Amicable methods in international family disputes: points of caution and safeguards (2022-2023)

On November 23, 2022, together with Clémence Delpech, I gave a talk for the Paris Bar’s amicable dispute resolution committee (commission Modes amiables) entitled “Points of caution and safeguards for amicable methods in international family disputes.” The text was revised and updated for a new talk before the same committee on December 13, 2023, under the title “Amicable resolution and international issues.” Here are the key takeaways.

Why amicable resolution is essential across borders

A cross-border family dispute involves at least two countries, two cultures, two languages and two views of family life. The judicial response is often inadequate: multiple proceedings, judges without dedicated training for these situations, and decisions that travel poorly between countries and trigger new disputes. Families want solutions rather than rulings.

Amicable methods meet that need: a global, tailored and confidential solution, reached within a reasonable time and better complied with because it was accepted. The Brussels II ter Regulation, which applies to proceedings started on or after August 1, 2022, provides in article 25 that the court shall invite the parties, as early as possible, to consider mediation or another form of alternative dispute resolution, unless this is contrary to the best interests of the child, inappropriate in the case or would unduly delay the proceedings.

Collaborative practice and the participatory procedure: handle with care

Collaborative practice (processus collaboratif) has real advantages across borders: only two lawyers, each of whom may represent one of the countries involved, the transparency required by the charter, limited costs and attention to the sociocultural context. But it can only be used if no court has been seized, and clients fear the “race to the courthouse.”

That reflex should be questioned. Before filing first, check that the other country applies the lis pendens rule (litispendance), that French law will really be more favorable, that French proceedings will better protect the client and that the decision will be enforced. With the United Kingdom since Brexit, for example, EU lis pendens rules no longer apply: a French court seized second may, but need not, decline jurisdiction, and English courts apply forum non conveniens. And when filing is necessary, the application can state the client’s willingness to mediate or to use a participatory procedure, without setting out every claim.

The participatory procedure (procédure participative), a typically French amicable method, is unlikely to be recognized abroad. It remains useful when each party has a lawyer in each country: the two French lawyers can use it as part of a global strategy coordinated with their foreign colleagues.

International family mediation, with safeguards

Mediation is known and regulated in most countries. It can take place even after a court has been seized, for example alongside a child return application, or after the decision to organize its enforcement. Binational co-mediation, with a mediator familiar with the local culture, and mediation by videoconference help overcome distance, with precautions regarding confidentiality.

The lawyers provide the safeguards: a mediation agreement specifying the governing law, the language and the venue; confidentiality secured by written rules or by choosing a protective governing law; an agreement that complies with the rules of each country, checked with a foreign colleague; and finally enforcement, through approval by the courts of both countries or, in France, through a declaration of enforceability by the court clerk on the agreement countersigned by the lawyers.

Sessions

• November 23, 2022: “Points of caution and safeguards for amicable methods in international family disputes,” with Clémence Delpech, Paris Bar amicable resolution committee.
• December 13, 2023: “Amicable resolution and international issues,” Paris Bar amicable resolution committee, updated version of the same text.

Key takeaways

1. 1Disputes of their own kindTwo countries, two languages, two cultures: one judge’s decision rarely settles everything.
2. 2Don’t race by reflexFiling first only helps if lis pendens applies and the decision will be enforced.
3. 3Collaborative practice before any filingEffective between two trained lawyers, it ends as soon as a court is seized.
4. 4Mediation at any stageBefore, during or after court proceedings, with a mediator trained in international cases.
5. 5An agreement that travelsGoverning law, confidentiality, compliance with each country’s law, court approval: the lawyers’ role is decisive.

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.