) in 2013 with a Master degree in Law. His study has supported his work in the non-governmental sector on social inclusion of disadvantaged groups and Human Rights education. His publications include: ‘The CHARM factor: A Guide for Your Youth Organisation’, ‘Ideas without Borders: Social Experimentation of Italian Practices in Bulgaria’ ‘Rethinking Inclusion in Youth Work: the CHARM process.’ He is currently enrolled in a Master program in Cultural Anthropology. Giacomo Viggiani is a Research Fellow in Constitutional Law at the Department of Law at University of Bergamo. He holds a PhD in Philosophy of Law and Bioethics. He is the Director of the Research Centre of Rete Lenford, a Member of the Editorial Board of the Journal of Gender Studies and of GenIUS, and External Evaluator for the DG Justice – European Commission. His research interests cover European anti-discrimination law, gender and the Law, LGBTI rights, social and political philosophy, philosophy of law. His publications include La de-costruzione del soggetto. Un’introduzione a Judith Butler, and Dal diritto alla privacy al diritto al matrimonio. L’omosessualità nella giurisprudenza costituzionale statunitense. vi TABLE OF CONTENTS INTRODUCTION ix Maria Federica Moscati CHAPTER I: MEDIATION AND SAME-SEX COUPLES: AN OVERVIEW 1 Maria Federica Moscati CHAPTER II: THE CASE OF ENGLAND 14 Maria Federica Moscati CHAPTER III: BULGARIA 34 Vladislav Petkov • Section One: Description of the Country 34 • Section Two: Legal Protection of LGBT People 38 • Section Three: Developments of Mediation in Bulgaria 41 • Section Four: Same-sex Couples and Mediation 43 CHAPTER IV: CROATIA 55 Natalija Labavić and Marko Jurčić • Section One: Description of the Country 55 • Section Two: Legal Protection of LGBT People 58 • Section Three: Developments of Mediation in Croatia 66 • Section Four: Same-sex Couples and Mediation 71 CHAPTER V: HUNGARY 80 Tamás Dombos and József Kárpáti • Section One: Description of the Country 80 • Section Two: Legal Protection of LGBT People 83 • Section Three: Developments of Mediation in Hungary 93 • Section Four: Same-sex Couples and Mediation 98 vii CHAPTER VI: ITALY 115 Anna Lorenzetti and Giacomo Viggiani • Section One: Description of the Country 115 • Section Two: Legal Protection of LGBT People 122 • Section Three: Developments of Mediation in Italy 128 • Section Four: Same-sex Couples and Mediation 135 APPENDIX I 149 APPENDIX II 151 GLOSSARY 152 Anna Lorenzetti INDEX 155 viii INTRODUCTION Maria Federica Moscati “Marriage as rearrangement of social structure’ (Radcliffe Brown, 1950: 45) “Disputes are not things: they are social constructs” (Felstiner, Abel, Sarat, 1980: 631) “The central quality of the mediation is its capacity to reorient the parties towards each other […] by helping them to achieve a new and shared perception of their relationship” (Fuller, 1971: 325) This book seeks to increase knowledge and understanding of disputes between and the use of mediation by same-sex partners and surrounding issues in selected jurisdictions in the European Union (EU). The jurisdictions analysed are Bulgaria, Croatia, Hungary and Italy. The study also aims to examine the similarities and differences that can be found in mediation between same-sex partners and mediation between opposite-sex partners. In particular, the study answers the following questions: which are the sources of disputes between same-sex partners? To what extent is mediation used by same-sex couples to resolve their disputes? Which are the main issues involved in same-sex couples mediation? Which are the main differences between mediation involving opposite-sex partners and disputes between same-sex partners? In order to answer these questions the study first investigates the sources of disputes between same- sex partners. Secondly, the research looks at manner in which intra-family disputes are resolved through mediation and other dispute resolution mechanisms. Finally, the project analyses selected issues regarding mediation on: power imbalances; mediatory role and style; compulsory mediation; involvement of children. The current literature on the use of mediation by same-sex couples concentrates mainly on United States of America and Australia, and has primarily focused on the reasons for same-sex couples to adopt mediation, on the tensions between the family mediation field and LGBT community, on some specific issues that the mediation process presents and on the challenges for the mediator (Hertz et al, 2009; Hanson, 2006; Barsky, 2004; Felicio and Sutherland, 2001; Emnett, 1997; Freshman, 1997; Gunning, 1995; Astor, 1995; McIntyre, 1994; Bryant, 1992).
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