Best Practice Guide on the Use of Mediation in Cross-Border Disputes
Authors: Zeno Daniel Sustac, Jamie Walker
The importance of training mediators on cross-border disputes
Training mediators in cross-border disputes is still a relatively new field. Experience so far has found that even well-trained and experienced mediators need specialized training to face the challenge of mediating international family conflicts.
The Committee of Ministers of the Council of Europe and the Hague Conference have long established the necessity of training cross-border mediators. Recommendation No R (98) 1 of the Committee of Ministers to member states on family mediation says “states should see to it that there are appropriate mechanisms to ensure the existence of procedures for the selection, training and qualification of mediators” and that standards are to be “achieved and maintained by mediators”. In relation to international matters the recommendation goes on to state: “Taking into account the particular nature of international mediation, international mediators should be required to undergo specific training.”
Recommendation Rec (2002)10 of the Committee of Ministers to member states on mediation in civil matters maintains that “States should consider taking measures to promote the adoption of appropriate standards for the selection, responsibilities, training and qualification of mediators, including mediators dealing with international issues.“
The Hague Conference itself devotes Chapter 3 of the Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Mediation (2012) to the topic Specialised training for mediation in child abductioncases/Safeguarding the quality of mediation. Particular emphasis isput on the need for specially qualified mediators. Child abduction should preferably be conducted by family mediators with adequate experience and special training. Qualification standards and training programs may be established by states to support mediation in such cases (cf. Hague Conference on Private International Law Permanent Bureau 2012: 38).
The research report done by the Catholic University of Leuven in the context of the EU Civil Justice-funded project Training in International Family Mediation (TIM) examines the issues and con-flicts facing international families, gives an overview of family media-tion and family mediation training in Europe and lays out the challenges facing cross-border family mediators – thus outlining the skills and knowledge needed that must consequently be incorporated into training in international family mediation which must live up to these challenges (Pali and Voet 2012).
Finally, it is necessary to establish certain standards in the field of international family mediation. Mediators should possess a high degree of knowledge, know-how and sensibility in regard to cross-border and cross-cultural mediation. It would be useful to establish a code of conduct for international family mediation that covers confidentiality, the extent of the field as well as legal issues concerning the enforcement of agreements. Training should rely heavily on interaction and role-plays, giving mediators first hand-experience and drawing on their different backgrounds. Furthermore, the field would benefit from the establishment of an international register of qualified cross -border mediators, setting standards for training, accreditation and continuing supervision (Parkinson 2011: 369).
2. Training environment and context
In this chapter we look at the background and context of training cross-border mediators, including an overview of the kinds of cases needing to be mediated, the question of who qualifies to be trained as a cross-border mediator and what consequences this has for mediation training. Finally, an overview of the training carried out thus far is given.
The number of international marriages within the EU exceeds 350.000 per year and is growing. This includes couples with different nationalities, those who live in a country outside of their own state and couples of the same nationality living in a different country. There are over 170.000 divorces of such couples each year . In each one of those cases involving children couples must make important decisions regarding custody, residence, contact and visitation. Separation and divorce is necessarily a painful process for all involved – especially for the children. It is not easy to continue exercising full parental responsibility after a separation or divorce and the challenges facing cross-border families are even greater than those facing families who will be staying in the same city or country. Relationship conflicts can also be exacerbated by a compli-cated legal situation.
a. Types of cases requiring mediation (with examples)
Not all cross border family disputes involve the judicial system – many are resolved informally without resorting to judicial means. For example, a Latvian-Italian couple that had settled in Latvia may agree that the Italian wife may return to Italy to live there with the children, arranging for regular contact and visits to the father. Generally, the more amicable the separation or divorce the easier it is to agree on what should happen afterwards. There are also parents who are so upset and overwhelmed by the situation that they may not see themselves in a position to negotiate what they would regard as a fair solution. These are the cases that never reach the courts but may seek out mediation on their own.
Secondly, there are couples that in engage judicial mechanisms and perhaps mediation to settle their disputes. Carrying on the example of the Latvian -Italian couple: the father may insist that the parents maintain joint custody and not trust the mother to support regular contact and visits. The mother on the other hand may want to ensure that the father pays child support, meaning they can negotiate directly through lawyers and/or mediators or seek out the courts with the aim of reaching enforceable decisions, which again must be made legally binding in both or all states involved. The Explanatory Memorandum of Recommendation R (98) 1 of the Council of Europe’s Committee of Ministers points to the fact that there are also cases where children are opposed to access or custody. Such cases pose a special emotional strain on all family members involved.
