Mediation

Development in mediation regarding international child abduction matters

Admin

2011-08-25

At the third multi-judicial conference on cross frontier family law issues held on 23 to 26 March 2009 in San Julians Multa it was accepted that a need existed to urgently develop a more effective structure for the mediation of cross-border family disputes between signatories and non-signatories to the Hague Convention. At the conference it was recommended that a plan of action for the development of mediation services to assist where appropriate in the resolution of cross-border frontier disputes concerning custody of and contact with children be established under the auspices of the Hague Conference and Private International Law. Such a working party would draw up the necessary plan of action and comprise of experts drawn from the states concerned as well as independent experts with experience and expertise in the field of international family mediation.

Such a working party held a two day in person meeting of the expert group on 17 and 18 February 2011 in the Hague whereat the Guide to Good Practice on Mediation of the 1980 Hague Child Abduction Convention would be discussed so that a revised version of the guide would be prepared by the permanent bureau for circulation to the members of the Hague Conference and contracting States in advance of the sixth meeting of the Special Commission to review the practical operation of the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention which is to take place in June 2011.

I was fortunate enough to attend such a meeting and my paper is a short report back on the discussions held on the draft Guide to Good Practice. Please note that I will not be taking you through the Guide as it is some 85 pages long but rather to highlight those specific aspects of the Guide. It is envisaged that the Guide will become available towards the end of next month and in this regard I strongly recommend that practitioners go onto the Hague Conference website being : www.hcch.net.

The principles contained in the United Nations Convention on the rights of the child and in particular:

"The right of the child to maintain on a regular basis, save in exceptional circumstances, personal relations and direct contact with both parents” where the principles by which we were guided.

It is necessary to promote structures and methods of mediation which:

  1. are compatible with different legal and administrative systems;
  2. are capable of utilizing existing resources available in private and public sectors;
  3. are respectful for the rights of the parties including the child;
  4. ensure fairness between the parties within the mediation process and respect cultural and religious differences;
  5. operate within, or in conjunction with, existing legal procedures;
  6. are without prejudice to the rights of the parties to have access to judicial proceedings; and
  7. avoid delay of the misuse of mediation to impede the progress of legal proceedings.

It was also necessary to consider any practical measures needed to ensure that mediated agreements are respected and if necessary, legally enforceable in the countries concerned. It was essential that any draft Guideline prepared would be used as a working document, user friendly and as a Guide to assist both signatories and States who are non-signatories to the Conventions. Bearing in mind the different countries, legislations, proceedings, cultures and the lack of a single applicable system, it was essential that the Guide would be able to be embraced by as many countries and persons as possible.

In the absence of applicable international regional legal frameworks mediation or similar means of consensual dispute resolution are often the only way of finding resolution to enable the child to have contact with both the parents. This is the basic instruction behind the Guide and was necessary to highlight the general importance of promoting agreements in cross-border family disputes over custody and contact. The Guide seeks to promote good practice in mediation and other means of amicable dispute resolution used in international family disputes. The Hague Convention encourages amicable resolution of underlying family disputes as Article 7 of the 1980 Convention stated the Central Authority:

"shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues".

The establishment of a certain contact point which facilitates the provision of information inter alia on available mediation services in respect of jurisdictions, access to mediation, a facilitated medication including costs of mediation fees and other connected costs, information on the mediation process itself. The CCP should also provide information to assist in locating the other parent or child within the country concerned, where to obtain advice on family law and legal proceedings, how to render a mediated agreement binding and who to enforce it, promote co-operation between various experts through networking, training progammes and exchange for best practices, standards regarding identification of international mediation services. The CCP must also recognize the importance of rendering a mediated agreement binding or enforceable in other legal systems. It is clear that the central contact point cannot be the Central Authority but must be an independent organization with links to the Central Authority, the judicial offices, the administration offices, mediation experts, legal professionals and similar organizations through a network overseas. It is to the CCP that the Judges will refer cases, that parents and/or children will go to in order to get assistance in cross-border and international abductions.

At the meeting, discussions highlighted the general importance and advantages of promoting agreements in cross-border family disputes over custody and contact, limit risks and safe-guards should be put in place to prevent engagement in mediation from resulting in a disadvantage for either party. The importance of the linkage with relevant legal procedures whilst undergoing the mediation process was highlighted as mediation should be seen as a complement to legal procedures and not as a substitute. Mediation in international family disputes needs to take account of relevant national and international laws, prepare the ground for a mediation agreement that is compatible with the relevant laws and it is essential for legal procedures to be available to give effect to the mediated agreement.

