Litigation & ADR - Lawyer Monthly https://www.lawyer-monthly.com Legal News Magazine Fri, 19 Jul 2024 10:55:09 +0000 en-GB hourly 1 https://wordpress.org/?v=6.6 https://www.lawyer-monthly.com/wp-content/uploads/2022/10/cropped-LM-32x32.png Litigation & ADR - Lawyer Monthly https://www.lawyer-monthly.com 32 32 What is a Medical Negligence Duty of Care Case? https://www.lawyer-monthly.com/2024/07/what-is-a-medical-negligence-duty-of-care-case/ https://www.lawyer-monthly.com/2024/07/what-is-a-medical-negligence-duty-of-care-case/#respond Tue, 02 Jul 2024 08:35:43 +0000 https://dev.lawyer-monthly.com/2024/07/what-is-a-medical-negligence-duty-of-care-case/ The role of the Consultant General and Colorectal surgeon expert witness extends to advising solicitors, insurers, and leading counsel on all aspects of causation and condition involving individuals suffering afflictions to the abdomen, particularly the lower part of their gastrointestinal system. 

As an expert in General and Colorectal surgeon Mr. Rakesh Bhardwaj trained at Bristol University (1988-1993) and undertook a Research Higher Degree in the field of Colorectal Surgery at University of London and was awarded an MD. He undertook Higher Specialist Training in London and South-East England.

He completed his training with Specialist Surgical Fellowships at St Marks Hospital and with Ethicon Endosurgery. He is a Fellow of the Royal College of Surgeons of England and currently examines for the College. He developed an interest in Medical Law and recently obtained the award of LLM with a focus on clinical negligence.  Although he deals with conditions of the abdomen and has extensive experience in elective and emergency abdominal surgery, his main interest is in the field of colorectal surgery. This includes diagnosis and treatments for colorectal cancer, inflammatory bowel disease, functional bowel disease and anorectal pathology.  

Please introduce yourself to the readers of Lawyer Monthly and what is your professional background and education? 

My name is Rakesh Bhardwaj. I currently work in the NHS as a Consultant General and Colorectal Surgeon and have been in this position for fifteen years. 

I trained in medicine at Bristol University and graduated as a Bachelor of Medicine and a Bachelor of Surgery in 1993. I undertook by basic surgical training in Manchester and achieved admission as a Fellow of both the Royal College of Surgeons of England and Edinburgh in 1998. I then undertook a period of surgical research in colorectal surgery with the University of London and was awarded a higher degree by research, becoming a Doctor of Medicine. My Higher Specialist Surgical Training was undertaken in London and the Southeast of England and achieved entry to the Specialist Register along with an award of an FRCS in General Surgery.

After this I undertook a specialist fellowship at St Mark’s Hospital. This was followed by a sponsored laparoscopic fellowship with Ethicon Endosurgery in Plymouth. I joined the staff at Darent Valley Hospital as a Consultant Surgeon in 2009. I am currently Lead Clinician in Colorectal Surgery. 

I have chaired the Colorectal Cancer Multidisciplinary Meeting for twelve years and recently became an Examiner for the Royal College of Surgeons of England. I have a mature medicolegal practice and in order to improve my practice I studied medical law and achieved in 2023 the award of LLM with an interest in medical negligence. I have published several articles in the Expert Witness Journal in the fields of Consent and Gross Negligence Manslaughter.  

What are your areas of expertise and professional experience as a General and Colorectal Consultant Surgeon? 

Most of my practice centres around the diagnosis and treatment of Colon and Rectal Cancer. However, I have extensive experience in inflammatory bowel disease and benign colorectal disorders. I also have a commitment to general abdominal conditions such as hernias. As part of my emergency surgical commitment, I undertake all forms of emergency abdominal surgery.  

How did you become an expert witness specialising in General and Colorectal Surgery? 

I always had an interest in medical law. As I became more interested, I naturally fell into becoming an expert witness. I find it challenging but enormously rewarding. I find it also very useful in my current working life as a surgeon to have such exposure. 