The most escalated cases are those involving child abduction – whether or not the 1980 Hague Convention applies. Here, one parent has acted unilaterally without the consent of the other parent to remove the child or children from their place of habitual residence or retained them in the other country, perhaps unlawfully. While the reasons the taking parent – usually the primary caregiver, i.e. the mother – gives are often understandable from an interpersonal perspective (“I felt trapped”, “I couldn’t live there any more after we broke up”, “My qualifications are not recognized in the other country and I have no perspective of finding a good job”, “If I’m going to be a single parent I need my family around to support me”), this behavior causes an immediate and pronounced escalation of the conflict. The taking parent may feel bad but in the end justified at having taken such a drastic measure and may or may not have been aware of the fact that this step can easily bring on both civil and criminal legal measures. The left-behind parent is often hurt and enraged, feels helpless and powerless and cannot believe that their former partner has taken such a step (“How could she have done this to me?”). Both parents are terrified of losing their child or children. In this situation communication between the parents often breaks down completely, making it impossible to find amicable solutions. Both parents may take legal action, attempting to maintain or change the status quo in relation to custody and access rights to their own advantage or commence divorce proceedings. The most pressing form of legal action often initiated is a 1980 Hague Convention case, which however, regulated only the question of return or no return of the child – all other issues are to be settled later. In the process of all this and in the middle of two different jurisdictions, the parents increasingly lose sight of each other as being jointly responsible for their children’s well-being and even of their children’s needs. It is difficult to escape from this spiral of conflict. Mediation offers a way out, an opportunity to focus on all the issues at hand and to make decisions that reach far beyond the scope of what the court will decide.
However, mediating such cases poses a severe challenge even to experienced mediators.
It follows that there is a need for preventative counseling and mediation. As a rule, the sooner a case is mediated in the course of a conflict the easier it will be to find a solution. For this reason, it is important that mediators trained in cross-border disputes are also open to the idea of mediating before a conflict has escalated and that counseling and advice centers send clients to specially qualified and trained mediators preventatively. At an early stage of separation or the breakdown of a relationship, mediation can help parents understand each other’s perspectives and find a solution that accommodates both the parents’ and the child’s needs. Such an agreement can resolve what country the parents and child are to live in, lowering the risk of a future parental child abduction (cf. Hague Conference on Private International Law Permanent Bureau 2012: 87).
b. Who qualifies to train as a cross-border mediator? (require-ments, prerequisites)
Cross-border mediators are often called upon to work with high conflict cases. For this reason, they need to be well-trained and experienced practitioners. They should have had initial legal, psychosocial or educational training and professional experience, be familiar with escalated conflict dynamics and have some kind of personal or professional experience working with couples from varying cultural backgrounds. But practice and training in the EU member states varies widely: there are countries such as the England and Wales and Austria where family mediation is very much established and widespread, in-depth training is available, standards have long been set and legislation is in place, and there are other countries in which family mediation is just beginning to be pioneered, with very little practice and no specialized training whatsoever in this area. Thus, since experienced mediators are not always available, it may be necessary to pair more experienced with less experienced mediators (cf. Hague Conference on Private International Law Permanent Bureau 2012: 38).
c. Selection of co-mediators and consequences for training
The Wroclaw Declaration on Mediation of Bi-national Disputes over Parents’ and Children’s Issues from 2007 advocates the mediation of cross-border family conflict by two mediators, a man and a woman, one with a legal and the other with a psychosocial or educational background, one from each of the countries represented by the couple and preferably both speaking both languages involved (http://www.mikk-ev.de/wp-content/uploads/wroclaw-declaration.pdf). Following these principals as a guide, it will be necessary to train mediators with all the required backgrounds (women/men, le-gal/psychosocial backgrounds, different languages and different cultural backgrounds) so you have the right combinations of co-mediator teams when the need arises.
d. Overview of training conducted so far
Although no standard cross-border mediation training has been established to date, this field has seen pioneering activity in recent years.
In 2006 GEMME France, the French Chapter of the European Association of Judges for Mediation, published a practical guide on judicial mediation that mentions issues of mediation training and pro-fessional ethics. AIFI, a primarily francophone interdisciplinary NGO with members in Canada and Europe published a Guide to Good Practice in Family Mediation in 2008 which addresses the issue of training and accreditation for international family mediation (see Hague Guide to Good Practice Mediation 2012 p. 37). As of 2012 AMORIFE INTERNATIONAL and IRTS offer a French- and English-language European diploma course in International Family Mediation (http://www.irts-fc.fr/11_actu/z_telechargement/progra-mme_MFI_franco_anglais.pdf). There have been several initiatives in the UK to develop standards for international family mediation.
