International family mediation: an answer to family conflicts across borders (2022)

In 2022, I presented international family mediation three times: at IFOMENE in March, then, with Danièle Ganancia and Isabelle Cope-Bessis, before the Family Law Commission of the Paris bar on October 3, and at a webinar of the Centre d’enseignement des modes amiables (CEMA, a teaching center for amicable dispute resolution) on November 26. At IFOMENE, I presented the role of the international family mediator; at the Paris bar and at CEMA, the legal framework for mediation and the lawyer’s role in making it secure. Here are the key takeaways, with selected excerpts from the training materials.

Watch the video and what to take away from it →

Why mediation in international family conflicts

International family conflicts pile up difficulties: psychological violence and geographic distance, two legal systems, the absence or limits of international conventions, and decisions that are sometimes contradictory and hard to have recognized and enforced. Each parent may then win in one country and lose in the other, leaving the child torn between two countries.

International family mediation answers these problems with a set of aims: calming the conflict, restoring dialogue between the parents in the child’s interest, easing fears, seeking a comprehensive, lasting and quick agreement, and building common ground for the parents through a secure agreement recognized in both countries.

A legal framework that encourages and facilitates

Many texts promote mediation in cross-border cases. The 1980 Hague Convention (Article 7) and the 1996 Hague Convention (Article 31) task central authorities with facilitating amicable solutions. The Council of Europe has encouraged it since its recommendation of January 21, 1998, and Directive 2008/52 allows courts to invite the parties to use mediation.

The Brussels II ter Regulation, which applies to proceedings brought on or after August 1, 2022, goes further: its Article 25 requires the court to invite the parties, as early as possible and at any stage of the proceedings, to consider whether they are willing to engage in mediation, unless this is contrary to the best interests of the child, inappropriate, or would unduly delay the proceedings. Mediation remains voluntary. It is possible before any filing, during return proceedings and even after the decision.

Soft law completes the framework: the Hague Conference Guide to Good Practice on mediation (2012) and the Charter for international family mediation processes, drafted in 2015 by 55 mediators from 24 countries, which sets out ten principles, from the voluntary nature of mediation to the mediator’s sensitivity to cultural differences.

The international family mediator: three skills, three goals

International family mediation can be private, with mediators chosen by the parties, for whom the Paris Court of Appeal has drawn up a list by language spoken, or institutional and free of charge: the international family mediation unit of the French Ministry of Justice handles international child abduction cases. The mediator needs three skills: an understanding of the parties’ different cultures, by learning about each one’s customs and stepping back from their own values; command of the parties’ languages, because every word matters in active listening and reformulation, with a co-mediator or interpreter if needed; and knowledge of the international legal context, so that the agreement can be enforced in each country.

The mediator pursues three goals: creating common ground for the parties, since there is no single law or court; restoring communication despite the distance, which makes the pre-mediation phase decisive, as the first negotiations often concern the very conditions for entering mediation; and helping the parties reach an internationally recognized agreement. The tools are co-mediation, which lets each party feel supported by “their” mediator while both remain impartial, and videoconferencing, which is useful but cannot replace meeting in person and calls for particular care over confidentiality.

Making mediation secure: the lawyer’s role

In international family mediation, the support of a lawyer is necessary. First, there is the race to the courthouse: securing the competent court does not prevent starting a court-ordered or private mediation afterward. Mediation must also fit with pending proceedings: in abduction cases, the time limit given to the court often requires mediation condensed into a few days.

The mediation agreement (convention de médiation) becomes the parents’ common legal framework: applicable law, language, venue and, above all, confidentiality, whose scope varies from country to country. The final agreement must then comply with the rules of each country to be recognized and enforced there, which means checking, with foreign counsel if needed, the competent court, the applicable law and, in some countries, the hearing of the child. Double approval (homologation) by a court in each country is often used to secure cross-border enforcement; within the European Union, other routes exist.

Sessions

• March 10, 2022IFOMENE, 93rd mediation and negotiation café (webinar): “Mediation and the separation of international couples.”
• October 3, 2022Family Law Commission of the Paris bar, Maison du Barreau: “International family mediation: an answer to international family conflicts,” with Danièle Ganancia and Isabelle Cope-Bessis.
• November 26, 2022Webinar of the Centre d’enseignement des modes amiables (CEMA): “International family mediation,” with Danièle Ganancia and Isabelle Cope-Bessis.

Key takeaways

1. 1Conflicts like no othersDistance, two legal systems and contradictory decisions often make the court response inadequate.
2. 2Courts must invite parties to mediateSince Brussels II ter, the court must invite the parties to consider mediation, which remains voluntary.
3. 3Mediation at any timeBefore filing, during return proceedings or after the decision.
4. 4A mediator between two culturesIntercultural understanding, the parties’ languages and the international legal context: three essential skills.
5. 5A tailor-made mediation agreementApplicable law, language and confidentiality are set at the start of the mediation.
6. 6An agreement recognized in each countryThe lawyer checks each country’s law and arranges cross-border enforcement of the agreement.

Training excerpts

General information. This account of a talk reflects only my personal opinion and is not legal advice. The cases mentioned are fictional, or inspired by real cases, modified and anonymized.