There are fewer extreme positions in family law than in international parental child abduction cases, where each parent is fighting for the child to live with him or her, thousands of miles away from the other parent. In comes mediation. Mediation is routinely used in family courts throughout the United States to manage overflowing case dockets and to uncover a middle ground. It seems impossible to imagine a middle ground between two feuding parents in different parts of the globe. A judge, particularly one in a Hague Child Abduction lawsuit, is limited to a very singular outcome—the child goes back from where she came or stays where she is now located to then allow the parents to litigate custody in the appropriate jurisdiction. But mediation can generate more creative options and resolve more than just the preliminary issue of where the child will sit while litigation rages on.
It seems unlikely that mediation would yield any result if a parent abducted his or her child to punish the other parent or to keep the child entirely away from the other parent. These cases exist but are rare. Most parents unilaterally relocate their child out of desperation at the end of a relationship, where the parent has little support or resources in his or her adopted country. In other words, there is definitely room for discussion and creative solutions.
The Wild West of Global Family Mediation
A handful of international and regional organizations have been discussing the use of mediation to resolve complex multijurisdictional child abduction cases for the better part of a decade. The Hague Conference on Private International Law produced principles to guide countries in establishing mediation structures in 2010 and a Guide to Good Practice on using mediation in 2012. Concerned that agreements reached through voluntary processes, such as mediation, were not being recognized and enforced nation to nation, the Hague Conference also supported a complementary project that will result in a practical guide on cross-border recognition and enforcement of agreements related to children. International Social Service, an international organization headquartered in Geneva, Switzerland, simultaneously researched and produced certain work product in the field of international family mediation, including a guide for parents who wish to learn more about mediation as an option, a charter elaborating on the basic principles of international family mediation, and a structure for a future global network of family mediators. The work of these two international bodies confirmed what are otherwise basic principles in mediation—it is a voluntary and confidential process where participants are aided in reaching an agreement by an independent and impartial third party. Both organizations went beyond these basic principles to stress the importance of having highly qualified and culturally sensitive mediators who are skilled in working with diverse families and children and have a solid understanding of the complex laws and legal systems involved in the dispute.
Ultimately, these international organizations envisioned regions and countries creating their own structures to provide mediation to cross-border families. The most prominent advances in providing quality cross-border mediation services are in Europe. Reunite in the United Kingdom, MiKK in Germany, and the Mediation Bureau of Centrum Internationale Kinderontvoering in the Netherlands all offer mediation services for families who live cross-border lives. Some government offices that function as the Central Authority for their country under the 1980 Hague Child Abduction Convention also offer or facilitate access to mediation services (see http://www.mofa.go.jp/ca). Some of these regional efforts have expanded, with MiKK trainers traveling overseas to train mediators in other countries and regions. International Social Service also has local branches in many countries, some of which offer cross-border mediation services.
The reality is that while mediation has become a more prominent part of child abduction cases, there is no consistent process country to country. In the United States alone, there are no nationwide standards for mediators, no consistency among states as to training or background requirements for mediators, and no uniform guidelines. In some jurisdictions within the United States, basic principles in mediation, including confidentiality, do not even hold true, with mediators reporting to the sitting judge seized in the case if no agreement is reached. With many still taking the view that mediation is a skillset (like litigation or negotiation) and not a profession that requires licensing, there will never likely be consistency within the United States, or without. This may lead to consumers of mediation having difficulty assessing which mediators may be the best fit for their unique situation.
It may be difficult to find a mediator with all the various skills required in a complex cross-border case, so when researching mediators, consumers must consider seeking one outside of their immediate jurisdiction. For lawyers who practice in a large diverse city with high hourly rates, a skilled mediator from another jurisdiction may be less expensive. If the consumer finds a mediator who is tech-savvy, he or she may be able to save money while finding a more skilled mediator with a better baseline of knowledge of international child abduction cases. Above all, a person’s mediator of choice should have bona fide life experience working with international families, a knowledge of the multijurisdictional laws that underpin a case, and a sensitivity to the different issues inherent in these cases, including power imbalances and communication issues created by different cultural backgrounds. There is no one training that will adequately prepare a mediator for these complex cases. The best mediator is one who has worked in this field for years and has seen the issues firsthand. A skilled cross-border mediator will have handled cases globally, including using technology, and with the newly recognized benefits of Online Dispute Resolution, there is little reason why a child abduction case must be mediated by someone in the jurisdictions involved in the case, and may actually imbue confidence as to the mediator’s impartiality in a high-conflict case.
Benefits of Using Mediation in Cross-Border Cases
There are numerous benefits to mediation in all types of disputes but particularly in child abduction cases. In many child abduction cases, you are working with two layers of litigation, and, at times, litigation in multiple countries simultaneously. It is expensive and exhausting, and even if you “win,” there are still few guarantees that the law supports enforcing the terms of the winning court order. Mediation can work towards resolving more than just the child abduction issues—it can, hopefully, serve to de-escalate a very high-tension situation, and, at times, do so better and faster than a court. It allows the parties to express their sincere concerns about the child’s needs and desires, whereas many of these court proceedings do not focus on the child so much as the act that caused the child to be located in a different country. Mediation can kickstart a discussion that could ultimately resolve all the underlying issues related to the child, including access to both parents, where appropriate. By engaging in a discussion and a voluntary resolution, the parents and their legal representatives in both countries can take appropriate steps to ensure the enforceability of the agreement in each country before the agreement is implemented (or factor in the lack of enforcement in a particular country when negotiating).
