mediation in the application of the 1980 convention regional conference on the 1980 hague convention...

Mediation in the applicationof the 1980 Convention

Regional Conference on the 1980 Hague Conventionon the Civil Aspects of International

Child Abduction

Belgrade, Serbia

3-4 February 2011

Philippe Lortie, First SecretaryHague Conference on Private International Law

Hague Conference on Private International Law | Conférence de La Haye de droit international privé

HAGUE CHILD ABDUCTION CONVENTIONPROMOTION OF AMICABLE AGREEMENTS

Amicable Agreements – Practical relevance

Increasing number of voluntary agreement based returns among the applications that ended with the child(ren)’s return when comparing the 1999 and 2003 figures

Outcomes of Applications 2003

6%

22%

9%

20%

13%

3%

9%

15%

4%

0%

10%

20%

30%

Rejection VoluntaryReturn No

Orders

JudicialReturn byConsent

JudicialReturn Not

byConsent

JudicialRefusal

AccessAgreed orOrdered

Pending Withdraw n Other


MEDIATION IN CHILD ABDUCTION CASESPRELIMINARY CONSIDERATIONS

Advantages, limits, risks and safeguards

All appropriate steps should be taken to encourage the parties to a cross-border family dispute concerning children to find an agreed solution to their dispute.

Safeguards and guarantees should be put in place to prevent engagement in mediation from resulting in any disadvantage for either of the parties.


ESTABLISHMENT OF MEDIATION STRUCTURESGOOD PRACTICES

A. Central Contact Point Provide information (in official language & either English or

French)• About available family mediation services including, list of

mediators/organisations; costs; mediation models used etc.• To assist with locating the other parent / the child• On where to obtain advice on family law and legal procedures• On how to give the mediated agreement binding effect• On the enforcement of the mediated agreement• About support to ensure the long-term viability of the agreement

Promote co-operation, training & exchange of best practices Gather & make publicly available information on cases dealt with

by central contact points, actions taken and outcomes

Requests should be processed expeditiously


ESTABLISHMENT OF MEDIATION STRUCTURESGOOD PRACTICES

B. Mediation- Characteristics of mediators – inter alia: Suitable training in family mediation, Knowledge/ understanding of relevant international, regional and

national law Significant experience with inter-cultural cross-border disputes Language competency- Establishment of lists of mediator- Safeguarding the quality of mediation

C. Rendering mediated agreements binding Where needed, countries should examine the desirability of introducing

regulatory or legislative provisions for the enforcement of mediated agreements


MEDIATION IN CHILD ABDUCTION CASESGOOD PRACTICES

General importance of linkage with relevant legal procedures

Mediation and other means of amicable dispute resolution should be seen as a complement to legal procedures, not as a substitute.

Access to judicial proceedings should not be restricted. Mediation in international family disputes needs to take account of

relevant national and international laws, to prepare the ground for a mediation agreement that is compatible with the relevant laws.

Legal procedures should be available to give legal effect to the mediated agreement.



Challenges using mediation in international child abduction cases

Timeframes / Expeditious procedures Close co-operation with administrative / judicial authorities More than one legal system involved; enforceability of the

agreement in all / both jurisdictions concerned Different cultural and religious backgrounds Language difficulties Distance Visa and immigration issues Criminal proceedings against the taking parent



Access to mediation – stage of proceedings; referral / self-referral

Role of the Central Authority Role of the judge(s) / courts Role of lawyers and other professionals Role of Central Contact Points

Other access to mediation issues

Initial screening – suitability of mediation in a given case Costs of mediation Mediation venue The mediation contract – informed consent to mediation Impact on / Linkage with Hague proceedings



Scope of mediation in international child abduction cases

Focus on the issues of urgency Importance of jurisdiction and applicable law regarding parental

rights and other subjects dealt with in the mediated agreement

Mediation models and methods

Direct or indirect mediation Single or co-mediation Concept of bi-cultural, bilingual mediation



Mediation principles – international standards

Voluntary nature of mediation Informed consent Initial screening for suitability of mediation in the particular case Neutrality, independence, impartiality and fairness Confidentiality Consideration of the interests and welfare of the child Informed decision-making and appropriate access to legal advice Intercultural competence Qualification of mediators or mediation entities – minimum

standards for training



Voice of the child in mediation and the presence of third parties

The child’s views should be considered in mediation in accordance with the child’s age and maturity

Whether the child should be involved directly or indirectly must be given careful consideration and depends on the circumstances of the individual case

Where the parties to the conflict agree, mediation should be open to the involvement of third parties whose presence might be of importance in finding an agreed solution



Arranging for contact between the left-behind parent and child

Safeguards / Avoiding re-abduction Close co-operation with Central Authorities and administrative and

judicial authorities

Mediation and accusations of domestic violence

Screening for suitability of mediation Treatment of domestic violence in Hague proceedings Safeguards in mediation / Protection of the vulnerable party Information on protective measures



Enforceability of agreed solutions in the relevant jurisdictions and issues of applicable law

Terms of the agreement to be drafted to allow the agreement to obtain legal effect and become enforceable in the relevant jurisdictions

Necessary measures to be taken to give the agreement legal effect and render it enforceable in the relevant jurisdictions

Access to information on the relevant procedures in the jurisdictions concerned should be facilitated by Central Contact Points

Co-operation among administrative / judicial authorities may be needed to help facilitate the enforceability of the agreement in all the States concerned



Enforceability of agreed solutions in the relevant jurisdictions and issues of applicable law (cont.)

Courts to make use of judicial networks and to seek the assistance of Central Authorities where appropriate

States should introduce, where necessary, mechanisms to facilitate procedures for rendering mediated agreements enforceable

Issues of jurisdiction and applicable law need to be taken into consideration when drawing up the mediated agreement

Questions

Permanent BureauHague Conference on Private International Law

Scheveningseweg 62517 KT La HayePays-Bas

Tel: +31 (70) 363 3303 or Fax: +31 (70) 360 4867E-mail: [email protected]: http://www.hcch.net

mailto:[email protected]

http://www.hcch.net/

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