Mediation in Unlawful Cross-Border Parental Child Abduction Cases

Best Practices in Germany

Sabine Brieger and Mary Carroll

Budapest

24th June 20141

To give you an example…

- Marcel (French) and Nadia (Russian)- he 40, she 37, living together in Marseille with their 3-year-old

daughter Sophie, - hefty conflicts including eviction by the police and allegations

of theft- Nadia moves from Marseille to Berlin without Marcel’s

consent, - Marcel files a 1980 Hague Convention case in Berlin- Marcel files criminal charges against Nadia- Marcel files an application for sole custody in France- ………

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What is MiKK?- A German NGO specialized in providing

- Mediation in International Conflicts Involving Parents and Children (and especially in cross-border child abduction cases)

as well as- Training in cross-border mediation and related areas for

mediators, judges, lawyers, guardians ad litem and other relevant bodies in Germany and other countries

- MiKK collaborates closely with the German Central Authority and all relevant institutions and

- is a cooperation partner in EU projects for training and networking in mediation in cross-border child abduction cases

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http://www.mikk-ev.de/ Information for the Parties Involved

Available in various languages:•German, English, French, Polish, Russian, Spanish, Turkish•for one or more children respectively, depending on the individual case

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Information for Lawyers

• English• German

……..Does this convince the parents to mediate? Not necessarily…..

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What works best?Personal information

about the benefits of mediation

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Reaching out to the parents“MiC – Project”

MiKK Mediators in court

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The Berlin Pilot Project - MiCA mediator attends the first hearing in return

proceedings in accordance with the Hague Convention

developed by Judge Sabine Brieger in collaboration with MiKK

Launched in 2012 • A mediator attends all first hearings of

Hague Convention cases• A second court hearing is immediately

scheduled for 7 – 10 days later• In the meantime there is time for

mediation…11

German example: Summons1. Ein früher erster Termin zur Abklärung der Formalien, zur Prüfung der Mediationsbereitschaft der Eltern , zur

Regelung des Umgangs des Antragstellers mit dem Kind findet statt am Freitag, den 2014 , Uhr, Saal C 3 und ist zeitlich beschränkt auf 1 Stunde.

An diesem Termin wird ein Mediator oder eine Mediatorin von MIKK eV. (siehe die anliegenden Informationsschreiben zur Mediation) zur Verfügung stehen, um Fragen zur Mediation zu beantworten

2. Der Haupttermin und Anhörungstermin für die Eltern wird anberaumt auf Montag, den 2014, 9.15 Uhr, Saal C3.

( Evtl. Kindesanhörungstermin hier gleich mit terminieren)

3. Das persönliche Erscheinen der Beteiligten zu beiden Terminen wird angeordnet.

Eine Dolmetscherin für … ist für beide Termine geladen. Falls kein Dolmetscher benötigt wird, teilen Sie dies bitte umgehend mit.

4. Schreiben an MIKK

MiKK e. V., Mediation bei internationalen Kindschaftskonflikten

Fasanenstr. 12, 10623 Berlin, Tel.: +49 (0)30 / 74 78 78 79, Fax: +49 (0)30 / 214 17 57

in pp

steht hier am 2014 , Uhr, Saal ein Termin an, in dem die Beteiligten unter anderem über die Möglichkeiten der Mediation informiert werden sollen. Es wäre sehr hilfreich, wenn ein Mediator/ eine Mediatorin von MIKK an dem Termin teilnehmen könnte.

Gemeinsame Sprache der Eltern ist deutsch/ ;

das Kind wurde aus ……. nach Deutschland gebracht.

Verfahrenskostenhilfe wurde bisher nicht beantragt 12

1st Court Hearing within 3- 4 weeks of application

• Time limit of one hour• Regulation of access• Information about mediation• Raising the issues to be clarified before the

second hearing • Listing the documents that need to be procured• Possibly some legal advice or other requirements

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In the case of Marcel and Nadia…

• Mediation over 14 hours on 3 days

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2nd Court Hearing

Documentation of mediation agreement

• In the case of return of the child with the reservation of fulfillment?

• Approval by the judge?• Mirror order? • Enforcement problems?

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Advantages of the MiC Berlin Pilot Project

• The benefits of mediation can be explained directly to the parents

• Questions can be answered• The 6-week deadline of Art. II of Brussels II bis can

be optimally utilized• No delays in the proceedings • The judge’s “authority“ can be put to good use• The left-behind parent can spend time with the child

(often the first contact after a longer time)

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Advantages of the MiC Berlin Pilot Project

• Parents come into direct contact with the mediator• Mediation becomes a concrete and realistic option in

the emotionally charged and challenging situation • The likelihood of reaching agreement increases• All the parties involved are in the picture (greater

transparency): lawyers, guardian ad litem, youth office staff, interpreters from the hearing, if required

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• Tremendous organizational effort beforehand on the part of MiKK and the mediators

• Finding a suitable co-mediator team with the relevant cultural background and languages and with sufficient time to conduct the mediation at short notice

• Clarification regarding who will cover the costs• The parent who has travelled from abroad to the court hearing must be

willing to stay on longer or come back for the mediation• Possibility of contact between the child/children and the visiting parent

must be guaranteed and must be coordinated with the mediation• Mediators receive no payment for attending the court hearing; they are

only paid if the parties decide on mediation

MiC Berliner Pilot Project - Challenges

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And what has happened if the parents haven’t reached an agreement by the end of the mediation?