The three established organizations offering child abduction media-tion in a systematic way, Reunite in Britain, the Dutch Child Abduction Center IKO and the German NGO Mediation in International Conflicts involving Parents and Children/MiKK, have dif-ferent approaches to mediation and thus to training. All three organizations work with co-mediation.
Reunite has a limited number of mediators and women work in teams as do mediators with a psychosocial background. There is no expectation that the mediators will match the cultural background of the parties or be fluent in their languages. Reunite was a pioneer in this field and its new mediators have mostly been trained on-the-job by working with experienced Reunite mediators. Two Reunite mediators participated in the TIM Training for Trainers in 2012.
The IKO cross-border mediators work in teams with one mediator with a legal and one with a psychosocial background. The mediators were trained in two groups, the first in 2008 and the second in 2010. The training sessions focused on the techniques of cross-border mediation used in different countries, on intercultural relationships, on the voice of the child in mediation and on the role of the Mediation Office. The participants were trained mediators working in the field of child abduction and the trainers were academics who are also practitioners and were chosen on the basis of their skills and availability. IKO’s Mediation Office organizes a one-day assessment once a year for the mediators. Of the 18 mediators trained at IKO 17 are still active. Future training will be organized on demand.
MiKK operates a network of 150 specialized mediators who work in over 30 languages according to the principals of the Wroclaw Declaration. Between 2003 and 2012 MiKK conducted seven two-day seminars with a total of around 150 participants. The seminars are open to fully trained and experienced practicing mediators from a variety of professional and cultural backgrounds wishing to gain further knowledge and skills in the field of international family mediation. Participation in this training was a requirement for having oneself place on the list of mediators (http://www.mikk-ev.de/english/list-of-mediators/). The trainers were all experienced mediators and trainers in the field off cross-border family mediation. Topics covered in the training include the legal context of cross-bor-der family mediation (1980 Hague Confention and the Brussels II bis Regulation), framework and specifics of mediating child abduction cases, cross-cultural aspects and methodologies for mediating high conflict cases; case studies and role play have a dominant position in the training.
In addition to these seminars, MiKK has conducted a number of training workshops in the context of the five bi-national projects so far active. The Franco-German Mediation Project had a pioneering role in this field and was most active between 2004 and 2006, when three week-long trainings were held for mediators from both countries who developed their skills and mediated together. Important issues during these sessions were legal and cultural aspects of mediation, integrating the voice of the child in the mediation or in some cases the children themselves. The practitioners involved in this project mediated more than 30 cases in bi-national teams of co-mediators and the project was evaluated (see Carl and Alles 2009 and Carl and Walker 2011). About five mediators have been involved in the UK-German project which has not included training aspects. Around 30 mediators and other professionals participated in a German-American training seminar in 2006 and around 60 Polish and German mediators and other professionals participated in five bi-national meetings in Wroclaw and in Berlin between 2007 and 2010. Thirty-two professionals were present at the first meeting (weekend training) of the German-Spanish project in Berlin in 2012.
Finally, MiKK trainers were partially responsible for training the first group of IKO mediators in 2008. They were also invited by the Australian Central Authority to conduct a 4-day specialized training in International Family Mediation with 30 Australian family mediators from across the country in 2012 and together with Reunite will conduct a 2 ½ day training in Japan in early 2013.
The most comprehensive training carried out so far in this field was conducted by the EU Civil Justice funded project Training in International Family Mediation (TIM) between 2010 and 2012.Project partners were Child Focus (Belgium), the Catholic University of Leuven (Belgium) and MiKK (Germany); IKO was an associate partner. The study carried out initially by the Catholic University of Leuven on Family Mediation in International Family Conflicts: The European Context (Pali and Voet 2012) served as a basis for thedevelopment of a 60-hour training concept which was piloted in September and October 2011 in Brussels with 21 mediators from 20 EU member states plus Croatia. In February, March and April 2012 an 80-hour Training for Trainers in International Family Mediation was carried out with 47 participants from 22 Member states plus Croatia and Turkey, again in Brussels. Altogether, 68 mediators and mediation trainers representing all EU member states except for Cyprus were trained. The course content covered the following topics:
- Families in Europe and effects of child abduction on children
- Language and interpretation in international family mediation
- Cultural aspects of communication and conflicts in international family mediation
- Legal context: the 1980 Hague Convention, the Brussels II bis and national family law
- Legal aspects of mediation: written agreement, memorandum of understanding, mirror order
- Ethical aspects of child abduction cases
- Mediating in child abduction cases with non-Hague Muslim countries
- Models of international family mediation
- Specific tools and methodologies, including: o Co-mediation
o Caucus/individual sessions
o Online mediation
o Cooperation with legal and other professions
o The voice of the child in mediation.