Most of my experience is self-taught, but I find the support from medicolegal organisations very helpful. I try and keep up to date by attending medicolegal conferences and refreshing my skills with courses. Working towards legal deadlines with a current busy surgical practice keeps me very busy.  

What type of services do you provide? 

Most of my work consists of reports related to Medical Negligence. I accept instructions from Solicitors directly and Companies that are engaged by solicitors. I also work with NHS trusts and with NHS resolution. I thus conduct Screening, Breach of Duty, Causation and Condition and Prognosis Reports. I am happy to look at Medical Records alone or see patients directly in Harley Street, London or by video consultations when appropriate. I have recently expanded my practice and now consult in Manchester.  

What types of organizations or cases have you provided services to or assisted and in which areas? 

I have provided services for NHS Resolution, UK expert Medical, e-medical, Doctors Chambers, Medreport, UK independent Medical, S K Medical Practice and Bodycare Clinics.

I have assisted in the field of General and Colorectal Surgery. Specifically, I have dealt with the diagnosis and treatment of Colon and Rectal cancer and Emergency Surgical Conditions. I have also dealt with many Personal Injury cases causing abdominal injuries.  

What do you have to do as part of this role? 

I review medical records predominately and try and sift out the features that are salient to the legal instructions. I occasionally see patients in my chambers to assist in this process.  

What are the challenges with providing expert medico legal opinion on matters involving General and Colorectal Surgery? 

It is essential to provide a balanced opinion. I think clinical experience is essential but also understanding the nuances of modern medicine is vital. An academic background helps to provide supportive evidence. Ultimately, providing a sound opinion is the aim, and this can take considerable thought. Each case is unique.  

The working relationship between an expert and their instructing solicitor is a significant one. What are the challenges that experts face when working with instructing solicitors, and how do you overcome these? 

Communication is the key. All medicolegal work is about providing high quality reports within the terms that are agreed. I find it helpful to speak to the instructing solicitors sometimes get a deeper understanding of the instructions. Most instructing parties are understanding that medicolegal experts also have busy clinical commitments and are accommodating regarding looming deadlines. Time management is an essential skill.  

What is the most interesting case you have worked on? 

I find delays in cancer diagnosis specifically during the pandemic period some of the most interesting cases I have worked on. The pandemic created an extra-legal dimension to the cases.  

What do you consider the essential elements for a top-rated expert report? 

I find that the essential elements for medicolegal experts are discipline and organisation. I find that it is very useful to set aside protected peaceful time away from a busy clinical practice to write and more importantly think about what is required in each case. Extensive experience in inflammatory bowel disease and benign colorectal disorders. I also have a commitment to general abdominal conditions such as hernias. As part of my emergency surgical commitment, I undertake all forms of emergency abdominal surgery.  

How did you become an expert witness specialising in General and Colorectal Surgery? 

I always had an interest in medical law. As I became more interested, I naturally fell into becoming an expert witness. I find it challenging but enormously rewarding. I find it also very useful in my current working life as a surgeon to have such exposure.  Most of my experience is self-taught, but I find the support from medicolegal organisations very helpful. I try and keep up to date by attending medicolegal conferences and refreshing my skills with courses. Working towards legal deadlines with a current busy surgical practice keeps me very busy.  

What type of services do you provide? 

Most of my work consists of reports related to Medical Negligence. I accept instructions from Solicitors directly and Companies that are engaged by solicitors. I also work with NHS trusts and with NHS resolution. I thus conduct Screening, Breach of Duty, Causation and Condition and Prognosis Reports. I am happy to look at Medical Records alone or see patients directly in Harley Street, London or by video consultations when appropriate. I have recently expanded my practice and now consult in Manchester.  

What types of organizations or cases have you provided services to or assisted and in which areas? 

I have provided services for NHS Resolution, UK expert Medical, e-medical, Doctors Chambers, Medreport, UK independent Medical, S K Medical Practice and Bodycare Clinics. I have assisted in the field of General and Colorectal Surgery. Specifically, I have dealt with the diagnosis and treatment of Colon and Rectal cancer and Emergency Surgical Conditions. I have also dealt with many Personal Injury cases causing abdominal injuries.  