It was highlighted throughout the process that the involvement of the lawyers in any mediated agreement was absolutely essential. Therefore the fear that lawyers may have in the event of mediation being introduced into Hague Convention matters is clearly catered for. If you think about it, it is not possible to reach an agreement which would be binding in both jurisdictions without the input of the legal experts from both jurisdictions as the enforceability of any mediated agreement reached is a pre-requisite to any success as to the enforceability of the agreement.

A lot of discussion took place with regard to screening and the importance that a mediator should determine the assessment of the suitability of a case. In this regard it was suggested that an annexure be attached to the Guideline for guidelines to assess the suitability of mediating a matter. Through the use of annexures to the policy Guideline we hope to make the Guideline more user friendly, practical and universal.

You will also note from the revised policy Guideline which will come out later next month that you will not read in the Guideline that the parties may or have reached “a "mediated agreement". These words "mediated agreement" were debated at length and it was agreed that the notion of a provisional agreement would rather be reached between the parties (explain).

We also discussed specific challenges which the use of mediation in the framework of a 1980 Hague Child Abduction Convention case would encounter. These include:

Timeframe and the need for expeditious procedures. Mediation must be dealt with expeditiously and within the time frames so as not to unduly delay Hague proceedings (six weeks). Therefore parties should be informed about the availability of mediation as soon as possible, the assessment of suitability to be applied and the services to be provided by the CCP are to be scheduled on short notice. According to research from the Reunite pilot project in the UK, parents were very happy to be offered mediation in and on a very short timeframe. In France for example, it must take place within three months, in Belgium they postpone legal proceedings for one month in order to allow mediation to work, in Israel there is a preliminary meeting which must take place within ten days otherwise they look at seventy five days to finalize an agreement after referral whereafter the matter proceeds through the courts.

Discussion was also held as to whether you should initiate return proceedings before commencing mediation and it was universally accepted that this is essential as this applies pressure to all parties, helps the parties to focus, the parties remained responsible to the legal proceedings and they were always aware that there was a Judge present to in a way case manage the proceedings.

As a challenge is the need for close co-operation between administrative and judicial authorities. This challenge was discussed at length and it was suggested that various examples be provided to highlight the need for such close co-operation for example to schedule a mediation in parallel with judicial process, how Central Authority refers mediators, how a Judge refers matters to mediation (they cannot do this in Austalia or America whereas in Netherlands the Judges must be made aware of the mediation process and there can be contact between the Judge and the Mediating Officer in Holland. In Australia for example they have a network of service providers eg. telephone dispute resolution service and an IT package (discuss). In Germany on the other hand they have funding for international mediation cases and in America they are looking to set up a mediation referral programme which will naturally co-operate between the administrative and judicial authorities.

Challenge

The enforceability of the agreement in all jurisdictions concerned : Mediators must be aware that the mediation takes place against the background of the inter-action between two or more legal systems and the need to ensure that any agreement is applicable in both mediation systems.

Different cultures and religious backgrounds

Case discussions were held as to how to resolve this. Two mediators, different gender, different race, different culture, different religion? (discuss).

Language Difficulties

Whilst you may well have a family where the father is from Spain and the mother from Israel, there will be a common language which was spoken in the family and it is that language which can be heard. Alternatively the use of translators and interpreters can be used.

Challenge of geographical distance

This must be taken into account and arrangements for a mediation meeting as well as normalities agreed on in the mediated agreement must be addressed, skype, telephone, IT packages etc.

Fees and immigration issues

All measures to be taken to facilitate the provision of travel documents to a parent wishing to attend an in person mediation or a parent needing to enter another country to exercise his/her contact rights and the Central Authority should assist where possible.

Criminal proceedings

If these have been initialled then the issue needs to be addressed in mediation and close co-operation is essential between relevant judicial administrative authorities to ensure that the agreement reached in mediation is not frustrated by ongoing criminal proceedings. This is very difficult as a mediated agreement may not be binding on criminal proceedings in the State to which the abductor would or may return.

Role of Central Authority

CCP to provide information on available mediation services as well as the need to establish cross-border register of mediators and the possibility of establishing a regional mediation organization

Role of lawyers and other professionals

It was found that it is essential that lawyers be involved to inform people of their legal rights but where possible they must encourage an amicable resolution of the dispute and for the legal representatives to support the parties in giving legal effect to the mediated agreement in both legal systems involved.

Role of Central Contact Point (CCP)

Give access to information

Assessment for Suitability – costs of mediation – mediation venue- mediation contact – mediation contract

It was recognized that it was important for parties to give form to the mediation and a draft contract will be put together and included as an annexure in the Policy Guidelines.

Mediation principles

International standards of mediation principles will be included in an Annexure to the Guideline which will state for example, voluntary nature, there must be informed consent, screening for suitability, neutrality, independency and partiality of the mediator, confidentiality, best interests and well-being of the child, inter-cultural competence, qualification of the mediator.