Emphasis was put on practical exercises, case studies and role play.
The Training for Trainers also included elements of training and networking with other professionals, addressing issues such as the question of who needs to be trained in order to call attention to cross-border family mediation (e.g. Central Authorities, ministries of justice, lawyers, judges, consular employees, social workers, guardians ad litem) and how we can gain access to these potential supporters. For this reason, most countries were represented by at least two mediators/trainers. An opportunity to network between the two groups was provided and the response to the training was overwhelmingly positive.
MiKK was responsible for developing both training concepts and all of the lead trainers were MiKK mediators/trainers. Guest trainers from the Belgium, the UK, the Netherlands, Spain and Australia conducted individual sessions. The fact that there were three times as many applicants for each of the trainings than places available shows the intense and growing interest in this field. The ultimate goal of the project was to form an EU-wide network of qualified mediators and mediation trainers working in this field both at home and abroad. The TIM mediators are now in a position to mediate cross-border family conflicts, including child abduction cases as they arise in a number of combinations according to the principles of the Wroclaw Declaration (bi-gender, interdisciplinary, bi-cultural and bi-lingual). Further, they are very enthusiastic and committed to building local networks and continuing to network with each other and newcomers to the field in order to further the cause of international family mediation (see http://www.crossbordermediator.eu).
3. Content of training
The official documents dealing with the content of cross-border mediation training display a wide consensus. The Explanatory Memorandum to Recommendation No. R (98) 1 of the Committee of Ministers to member states on family mediation mentions the following topics:
- family law and international private law relating to custody, access and child abduction
- challenges and fears faced by parents seeking to retain joint parental responsibility across borders
- risks of parental child abduction
- varying cultural expectations involved
- the role of the extended family in the child’s upbringing.
The Explanatory Memorandum goes on to state that “International mediators will need to work flexibly (using a variety of models, for example shuttle mediation, video conferencing and so on) in order to mediate across distances and will need the knowledge of foreign languages or the competency and training in the appropriate use of interpreters and other experts as deemed necessary in any specific case”.
As the Guide to Good Practice (Hague Conference on Private International Law Permanent Bureau 2012: 38-39) points out, training must impart mediators with the following knowledge and abilities:
- Relevant socio-psychological and legal knowledge
- Recognition of parties’ capacity to engage in mediation, identifying difficulties and potential patterns of abuse
- Cross-cultural competence and language skills
- Familiarity with relevant national and international legal instruments
- Ability to draw the parents’ attention to the needs of the child, urging them to include the child in the process
- Competence to assist parents in reaching agreements that can be implemented in all relevant legal systems.
In the following subchapters a detailed overview of the necessary training components will be given.
a. Legal framework: national legislation on family, the Hague Convention, Brussels II bis Regulation
Mediators need at least basic knowledge of the following aspects of national family law:
- joint custody of married parents after separation and divorce
- custody and access regulations for unmarried parents and consequences in the case of separation
- question of whether one party must be declared guilty when a couple divorces
- access to legal aid and to mediation aid for divorcing couples with limited funds
- question of whether or not parental child abduction is a crime
Of course, this information is much more accessible to mediators with a legal background than to psychosocial mediators. This is, again, why they need to work together as co-mediators.
While it is important for mediators to be familiar with the legal aspects of the conflict, it is paramount that parties receive adequate legal counsel to inform them of their right and duties and the legal consequences of any decisions. Due to the complex legal situation in international family disputes, specialist legal counsels should both support the discussion during mediation and the elaboration of agreements to ensure their legal applicability in all relevant juris-dictions. The Central Authority or a different public institution may provide specialist legal advice. Mediators should only provide legal information to a very limited degree and refer parties to the relevant experts (Hague Conference on Private International Law Permanent Bureau 2012: 61-62).
It is not possible to effectively mediate child abduction cases without a good understanding of the 1980 Hague Convention. Even many legal practitioners are often not familiar with this convention and mediators sometimes face the problem of working with parties who have inadequate or faulty legal advice – putting them in a difficult situation. In particular, it is important to be aware of the fact that 1980 Hague Convention cases normally deal only with the issue of return or non-return of the child to its habitual country of residence where all further custody and access issues are to be settled.