What do you have to do as part of this role? 

I review medical records predominately and try and sift out the features that are salient to the legal instructions. I occasionally see patients in my chambers to assist in this process.  

What are the challenges with providing expert medico legal opinion on matters involving General and Colorectal Surgery? 

It is essential to provide a balanced opinion. I think clinical experience is essential but also understanding the nuances of modern medicine is vital. An academic background helps to provide supportive evidence. Ultimately, providing a sound opinion is the aim, and this can take considerable thought. Each case is unique.  

The working relationship between an expert and their instructing solicitor is a significant one. What are the challenges that experts face when working with instructing solicitors, and how do you overcome these? 

Communication is the key. All medicolegal work is about providing high quality reports within the terms that are agreed. I find it helpful to speak to the instructing solicitors sometimes get a deeper understanding of the instructions. Most instructing parties are understanding that medicolegal experts also have busy clinical commitments and are accommodating regarding looming deadlines. Time management is an essential skill.  

What is the most interesting case you have worked on? 

I find delays in cancer diagnosis specifically during the pandemic period some of the most interesting cases I have worked on. The pandemic created an extra-legal dimension to the cases.  

What do you consider the essential elements for a top-rated expert report? 

I find that the essential elements for medicolegal experts are discipline and organisation. I find that it is very useful to set aside protected peaceful time away from a busy clinical practice to write and more importantly think about what is required in each case. 

 

Email: lindsaymedicolegal@protonmail.com 

Tel: 07388 187231 

Published by: www.lawyer-monthly.com - July 2nd, 2024

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Litigation and Dispute Resolution in Brazil https://www.lawyer-monthly.com/2024/06/litigation-and-dispute-resolution-in-brazil/ https://www.lawyer-monthly.com/2024/06/litigation-and-dispute-resolution-in-brazil/#respond Tue, 04 Jun 2024 12:43:49 +0000 https://dev.lawyer-monthly.com/2024/06/litigation-and-dispute-resolution-in-brazil/ How common is commercial litigation as a method of resolving high value complex disputes in Brazil? 

Litigation remains the predominant method for resolving commercial disputes in Brazil. This preference can be attributed to its cost-effectiveness, a well-established appellate system, and the creation of specialized courts dedicated to Business Law issues in regions experiencing high demand, such as São Paulo/SP, Curitiba/PR and Rio de Janeiro/RJ, which necessitates swift resolutions.  

What is the legal framework governing commercial litigation? Is your jurisdiction subject to civil code or common law? What implications does this have? 

Brazil operates under a civil law system, anchored by its Federal Constitution enacted in 1988, which sets forth essential principles including free competition and free enterprise. This legal structure is further supported by several key statutes: the Economic Freedom Act (Law 13874/2019), the 1976 Corporations Act, the 2002 Civil Code, and the 2015 Civil Procedural Code. Additionally, case law has become increasingly significant due to the establishment of a system of binding precedents by the Supreme Court, ensuring consistency and predictability in the interpretation of the Federal Constitution.  

What key issues should a party consider before bringing a claim? 

Before initiating legal proceedings, parties should verify the possibility of reaching an agreement with the opposing party, considering the lengthy duration required to obtain a final judicial decision. This is due to the protracted nature of Brazil’s appellate system, which, despite being well-established, is slow due to the vast number of ongoing legal cases. Additionally, parties should consider associated costs, such as the monetary correction of the debt and the accrual of default interest. It is worth mentioning that the party may request in advance to produce evidence, so as to analyze the convenience of an agreement or to evaluate the chances of success of a lawsuit. It may also request preliminary injunctions (precautionary or anticipatory on the merits), which may be utilized to achieve an advantage for reaching an agreement.  

What is the judicial attitude towards mediation in Brazil? 

In the current Brazilian legal system, the judiciary holds a favorable attitude towards mediation. This is reflected in the legal framework that encourages the use of alternative dispute resolution methods to alleviate the burden on the courts and expedite the resolution process.

