Family mediation

Introduction

The search for cooperative as opposed to adversarial models of conflict settlement has led to a rise in alternative forms of dispute resolution. Alternative Dispute Resolution (ADR) refers to procedures aimed at settling disputes by means other than litigation. The most popular form of ADR is mediation. The EU Directive on certain aspects of mediation in civil and commercial matters from 21 May 2008 (hereafter referred to as the “EU Mediation Directive”) defines mediation as

“…a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator” (Article 3 (a)).

Mediation is perceived to be quicker and less costly than litigation and in many cases more effective since it deals with the interpersonal aspects of conflict rather than just the legal aspects. This is especially important in family conflicts. The EU Mediation Directive states:

“Mediation can provide a cost-effective and quick extrajudicial resolution of disputes in civil and commercial matters through processes tailored to the needs of the parties. Agreements resulting from mediation are more likely to be complied with voluntarily and are more likely to preserve an amicable and sustainable relationship between the parties. These benefits become even more pronounced in situations displaying cross-border elements“(Preamble, Paragraph 6).

A number of EU Member States have now passed mediation laws regulating the use of internal and cross-border mediation. Already well-established in some countries, family mediation in the course of separation and divorce is used to regulate such issues as parental responsibility, access or visitation and financial matters such as spousal and child support, compensation and distribution of assets and debts. Family mediation is also very effective in settling cross-border conflicts relating to the exercise of access rights and child abduction.

The material developed here is based on the example of cross-border parental child abduction cases of which there is a growing number due to increased globalization and mobility. Here is one example:

Elisa is the young daughter of a married Italian-German couple living in Germany. Finding it hard to find a qualified job in Germany and feeling isolated, the Italian mother returns home for a summer visit and decides to stay and continue her studies in Italy. The German father is shocked and applies for the child’s return to her country of habitual residence under the 1980 Hague Convention. The court recommends mediation and the mediation is scheduled on the weekend before the hearing with an Italian and a German mediator.

Parental responsibility in a cross-border context

Introduction