The 1980 Convention influences the mediation in that:
- it means that the mediation must be carried out at short notice
- it drastically restricts the timeframe of the mediation, often to the space of several days
- it puts the parties (and the mediators) under pressure to achieve results within a relatively short period of time
- it places the initial focus on the question of return or non-return.
For many mediators who are used to doing family mediation over a period of weeks and months it is an extra burden to work under time constraints and under pressure, including the awareness that the mediation bureau and the judge may well be waiting for results. Another dimension is the fact that the mediation is often organized at short notice and not always where the mediators live, meaning that they must be willing and able to travel and spend several days away from home.
The mediation itself is frequently influenced by the question of how the parties see their chances of “winning” the case. Often there is a power imbalance between the parties, e.g. the left-behind parent assuming that he or she will most likely win the case. This affects the dynamics of the mediation and the mediators need to be aware of this and in a position to move quickly from the purely legal aspects of the case to the interpersonal aspects. The left-behind parent does not always actually want the child to be returned. There are reasons why parents put in Hague applications, e.g.
- The left-behind parent may want his wife / her husband back.
- The left-behind parent distrusts the legal system in the country to which the child has been abducted and is afraid of losing contact to the child.
- A father who feels angry at his wife for having taken the child without his consent may want to get back at her or even avenge himself by bringing a case.
- Since communication between the parents in such situations often breaks down, the left-behind parent may see the Hague case as an opportunity to force the taking parent to re-establish communication.
A key factor in mediating these cases is the question as to whether the child or children were abducted from on on-going marriage or relationship or from a situation in which the parents were already separated or even divorced and living separately. If the relationship was still intact – at least from the perspective of the left-behind parent – the mediation will more than likely be dealing strongly with relationship issues.
The 1996 Convention is likely to play an ever more significant role in the future and mediators will need to be familiar with it.
Understanding the Brussels II bis Regulation and putting that knowledge into practice is difficult for legal practitioners, to say nothing of mediators without a legal background. Again, the Guide to Good Practice points to the fact that mediators must be aware of the complex legal framework, including the aspect of enforceability in different national jurisdictions (p.91).
b. Psychosocial aspects conflict dynamics in bi-national fami-lies, the effects of child abduction on children, benefits of mediation, ethical aspects of mediation
Regarding the psychosocial aspects of cross-border family mediation it is important to impart information and facilitate exchange over the question of conflict dynamics in bi-national families, e.g. the fact that when couples separate topics such as distance to their country of origin, availability and contact to family members on a regular basis and job opportunities suddenly become an issue and sometimes even threatening (which is often not understood by the former partner). When circumstances change it can become necessary for the mother to return to work or she may need more help with child care on a daily basis and more moral support from family and friends than she did when she was married. Mediators must also be mentally prepared to work with a parent who has realized that the other parent is determined to have the child returned – even if the abducting parent stays where he or she is. The decision as to whether or not to follow the child is an extremely difficult one. In some cases one or both of the parents have new partners and may even be expecting a new baby. This also significantly affects parties’ willingness to negotiate and the dynamics of the mediation.
Another key issue is that of the effects of child abduction on children. Mediators should be aware of the parents’ responsibility to find amicable solutions allowing their children to have significant contact with both of them – and know how to refocus the parents’ attention on this issue when they get caught up in their own conflict dynamics. Also, mediators need to know what the effects of losing contact to one parent for a significant period of time can be. In some child abduction cases there is the risk that one parent will later get sole custody of the child and the other will only have very little contact, either because there is a danger of re-abduction and the non-custodial parent only has supervised contact or because the child is returned to its habitual country of residence where pending criminal charges against the abducting parent prevent him or her from traveling to that country. For the mediation process itself it is essential to make it clear to the parents that they are both very important to their children, even if parents and children do not live in the same country and do not see each other on a daily basis.
Concerning the benefits of mediation it is important to make it clear that the parents have a one-time opportunity to make their own decisions rather than leaving this up to the court. This must be done without putting them under pressure, since it is their decision whether or not to reach an agreement or a partial agreement in mediation. They should realize that the judge will only make a decision based on the legal situation and that mediation allows them to consider the situation as a whole, especially the needs of the child or children. Mediators must learn to accept a decision by the parties to put their destiny in the hands of the judge rather than making their own decisions as to their future and that of their children.