The 2015 Brazilian Civil Procedure Code, for instance, underscores the importance of mediation and conciliation as primary tools in dispute resolution.

Courts often promote these methods early in the litigation process, recognizing their effectiveness in fostering amicable settlements and reducing judicial backlog. This judicial endorsement is aligned with broader national policies aiming to enhance legal efficiency and access to justice.  

What is the process of mediation in Brazil? 

In Brazil, the mediation process is structured to provide an efficient and effective alternative to traditional litigation. The process typically unfolds as follows: 

  1. Initiation: Mediation can be initiated voluntarily by the parties or suggested by a judge during ongoing litigation. Parties agree to mediate and select a mediator, either from a list provided by the court or an independent professional meeting the qualifications set by the Brazilian National Council of Justice.
  2. First Meeting: The mediator organizes a first meeting with all parties involved to explain the rules and principles of mediation, such as confidentiality, neutrality, and voluntariness. This meeting sets the stage for open communication and collaboration.
  3. Exploration: During subsequent sessions, the mediator facilitates discussions to allow each party to express their interests, concerns, and positions. The mediator helps clarify the issues and encourages the parties to explore potential solutions. This phase is crucial for understanding the underlying needs and objectives of each party.
  4. Negotiation: As parties better understand each other’s positions, they move towards negotiating a settlement. The mediator assists in brainstorming and evaluating possible outcomes, guiding the parties towards a mutually acceptable solution.
  5. Agreement: If the parties reach an agreement, the mediator helps draft the settlement terms, which are then reviewed and signed by the parties. This agreement can be made enforceable by a court order if necessary.
  6. Closure: If mediation concludes without an agreement, the parties may proceed with litigation or explore other forms of alternative dispute resolution (e.g. arbitration).

How are mediators chosen and what is the role of the mediator? 

In the Brazilian legal system, according to Federal Law 13.140/2015 mediators are typically chosen either by agreement between the parties involved or appointed by the court if mutual agreement cannot be reached. The selection process is facilitated by the presence of registered mediators who meet specific qualifications as outlined by the National Council of Justice, which ensures that they have undergone appropriate training and adhere to a set of professional standards.  

The role of the mediator in Brazil is to act as a neutral facilitator in the dispute resolution process. Their primary function is to assist the parties in understanding the issues at hand, exploring potential solutions, and negotiating a mutually acceptable agreement.

The mediator’s objective is to guide the communication process in a way that promotes understanding, addresses interests and needs, and moves the parties towards a voluntary and informed resolution of their conflict.  

About Priscila Kei Sato 

I am Priscila Kei Sato, a Brazilian attorney, admitted to the bar in 1998. My professional focus is on managing significant and complex litigation cases. Since 2006, I have had the honor of serving as a partner at Arruda Alvim, Aragão, Lins & Sato Advogados. In this capacity, I have dedicated myself to enhancing my expertise and contributing to the success of our firm. My commitment is to deliver strategic insight in every legal challenge, ensuring our clients receive the highest caliber of legal representation.  

About Arruda Alvim, Aragão, Lins & Sato 

Our firm, Arruda Alvim, Aragão, Lins & Sato renders legal consulting and litigation services to Brazilian and foreign companies, by means of administrative and judicial measures in various areas of law, through its qualified and experienced team of attorneys. It stands out due to its elevated technical performance, personalized client service with direct engagement from the partners, handling high-complexity litigation with large social and economic impact, namely in class actions, direct actions of unconstitutionality, and procedures for the standardization of case law.  

Priscila Kei Sato 
Arruda Alvim, Aragão, 
Lins & Sato Advogados 
Tel: +55 (41) 3301-3800 
Fax: +55 (41) 3301-3801 
Email: priscilasato@aalvim.com.br 
www.aalvim.com.br 

 

Published by: www.lawyer-monthly.com - June 4th, 2024

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Family Law in Germany https://www.lawyer-monthly.com/2024/06/family-law-in-germany/ https://www.lawyer-monthly.com/2024/06/family-law-in-germany/#respond Tue, 04 Jun 2024 10:16:11 +0000 https://dev.lawyer-monthly.com/2024/06/family-law-in-germany/ Please introduce yourself to the readers of Lawyer Monthly. 

