Crossing boundaries: reconciling law, culture and values in international family mediation

Abstract

Mediation is now widely advocated as a favourable alternative to judicial prescription in a family justice context, prompting the development of a critical mass of professional expertise in this area. While academic research and debate on mediation has also grown accordingly, there have been comparatively few attempts, particularly in a European context, to consider the application of mediation to family disputes that straddle geographical, cultural, linguistic and legal boundaries. This is in spite of the growing incidence of international relationship formation and dissolution, itself the product of an increasingly multi-cultural, multi-ethnic and multi-national landscape created largely by the progressive liberalisation of migration policies and the globalised market economy.

A complex mesh of bi-lateral, private international, Council of Europe and, latterly, EU instruments, have been developed to regulate jurisdictional conflicts and ensure the smooth recognition and enforcement of divorce and parental responsibility agreements across borders. The widespread shift towards extra-judicial approaches to determining post-divorce arrangements at the national level demands a closer look, however, at whether mediation provides an appropriate, alternative response to this phenomenon.

This paper therefore considers whether the regulatory and professional framework currently governing trans-national disputes is sufficiently robust to meet the (often more complex) dynamics of international family life. The first section summarises developments at International and EU level to regulate and facilitate this form of alternative dispute resolution. The second section pinpoints some of the logistical challenges associated with cross-national mediation and explores whether the framework responds sufficiently to them. The third section questions the efficacy and appropriateness of mediation in the specific and more sinister manifestation of international family disputes: that of cross-national child abduction. The final section speculates on the future of mediation at the trans-national level, suggesting how it might be improved to better accommodate the needs of families engaged in the process.

Keywords:

• family mediation
• abduction
• private international law
• EU family law
• cross-national mediation

Notes

 1. The German Federal Ministry of Justice provides specific training for cross-national parental disputes and has established mediation schemes with both France and the United States with varying degrees of success. For further information on the Franco–German bi-national mediation project, see http://pageperso.aol.fr/frdemed/index.html [last accessed 25 August 2007]. The model developed by the German Federal Association for Family Mediation (Bundesarbeitsgemeinschaft für Familien-Mediation, or BAFM) provides perhaps the best example of cross-border mediation in Europe. Details are available from: www.bafm-mediation.de; see also the Polish–German mediation project established in 2007 (Kiesewetter 2009).

 2. Notably the Association Pour la Médiation Familiale and the Association Internationale Francophone des Intervenants auprès des familles séparées (AIFI) have encouraged and developed cross-national networks of communication and exchange between mediators.

 3. Available from: http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf [last accessed 6 October 2009].

 4. Directive 2008/52/EC of the European Parliament and the Council of 21 May 2008 on Certain Aspects of Mediation in Civil and Commercial Matters (2008) OJ L 136/3.

 5. The reference here is to conciliation (for which legal representation is compulsory) rather than mediation, although the provisions refer to the option to appoint an independent mediator should the parties fail to meet an agreement.

 6. Among Sunni Muslims in Lebanon, the father has physical custody of a daughter over the age of nine and of a boy over the age of seven. For Shia Muslims the father generally has physical custody for boys at age two and for girls at age seven. Such issues are generally decided in the Sunni Muslim court as opposed to the civil courts.

 7. See, for example, the Austrian Mediation Act 2003 which introduced a registration scheme for all family law mediators (Bundesgesetz über Mediation in Zivilrechtssachen, BGBI. I Nr. 29/2003).

 8. For further detail, see McEleavey (2003), Lowe et al. (2004) and Stalford (2006).

 9. It should be noted that such statistics do not reveal whether voluntary return was achieved as a result of mediation or simply the abducting party's immediate compliance with a return order.

10. This has been identified as a specific issue by the judiciary in the context of return proceedings generally, with Baroness Hale calling for a reconsideration of how the views of abducted children might be ascertained in order to meet the six-week deadline (Re D (A Child) (Abduction: Foreign Custody Rights), [2006] UKHL 51). Such sentiments were echoed by Thorpe LJ in Re F [2007] EWCA Civ 468, para. 24.