Ethical aspects of mediation that should be dealt with in the training are questions such as what to do if one party reveals vital information that would influence the mediation process to the mediators in an individual session but does not want that information revealed to the other party. Other issues might be how to deal with power imbalance between the parties in the mediation and what to do if one party threatens the other or if one party has received inadequate legal advice. These are all situations that can and do arise in child abduction mediations and even if there are not set answers mediators should be prepared for them.
c. Cultural aspects of conflict resolution and mediation, chan-ging face of families in Europe, role of language, working with interpreters
One of the most challenging aspects of mediating cross-border family disputes is the cross-cultural dimension. When bi-national couples meet and fall in love they are often fascinated by the fact that their new partner comes from a different cultural and national background – the differences are interesting and enriching. When the relationship breaks down, however, these same differences may come to feel threatening and the parties may fall back into familiar patterns of thought and behavior. Accordingly, mediators must be aware of cultural and religious issues that may affect the situation (cf. Hague Conference on Private International Law Permanent Bureau 2012: 62).
Some of the aspects that may play a role in the mediation are:
- Parental roles, e.g. importance of the mother and father to the child at different ages, attitudes towards divorce and single parenthood
- The role of the extended family, e.g. relationship between nuclear and extended family, role of the grandparents and other relatives in child-raising, importance of holidays and (religious) celebrations
- Upbringing and education, e.g. practices and attitudes in regard to childcare, giving children and teenagers freedom and liberties
- Dealing with family conflicts, e.g. direct (open) or indirect patterns of expressing feelings and of conflict resolution.
Another important issue cross-border mediators need to be prepared for is the role of language and the possibility of working with interpreters. Usually the couple has had a common language but as this may be the mother tongue of one party and not the other the non-mother tongue party may feel at a disadvantage and wish to speak his or her own language in the mediation. Also, when strong feelings come up parties tend to speak their mother tongue. The mediators should be aware of the language issue and deal with it flexibly, e.g. if one party says something that neither their partner nor one of the mediators understands the mediator who also speaks that language can interpret. If there is a general language problem and the parties wish to speak different languages (as perhaps there has been no contact between them for quite some time) a professional interpreter is needed. Having an extra person in the mediation inevitably changes the dynamics of the situation. The mediators must take the time to prepare the interpreter ahead of time and insure that he or she does not take on an independent role, e.g. by becoming an advocate of the party being interpreted. Another effect, of course, is that having an interpreter slows down the mediation process considerably unless the interpretation is done simultaneously.
Finally, the mediation agreement may need to be formulated in both languages. This is usually done by the mediators.
d. The mediation process
The mediation process in cross-border family disputes often differs from the process in disputes involving only one jurisdiction. As a rule, the mediators are in closer contact with the parties before the media-tion begins than usual and there is a very intense preparation phase. The parties must agree to the conditions of the mediation before it begins and are sent an Agreement to Mediate (http://www.mikk-ev.de/english/information/agreement-to-mediate/) ahead of time. The mediators must be aware of their special role in these cases, be flexible in working with different styles and know how to bring the interests and needs of the child into the mediation. It is also essential that they are in a position to formulate a mediation agreement according to the specific demands of the case and know what steps the parties, their legal counsel and the judge must undertake to make the agreement or memorandum of understanding legally binding in both jurisdictions, i.e. via a mirror order.
i. Role of the mediator, co-mediation
In practice, co-mediation has proven to be the most effective method of mediating cross-border family disputes. Especially in highly escalated cases, two mediators working together can defuse and help to solve conflicts more efficiently. This is particularly effective if a bi-cultural bilingual model of mediation is used. This includes mediators from each of the parties’ cultural and linguistic backgrounds and helps the mediators understand the individual parties’ perspectives, values and desires. In such a team, mediators can facilitate discussion across cultural boundaries and help the parties find a solution they can both agree to. While this model can help the parties feel understood in the mediation, the mediators must make clear that they represent neither of the parties and draw attention to their impartiality.
Many mediators have not yet worked with co-mediation at all, much less with a co-mediator from a different country with a different professional background and training. This means that future cross-border family mediators must be trained how to work together. Relevant issues here are:
- Background, training and previous experience: how do we each mediate?
- Use of methodologies, techniques and language
- Awareness of and experience with the parties’ cultural backgrounds
- How to approach the parties before the mediation, e.g. who speaks with which parent / with the lawyers? Who writes which emails in which language?
- Communication with each other during the mediation.