We are specialized lawyers for family law and partners of the law firm Pilati + Fritz Rechtsanwälte.  

For many years, we have passionately defended the rights and interests of our clients, particularly in complex and often emotionally stressful matters involving family law. 

With our extensive experience and dedicated team, we support our clients in overcoming family-related challenges and accompany them on their way to a changed future.  

There is hardly any other legal area in which critical issues clash with deep emotions as intensively as in family and inheritance law. In addition to providing our clients with strong legal assistance, we consider it to be our duty to offer tailored advice and to understand their individual needs. In every case, we endeavor to deliver the best possible solution. Divorce proceedings can take a long time and be very painful and costly. Therefore, an amicable settlement is advisable. Very often, such a settlement can be reached.  

What is your professional background and education? 

We both hold a law degree and have completed numerous training courses in family law. Through our many years of practice and specialization in this field of law, we have gained a strong foothold in Germany and abroad. Our law firm attaches great importance to ongoing further training and interdisciplinary cooperation. 

Kristina comes from a family of lawyers. Her father, Dr. Albert Paul, was a well-known and respected lawyer and notary in Frankfurt am Main. 

Kristina has worked as a notary for many years and also holds a degree in humanistic psychology. 

I (Alma) have been with the firm for 16 years, including 10 years as a lawyer, four years as a partner and now as a managing partner. I will continue the law firm and its tradition. Under the long-standing mentorship of Kristina, I was well-prepared to take over the law firm. In our law firm, I take care of family cases with a foreign element, in which child custody matters are in the foreground.  

From the very beginning, we have served major clients throughout Germany, working at a high level. We complement each other perfectly. Kristina has benefited from my experience, which I gained as a research assistant at the University of Frankfurt am Main at the chair of Prof. Dr. Guido Pfeifer. Thus, she has been able to leverage scientific, systematic work and current case law in the law firm. From the outset, we have complemented each other, operating on the same wavelength, and have secured an orderly succession. 

We have access to a large network and can, therefore, help our clients in all situations.  

What type of services do you provide?  

Our law firm provides comprehensive legal advice and representation in all areas of family law, including the following: 

  • Divorces and separations
  • Custody and alimony disputes
  • Marriage contracts and asset protection
  • International family law issues
  • Estate planning and inheritance law

Why did you decide to specialize in family law? 

Family law matters can be stressful for those involved and require particular sensitivity and expertise. We have chosen this area of law in order to assist our clients in difficult times and exceptional situations and to support them in resolving their family conflicts. The opportunity to help people and give them a perspective for the future motivates us in our daily work.  

How does child custody work in Germany? 

This is a very complex topic. In Germany—unlike in many other legal systems—distinction is made between custody and contact and access rights. Custody and, contact and access rights are independent of each other. Thus, a parent who does not have custody still has a right to contact with the child. 

Under normal circumstances, custody is jointly exercised by both parents. As far as the establishment of parental custody is concerned, distinction is made as to whether or not the parents are married to each other at the time of the child’s birth. 

If the parents are married at the time of birth, they are entitled to joint parental custody.  

If the parents are not married at the time of the child’s birth, they are entitled to joint parental custody 

  1. if they declare that they wish to assume joint custody and make declarations of custody,
  2. if they marry each other or
  3. if the family court grants them joint parental custody.

If joint parental custody is on hand, both parents have equal rights and make joint decisions for the benefit of their children. 

In the event of separation and divorce of the parents, joint parental custody generally remains in place. If the parents live separately, both parents jointly exercise parental custody, though the parent with whom the children usually reside has sole decision-making authority in matters of daily life. Everyday care includes all matters that arise in daily life, e.g. school life including participation in day trips, picking up the child from daycare or school, and so on. In matters of considerable importance for the children, such as determining their place of residence, school enrollment, enrollment and deregistration from kindergarten etc., the parents must make a joint decision. If they are unable to do so, the family court may, upon application, transfer the decision-making authority regarding the matter on which they are unable to agree to one of the parents. 