Mediation is a flexible process. It can happen anywhere, at any time, and discuss any issue the parties want to raise. If a parent has immigration impediments to entering a country to mediate in person, then mediation can be done remotely, using various technologies that everyone is so adept at using in today’s society. If one of the parents expresses concerns that the other intimidates or controls, then the mediator can structure the process to ensure both parents feel safe to speak his or her mind and reach a voluntary resolution. For complex international cases, the parties can incorporate interpreters, translators, and a variety of other professionals seamlessly into the process to reach a comprehensive and enduring solution. These cases also prove fertile ground for working with co-mediators that have varied backgrounds, who, in their sum total, may mirror more of the diversity in the family than a single mediator.
Cautions in Using Mediation in Multijurisdictional Situations
The law is complex. This is doubly so when you are dealing with international treaties and the laws (and conflict of laws) of two or more countries. These cases require a comprehensive understanding of the interplay between a foreign jurisdiction’s laws, conflict of laws, treaties, uniform laws in the United States, and underlying domestic family law. Mediating also requires a fundamental understanding of the basic dictates of mediation practice in the implicated jurisdictions. Mediation is not always confidential (even within the United States). If the mother is sitting in California, the father is sitting in Norway, and you (the mediator) are sitting in Boston, Massachusetts, what law applies when defining confidentiality for the mediation process? What happens if you agree the process is confidential, but that does not hold true for the family when they are litigating in one jurisdiction’s courts later? Could a parent say something in mediation that prejudices his or her case? For example, in a Hague Abduction case, a parent accused of “abducting” his or her child may argue that the other parent acquiesces to the child’s relocation. If, in mediation, the parents are discussing schedules, including a schedule that permits the child to remain in the new country, could that parent’s words be used to construe their acquiescence? In a Hague Abduction case, if a case is not filed in the appropriate court within one year of the child’s wrongful removal or retention, the parent accused of “abducting” his or her child may argue that the child is now settled in his or her new country. At times, a parent may use mediation and the hope of reaching a settlement as a mechanism to delay the other parent’s court filing, adding to the list of possible exceptions to returning the child. You may also want to be aware of overly optimistic or uneducated lawyers in these Hague Abduction cases. International cases are fascinating from a legal perspective but are routinely misunderstood by even the most skilled family lawyers who wish to use them as a means of arguing what is best for a child (note, the court is specifically prohibited from resolving custody in a Hague Abduction return proceeding). While that discussion may be appropriate in mediation, it may give a lawyer, and his or her client, a false sense of security in the outcome if they should proceed to court. A good mediator who understands the law may be able to set realistic expectations for both parents and lawyers and recognize when lawyers are posturing without any basis.
One of the most complicated issues in the mediation process is the enforceability of any document your client signs at the end of the day. Depending on what cases are filed in what courts, what claims are pending, and what jurisdiction has authority over each issue you resolved (custody, a return of the child under the Hague Abduction Convention, child support, travel costs, and even property), it can be daunting to determine where you can take your agreement and incorporate it into an enforceable court order. It is not always the obvious or logical court, and it may require a legal team of U.S. and foreign lawyers to achieve this goal. The mediation will only succeed if you come prepared, and with a full understanding of the law both in the United States and outside of it. Consider having your foreign co-counsel participate in the mediation process remotely, alongside you. A trained mediator can also present the pertinent questions you need to be asking to ensure enforceability.
The mediators who handle these complex cases should always have a comprehensive contract that they require all mediation participants to sign at the outset. This “Agreement to Mediate” should include very clear references to the standards that the mediator will follow (e.g., confidentiality, disclosure of conflicts), payment, the language in which the mediation will occur, the involvement of third parties, the use of technology (e.g., prohibitions on recording, understanding the inherent risks with using technology, etc.), among other things. The mediator should also engage in a structured pre-mediation process. This process should include some type of screening for more than domestic violence. The screening should give the mediator sufficient information to allow her to structure a flexible, efficient process that is tailored to this family; enable each participant to feel empowered and comfortable; and be in the best position to make educated decisions about his or her life. It will also give the mediator information on whether both parents have sufficient legal support, and whether the mediator may need to have an initial discussion about including legal counsel in certain jurisdictions with specific expertise.
Lawyers should always consider paths to settlement for families, particularly international families who have enough challenges in their daily lives. But any lawyer that embarks down the path of mediation with his or her client must be well educated about the law. If the situation is too complicated, consider retaining a co-counsel or case consultant who can advise on the multijurisdictional legal issues. Find a good mediator, although given the challenges country to country, along with the inconsistency in mediator credentials, that might be difficult, so do your research. If you cannot find a mediator who is skilled in the law and process, at least find an educatable mediator, who you can work with and will not create additional challenges through his or her lack of knowledge. Use mediation as a flexible process, with flexible rules, but be certain everyone is on the same page and has the same expectations. Know the laws of the countries and states where everyone will be participating in mediation and whether that might prejudice your client and keep certain discussions off limits.
Finally, these cases are fascinating. They are the type of cases that grab the attention of the media and your local congressperson. Do not get wrapped up in what this case can do for your career if you “win” it. Learn the law, with a co-counsel or case consultant; represent your client admirably; but, at the end of the day, recognize that this is a family. They have unique issues. But it is a family, nonetheless, and mediation may be the best mechanism to resolve their case with a sustainable and long-term solution.