Furthermore, it is essential that seminar participants gain practice in co-mediation in role play. When they later mediate real cases they may well be working with a co-mediator they have never met or worked with before, so they will need to know what questions to discuss with each other ahead of time, gain a common understanding of the case and how they want to want to approach it and decide how to proceed if they disagree on something.
ii. Models and styles of cross-border family mediation
Cross-border mediators should be aware of the different models and styles of mediating these specialized disputes. Either they will be working within a set system, as with Reunite, IKO or MiKK, or they must decide themselves how they want to approach the mediation. Often the parameters of the mediation are determined by outside circumstances, i.e. the fact that one parent will only be visiting for a limited period of time, a court hearing that has been scheduled – perhaps to allow the mediation to take place before a decision is made – or the fact that the available finances limit the mediation to a certain number of hours. Mediators will need to be flexible enough to deal with such limiting circumstances.
Another issue is the fact that the usual mediation phases are often put in a different order, especially in child abduction cases. If there is time pressure and a court hearing pending, the parties will need to explore their options much sooner in the mediation process than this is usually done. Examining the needs and interests of the parties and their children is often done in relation to the options. In high conflict cases the mediators will need to gather enough information about the past to be in a position to explore the conflict, but generally should avoid spending a significant amount of time delving into the past since this inevitably leads to bringing up old conflicts which may have been smoldering for years and will most likely not be resolved in the mediation. Mediators need to practice effective time management when there is limited time available.
iii. Tools and methodologies for mediating high conflict cases
The most important tools for mediating high conflict cases are indivi-dual sessions, shuttle mediation and reflecting team. As individual sessions and shuttle mediation are not common in family mediation practice in Europe, future cross-border mediators will need to familiarize themselves with the advantages and pitfalls and have some experience in role play with when and how to orchestrate these methodologies in a mediation. Also, they must contemplate how to deal with the issue of confidentiality in relation to individual sessions. One way to relate what has been discussed in individual sessions is “reflecting team”. This is a method in which the mediators discuss among themselves what is going on between the parties with these present. It is an excellent way to switch the focus of a mediation from the subject matter/issues (which may be highly conflictual) to the level of conflict dynamics. Reflecting team can be very useful but it is important to employ it correctly, meaning this should be included in the training if the trainers practice this technique themselves.
Another tool that is becoming increasingly important in cross-border cases is online mediation. This is a very practical tool to use when parents are far apart and unable to meet personally or to continue a mediation that began face-to-face but could not be concluded before one parent had to leave.
iv. Bringing the voice of the child into the mediation
Since mediation in cross-border cases ultimately has the child’s welfare in mind, mediators should urge parents to focus on their child’s needs, stressing the importance to inform and consult their child throughout the mediation process (cf. Hague Conference on Private International Law Permanent Bureau 2012: 61).
This is no easy task for the mediators. While parents agree that they want what is best for their child they usually have radically different views as to what that is – and these views happen to correspond with what that parent wants. Future cross-border mediators must learn when and how to bring the views of the child into the mediation. They may decide to employ child-focused as opposed to child-inclusive mediation. Both are based on the child’s need for the parents to solve their on-going conflict and need for security and a close relationship to both parents. Child-focused mediation uses different techniques to gain insight into what the child is like and what the parents think the child wants. Child-inclusive mediation actually brings the child into the mediation process, with or without the parents present depending on the case. Here is it essential that the child is heard without giving him or her the responsibility of making decisions. Child-inclusive mediation can only be done if both parents and the child agree. It is important that hearing the child does not put him or her under additional pressure. Children may well also be heard by the judge and/or a guardian ad litem.
e. Interdisciplinary cooperation
Because of the nature of cross-border family disputes, especially those involving the judicial system in one way or another, it is absolutely essential that mediators cooperate across disciplinary borders. In fact, there is often much more contact in these cases than in regular mediation cases. Before the mediation begins the mediators may be in touch with the Central Authority – they may even be asked by the Central Authority to mediate the conflict. Either the mediation bureau or the mediators must explain to the parties that they may well need to be in contact with their lawyers during the mediation so that the lawyers can check over a proposed agreement before it is finalized. In child abduction cases the mediators are sometimes in email contact with the lawyers before the mediation commences or speak to them over the phone. Indeed, it must be clear that both parties’ lawyers support the mediation and if there is no mediation bureau to clarify this the mediators themselves will have to do it. The court must be made aware of the fact that the mediation is taking place and suspend proceedings during the mediation. Also, the court will be informed as to whether or not an agreement has been reached and if there is an agreement and the parties consent the judge will receive a copy of it – usually via the lawyers. Finally, the judge’s support may be needed to render the mediation agreement legally binding in both (all) jurisdictions. (see Kiesewetter 2011)
4. Methodology of training
Cross-border mediators need not only knowledge but far-reaching skills which can only be acquired by interactive, participatory learning. As too much theory would overwhelm participants, the training must offer a balanced mix of theory and practice. Only training involving the principle of experiential learning will allow mediators to build on their previous experience and prepare them adequately for working with high conflict cases. Working with interdisciplinary groups of mediators from both legal and psycho-social backgrounds means that the participants will be able to learn not only from the trainers but also from each other. This does, however, present the challenge of teaching legal content in such a way as not to overwhelm psychosocial participants and psychosocial content in such a way as not to overwhelm legal mediators. Since the knowledge imparted in both cases is so specialized there is little risk that these groups will become bored.