Parental custody may be withdrawn from one parent by the court and transferred to the other parent for sole exercise if there is no minimum level of cooperation and communication between the parents and the continuation of joint parental custody poses a risk to the child’s welfare.  

Can I move abroad with my child when the other parent has joint custody in Germany? 

If both parents have joint custody, moving abroad with a child requires the consent of the other parent. Without this consent, such a move could constitute child abduction. In such cases, a court decision to transfer the right to determine the place of residence may be necessary, as the transfer of residence is a matter of considerable importance for the child. If the parents disagree about the child moving abroad, it will often be necessary to transfer other areas of parental custody in addition to the right to determine the child’s place of residence, e.g. in school matters if the child is a student and needs to be enrolled in school abroad.  

International family law issues can include cross-border divorces, child abduction and custody disputes. What are the main challenges and complexities regarding international family law issues? 

It depends on the individual case. In international family law, the greatest challenges lie in the different legal regulations and legal systems of the countries involved. The recognition and enforcement of court rulings and the coordination between different national authorities are especially complex.  

International child abduction and child return proceedings, in particular, pose special challenges for all parties involved. As the situation can be unbearable for the parents concerned, it is all the more important to proceed strategically and carefully evaluate any steps to be taken. 

International family law is becoming increasingly relevant since families no longer all live in the same place or in the same country. 

Our law firm has extensive experience in cross-border legal matters and works closely with colleagues and experts around the globe.  

What is the divorce process in Germany and what happens to our finances on divorce? 

Divorce proceedings begin with the filing of the application for divorce with the court. A divorce may be pronounced after one year of separation. If the spouses did not conclude any prenuptial and postnuptial agreement, the statutory provisions apply.  

The statutory matrimonial property regime is the community of accrued gains. Under the community of accrued gains regime, each spouse retains ownership and management of his or her own assets and also benefits from them. There is no legal liability for the debts of the spouse. There are no joint assets. Instead, the spouse with the smaller gain receives an equalization payment from the other spouse. The respective gain is determined on the basis of a strict cut-off date principle, i.e. information must, on request, be provided about the assets on the date of the marriage and on the date of service of the application for divorce. This information must be substantiated with supporting documents. In addition, information may be requested about the assets at the time of separation. This information must also be substantiated with supporting documents. The spouse who has made the higher gain must pay the other spouse half of the difference between the respective gains as compensation. Inheritances or gifts made by one spouse during the marriage are added to the initial assets so that the other spouse does not participate in the increase in assets resulting from such gifts. On the other hand, any increase in value is subject to equalization. 

The spouses are subject to restrictions on the disposal of the assets as a whole and of household items. In order to counteract arbitrary reductions in assets and thus a reduction in the equalization claim, certain disadvantageous measures are either withdrawn purely by calculation, or the disadvantaged spouse may demand that the third party return what has been granted. 

If the spouses are unable to reach an out-of-court settlement, they can include subsequent proceedings in the divorce settlement (so-called combined application), e.g. post-marital alimony or equalization of gains.  

A combined application means that certain matters that are decided in connection with a divorce must actually be decided in conjunction with the divorce. The purpose of the divorce settlement is to clarify the consequences of a divorce even before it is pronounced.  

In a combined application, a matter is only decided on together with the divorce if the parties involved request this. 

Distinction must be made between this and the compulsory connection that exists between divorce and pension equalization. This means that as soon as an application for divorce is filed, the family court automatically conducts pension equalization proceedings, equalizing the entitlements acquired by the spouses during the marriage. 

From a financial point of view, a spouse may also be entitled to separation alimony for the period up to the divorce and post-marital alimony for the period after the divorce.   

What are prenuptial and postnuptial agreements in Germany, how do they work, and can they be treated as binding contracts in all jurisdictions? 

