Mediation and Agreement
A Brief overview of issues relating to the facilitation of agreed solutions to international disputes concerning children With particular reference to the Hague Conventions of 1980 and 1996
The Convention Context 1
1980 Convention:In order to secure prompt return of children Central and other Authorities are to co-operate to take directly or through any intermediary all appropriate measures – „to secure the voluntary return of the child or to bring about an amicable resolution of the issues;‟ – Article 7 c) „The Central Authority …shall take …all appropriate measures ..to obtain the voluntary return of the child.‟ – Article 10.
The Convention Context 2
The 1996 Convention:„The Central Authority ….either directly or through public authorities or other bodies, shall take all appropriate steps to – Facilitate, by mediation, conciliation or similar means, agreed solutions for the protection of the person…of the child in situations to which the Convention applies;‟ Article 31 b)
What do we mean by Mediation?
“a process in which qualified and impartial third parties (mediators) assist the parties to negotiate directly or indirectly on the issues that need to be resolved and to reach considered and mutually acceptable decisions that reduce conflict and encourage co-operation for the well-being of all concerned” –
ISS Family Mediation Trainers Group, Geneva, 2005 as quoted in „Definitions of International Family Mediation‟ by Lisa Parkinson, pub. 2005.
• Background – most abduction/retention situations are symptomatic of a breakdown in relationships involving the children • Agreement – can resolve both the underlying issues and the question of return of the children • Relationship with convention – care needed to avoid mediation being seen as acquiescence or preventing the use of the convention procedures • Time frames – need to be fast - six weeks max. • Referrals – cane be offered at any stage
Mediation and the Child Abduction Convention – some issues
Some legal background issues
• Scope of the process – primarily return of the child but broader issues need to be borne in mind and can be resolved • Mediation is ALL about agreement • Qualities of the mediator – independence and impartiality are absolutely essential • Confidentiality of the process – all concerned should not disclose what took place during the mediation • Enforceability – of the resulting agreement to be arranged in accordance with the law applicable
Methodological issues
• Direct/indirect – face-to-face or arms length depending on circumstances • Single state/bi-national – use of video links • Single or co-mediators – two mediators may be preferable on linguistic/cultural grounds • Gender/culture issues – as to choice of mediator/s • Language – need to consider which to use • Professional background – may be desirable to have at least one mediator from a legal background or with legal knowledge of the key legal issues
Access to Mediation
• How to introduce mediation to parents – care needed to explain the methods and purpose to parents so that they are not put off the idea of trying mediation • Pathways to mediation – lawyers, courts or central authorities can do this • Costs and funding – may be available form legal aid schemes; position needs to be made clear
Mediation and the Child
• Contact with the child – often beneficial for child to be involved in a mediation • Hearing the child in mediation – children of sufficient age and maturity may be heard by suitably trained mediators • Relationship between mediation and Article 13 as regards the views of the child – care needed not to interfere with the child‟s right to object to return – Art. 13(2).
Training of mediators
• Importance of training – appropriate training in Family Mediation is essential • Specialising in family mediation – basic training and standards have been prepared leading to accreditation • International family mediation training – some limited specialist training schemes exist for international family mediation
Mediation Organisations
• International Social Services – referral to mediators in a network • AIFI – French-speaking mediators‟ network for communication and information about international mediation • EFFMTR – sets up standards for training and practice and forum to exchange information • MFBE – Franco-German bi-national mediators‟ network
Some Mediation initiatives
• MAMIF – referral to mediation by the French Courts under the Code Civil • Re-unite – scheme by this UK NGO specialising in Hague Convention cases • German Federal Ministry of Justice – referral of Hague Convention cases by judges trained in the use of mediation • ISS – training scheme for international family mediation world-wide
The 1996 Convention
Article 31 b) makes it clear that Central Authorities are expected to take the initiative, directly or through other bodies, to facilitate agreed solutions by mediation, conciliation or similar means – and To co-operate with each other – and To promote co-operation amongst other authorities in their States – Art. 30(1)
Resolutions/Conclusio ns
Fourth Special Commission March 2001 – „Voluntary return to be achieved ... by referral of parties to…an appropriate mediation service…role of courts in this regard is also recognised.‟ Council of Europe – Resolution 1291(2002) „…promote family mediation as a means of preventing parental child abduction and helping to resolve family conflicts‟.