Mediation models

These were discussed whether there should be direct or indirect mediation, single or co-mediator, concept of bi-cultural bi-lingual mediation.

Involvement of the child and possible involvement of third parties in the mediation process

Discussion was held in this regard as to how to get the voice of the child heard in the mediation process. Certain Judges in certain jurisdictions will talk to children whereas other Judges will not as they do not feel that they are sufficiently competent or qualified to do so. It was agreed that a psychologist or suitably trained person would engage the child in order to introduce their views. In Australia for example they utilize a child’s focused approach which is suitable in all mediation which focuses on the needs of the child as opposed to a child inclusive approach where another mediator, separate from the mediator attending to the parent, speaks to the child and brings the views of the child into the mediation process. In Israel for example it is not “the voice of the child but rather the participation of the child” which is more important. It was universally accepted that the Guideline must make it clear that the child must not be asked to choose. Regarding involvement of third parties and extended family in mediation was discussed. It was accepted that it is very important and this is at the discretion of the mediator. For example in Israel Grandparents have rights whereas in California in the Supreme Court it was recently ruled that Grandparents have no rights. However, in cross-border abduction matters it is invariably the extended family who are in extremely involved in the family dynamics and the new family environment.

Need to arrange for contact between left behind child and the child during the mediation process either personally or electronically

It is also essential that the necessary safeguards are put in place to avoid re-abduction and the close cooperation with central authority and administrative and judicial authorities was highlighted and this will all be included in the policy guideline.

Mediation in domestic violence matters

It was accepted that you can mediate when there are accusations of domestic violence. It is necessary to press the necessary safeguards in place and to protect the vulnerable party. Accusation is not a fact and sometimes the victim is not always the accuser. It was also pointed out that domestic violence was not limited to physical violence but also incorporates psychological, emotional and verbal abuse. In French Law for example mediation is not forbidden in domestic violence matters. The Australian Contingent stated that 70% of the matters include allegations of domestic violence.

The terms of the provisional agreement

These need to be drafted realistically and to take into consideration all the related issues. An annexure including a checklist will be included in the policy guidelines to assist states.

Enforceability of agreed solutions

The agreement must be drafted in a concise and ordered manner so that a consent order may be obtained easily. It was pointed out that it was important to have a network of contacts around the world to assist with legal representatives in other countries, for mediators to explain to parents what goes into the agreement, how to utilise the agreement and what steps must be taken to make the agreement enforceable in the other country.

Issues of jurisdiction and applicable law

These need to be taken into account when drawing up the provisional agreement.

Prevention of international child abductions

A checklist would be provided in the form of an annexure to assist parties to prevent international child abductions.

Specialised training for mediations

A point was raised that there is no such terms as an international family mediator but rather a mediator who mediates in international matters. Therefore whilst there is specific qualification, it was agreed that it was imperative that only experienced family mediators who have undergone specific training should conduct these mediations, that they need continued training to maintain their competence and that the various states should promote the establishment of training standards in cross-border family mediation. An annexure including the conduct rules of mediators would be annexed to the policy guidelines as well as a checklist of elements to be covered in the training of mediators. Various mediation trainings will take place in Europe under the auspices of the European Union, America and Australia are looking to conduct training. There are disputes with regards to the kind of training where for example the French require a very academic approach of 210 hours where the English look for a more practical approach. There is naturally also a lot of politics between nations with regard to training participation etc.

Other means of amicable dispute resolution

As it is inline with our Children's Act it was necessary to look at alternative methods to resolve disputes but yet maintaining confidentiality - Med/Arb, conciliation, collaboration, facilitation. Collaboration whilst it is used extensively in the States, was deemed not to be appropriate due to the fact that should the collaboration procedure fail then it is incumbent on the participating attorneys to withdraw. Therefore the legal representatives could withdraw at the last minute creating a further delay in the process.

Use of mediation in similar processes to bring about an amicable resolution in non-Hague Convention cases

In order to make the policy guideline more user friendly a dedicated section will refer to terminology and to look at the rights of the child. As mentioned it is envisaged that the policy guidelines will be available towards the end of April beginning of May as they will be discussed in June 2011 in Malta. The policy guideline is exactly that it is a guideline to assist parties, states, judicial officers, legal and mental health professionals when they find themselves in a child abduction matter. The conference was extremely stimulating and the willing to exchange ideas to listen and be heard was refreshing. Bearing in mind that we went through a 85 paged document in 2 days amongst 17 people is, to my mind, a compliment to the mindset of mediators as a desire to make mediation process work. I do not believe that this would have been possible had there been 17 psychologists or 17 lawyers sitting around a table.


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