In regard to methodology the following elements are absolutely essential:
- theoretical input
- work in small groups
- practical exercises
- case studies and
- role play.
The theoretical input must be presented in “digestible” increments, e.g. using visualization and avoiding long presentations. Small groups can work together on varying tasks in different combinations, the main value being that the participants can take a much more active role than in a large group. Sometimes it will be necessary to report back to the larger group and at other times it will suffice to discuss new insights gained in the group. Practical exercises are extremely useful in putting what one has learned into immediate practice, thus ensuring it will not be forgotten. Case studies afford a realistic view of the intricacies and challenges that will be facing the future cross-border mediators. And finally, role play is an essential element in learning how to mediate international family conflicts. It is important that the role play takes place in a trusting atmosphere where participants feel free to make and learn from their mistakes and not under undue pressure to be perfect at something they are only just learning. All participants should have the opportunity to mediate in at least one role play, thus enabling them to practice co-mediation. Playing the parties (mother or father) will give them a deeper understanding of what the parents go through emotionally during the mediation process and how specific methodologies such as active listening, reframing, individual sessions and reflecting team affect the parties.
Conducting training with mediators from different countries and cultural backgrounds may present a challenge as not all participants are equally fluent in the language of the training. This makes the training harder to follow for some participants. However, as the TIM training showed, this experience proved to be a great enrichment for the participants and the trainers themselves since the groups represented such a wide range of professional backgrounds, cultures and languages – thus anticipating the situation they would face when mediating. Even the fact that some mediators and trainers were much more experienced than others did not turn out to be an insurmountable problem.
An essential methodological element of any mediation training and especially of cross-border training involves developing a trusting and affirmative relationship between the participants and the group and among the group members. This can be done by employing elements of introduction and sharing and by the open and curious attitude of the trainers.
The Hague Guide to Good Practice makes no recommendations on the topic of trainer qualification but it is important that the trainers themselves are practicing cross-border mediators. This makes them credible for the participants as they can integrate their own experience – positive as well as negative – into the training. It also gives the trainers more confidence. The only exception to this rule should be when training programs are just getting started. If no mediators are available with previous experience it is acceptable to use trainers who are pioneering this field in their country.
A further requirement is that the trainers need to be experienced trainers accustomed to working together in interdisciplinary cross-cultural teams, e.g. along the lines of the Wroclaw Declaration. Trainers need to be dedicated to the process of establishing cross-border mediation in its own right, open to the input of participants who have more experience than they do in certain areas (willing to learn from them) and flexible in their methodology, i.e. able to recognize when an exercise or role play is not going well and in a position to react accordingly. Just as the parties are the experts in their own conflict and it is the mediators’ job to help them improve communication and seek amicable solutions, trainers should act as experts who are open to learning themselves, both on a content and on a methodological-didactical level. Last but not least it is important that trainers are willing to play a role beyond the initial training process. They should be available to provide participants with on-going support and supervision after the conclusion of the initial training.
Trainees should have access to cases and that when they have cases supervision and on-going follow-up support and training will be available. This is important to keep participants motivated, especially if they do not yet have any cases. Also, it is essential to create organizations such as Reunite, IKO and MiKK that are in a position to advise parents and professionals involved in these cases, screen cases for mediation, manage the cases, look for appropriate mediators and do evaluation and follow-up.
One of the biggest challenges to organizing and maintaining on-going networks and training programs is the lack of funds for such endeavors. Indeed, setting up a network of qualified mediators requires dedication and commitment and is again a process that will take years. This task cannot be achieved without appropriate funding.
Cross-border family mediation – including child abduction cases – is usually so emotionally charged and legally complicated that even experienced mediators need special training in this area. This chapter has shown why in-depth training is so important to enable mediators to effectively face the multiple challenges of working with these very special cases. Participants must receive the opportunity to learn the appropriate content from experienced mediators and mediation trainers via varied appropriate methodologies in a conducive atmosphere. Finally, mediators active in this field need on-going training and support as they venture out into practicing mediation in this relatively new area.