Marriage contracts can regulate property issues, alimony, and pension provisions and may be concluded both before and after the marriage. They need to be notarized in order to be legally effective. Marriage contracts may also govern the consequences of divorce, such as equalization of gains, alimony, pension equalization, allocation of the marital home or division of household items, etc. In this case, they are referred to as “agreements on the consequences of divorce”. 

The recognition of marriage contracts in other legal systems depends on the respective national laws.  

It is advisable to regularly review and adapt marriage contracts, as marital life can change over time.  

What does an amicable divorce mean and what is the role of the lawyer in achieving an amicable divorce? 

An amicable divorce means that both spouses want to get divorced and agree on the main consequences of the divorce. A lawyer files an application for divorce on behalf one of the spouses. The other spouse does not need their own lawyer, but can agree to the other spouse’s application for divorce.

The divorce becomes final once the one-month period for lodging an appeal has expired. If both spouses are represented by a lawyer, a waiver of appeal can be declared at the divorce hearing, so that the divorce decree becomes legally binding right after the judge has pronounced the divorce decree, i.e. immediately. Thus, the marriage is finally dissolved on the same day.  

How is an estate dealt with if there are assets inside and outside of Germany? 

In the case of an estate with assets in Germany and abroad, both national and international regulations must be observed. This may require cooperation with foreign authorities and lawyers. It is important to consider all relevant inheritance and tax regulations in order to ensure a settlement that is both lawful and efficient.  

Probate matters can be emotionally charged and challenging to resolve. What are the main issues clients face and how are these resolved? 

The main problems are often family conflicts that may also arise from patchwork families, especially if there are several ex-wives, uncertainties about the legal situation, and tax issues. These problems can be solved through clear communication, timely arrangements, i.e. arrangements made during the lifetime of the respective person, comprehensive legal advice, and mediation.  

In the case of divorced entrepreneurs with underage children, it is advisable to have a divorce will. 

Sometimes, overcoming the obstacle of entering a mediation process is a greater hurdle than actually reaching an agreement.  

What are the challenges and issues regarding German property disputes on the breakdown of a marriage or relationship, and how are these resolved? 

Challenges can include valuations of complex business structures in the context of gain equalization, which can be resolved through expert advice and thorough financial analysis, negotiations and, if necessary, court decisions.   

Family mediation is a popular Alternative Dispute Resolution (ADR) method to settle disputes between ex-spouses and separated parents. What impact has mediation and other ADR methods had on German divorce cases? 

Mediation can considerably shorten court proceedings and reduce emotional stress. It can promote an amicable agreement and avoid lengthy court proceedings and offers the parties a chance to talk in a protected environment. A mediator helps the parties to take responsibility, learn how to deal with the conflict, and come to a mutual agreement. 

Subject to the parties’ agreement, mediation can take place before or during court proceedings. In family law proceedings, mediation is often conducted in court by judges who do not have jurisdiction in the case itself. Out-of-court mediation can even take place while the court proceedings continue.  

Have there been any recent significant changes in German family law? 

Yes. In recent years, there have been some significant changes in German family law, particularly with regard to custody, strengthened rights of unmarried fathers and same-sex marriage, especially since the introduction of “marriage for all” in October 2017. 

In January 2024, the Federal Ministry of Justice presented key points for a reform of parentage and filiation law. Besides the conventional marriage and family model consisting of father, mother, and children, new forms of cohabitation have emerged and might need to be taken into consideration.  

What skills and qualities do you need to become a good family lawyer? 

A good family law lawyer needs excellent legal knowledge, empathy, communication skills, and negotiation skills. Moreover, passion, trust, integrity, confidentiality, and a sense of responsibility are essential. 

 

Pilati + Fritz Rechtsanwälte 

Friedensstr. 11 . 60311 Frankfurt am Main  

Tel: +49 69 2695853-0  |  Fax: +49 69 2695853-65   |  Email: fritz@pilati-fritz.de 

www.pilati-fritz.de 

 

Published by: www.lawyer-monthly.com - June 4th, 2024

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