• Communication between them has improved• The parents are focussing more on the child• The parents are talking to each other once again – often for

the first time in a long time• The parents have listened to each other and to the other’s

perspective• They are less emotional in the courtroom – the dynamics are

less explosive• They are clearer about the different ways of resolving the

conflicts and the consequences for the family and the child (Elsen/Kitzing/Böttger, 2005)

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And what has happened if the parents haven’t reached an agreement by the end of the

mediation?

• In some cases, parents have prepared two agreements in order to be prepared for whichever court decision comes about.

• When the parents reach an AGREEMENT, this has to

be checked and confirmed by the court and made legally binding in both countries.

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Contact either Judge Sabine Brieger or Mary Carroll at MiKK

Who is interested in the concept?

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How did MiKK become established?

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MiKK e.V.

launched as a project of BAFM

(Federal Association of Family Mediators)

2008

MiKK set up as an independent

NGO

Cooperation with BMFederal

Mediators’ Association

Since 2010

Constant expansion of European andInternational

networks

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MiKK Todayca. 410

members

More than150 spezialized

bilingual mediators, who together can work in more than

30 languages

& CooperationWith a network

Of over 550 mediators worldwide

Website

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Number of enquiries to MiKK regarding mediation in child abduction cases

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Preventing child abduction• Cross-border family conflicts build up long before abduction• Institutions working directly with families need to be better

informed about the whole topic:– nursery schools, child care centres, schools– churches, neighbourhood centres– child welfare and child protection services

• Early intervention costs money

but saves in the long run

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Dynamics of international cases involving child abduction

Cultural differences can become threatening during breakup Both parents want to be active in their children’s lives One parent feels trapped and wishes to return home after extreme

difficulties, a separation or divorce Illegal retention or abduction Reaction of left-behind parent: anger, disbelief, helplessness

and powerlessness Danger of re-abduction Both parents are afraid of losing their children The children are caught in the middle

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Principles, goals and setting of mediation

•Negotiate a mutually acceptable agreement•Impartial mediators act as a bridge•Structured process•Confidential and voluntary•The parties find the solutions•Neutral setting with multiple sessions

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Specialised mediation services for cross-border and child abduction

conflicts

MiKK Germany

collaborating with individuals and institutions

worldwide

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Framework of the mediation• Initiated by parties, lawyers, judge, Central Authority, Ministry of

Justice, consular staff or child protection services• Timeframe: short notice, often just before court hearing• Characteristics of child abduction cases:

– Time-consuming preparation, travel, contact to lawyers– Long, open-ended sessions, usually over 2 to 3 days– Highly escalated conflict dynamics, lack of trust, fear of losing

child, feelings of anger and betrayal, pressure to make far-reaching decisions at short notice, influence of likely outcome of court case, high level of insecurity, very intense

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WHEN we mediate

• The sooner the better!• Before a case is brought to court• When a case is pending• After first hearing but before decision• Between court cases, e.g. first instance and appelate court hearing• After court decision, e.g. return of the child

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HOW we mediate• Co-mediation according to Wroclaw Declaration with

mediators from:- both cultures and both languages- both genders- the legal and the psychosocial professions

• Focus on the child, facilitate contact to absent parent, bring the voice of the child into mediation, develop scenarios for possible solutions

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Qualifying the mediators • Cross-border child abduction mediation is a

challenge – even for experienced mediators• Training is essential

– Training in International Family Mediation (Civil Justice Project 2010-2012)

– MiKK: next training in Sept. 2014 in Berlin (see MiKK website for details)

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Finding qualified mediatorswww.crossbordermediator.euOver 70 trained family mediators from all EU countries and beyond

www.mikk-ev.deOver 150 trained family mediators working in more than 30 languages

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Issues Settled in Mediation• Return of the child, future living arrangements• Custody, visitation, contact to absent parent• Travel, holidays and birthdays, expenses• Religious and cultural / bilingual upbringing• Child support, spousal support, division of assets• Criminal prosecution• Contact to absent parent during mediation….. Back to Marcel, Nadia and Sophie…

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Importance of cooperation among all stakeholders in the process

• The parents – with a focus on their child / children

• Central Authority• Lawyers• Judges• Guardian ad litem• Youth Welfare Services

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Advantages of cross-border mediation

• Enables parents to explore the issues and underlying conflicts and improve communication

• Develop realistic and fair options • Sustainable agreement if possible• Legally binding through court order and mirror order• Deescalates, deals with relationship level• Prevents future litigation• Prevents long-term damage from child abduction

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Limitations and difficulties– Parents too emotional to understand the other’s perspective– Parent convinced s/he will “win” in court and thus unwilling to

compromise– Lawyers or other professionals not supportive of mediation– Lack of funds– Putting agreement into practice– Legal enforcement of the mediation agreement– Parents do not ask for help until the conflict has escalated– The longer the conflict remains unresolved, the worse it is

for the children

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Recommendations• Awareness campaign at national and EU levels for

parents and professionals• Independent European coordination bureau for

advice, counselling and organizing mediation cases • National advice centres / task forces for dealing with

cross-border cases (2-10 employees per country)• Training for judges, lawyers, child protection services

etc. to convince them of the need for and value of mediation

• Mediation aid: reallocate part of legal aid funds

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Information on the MiKK website

• English• German • And many more languages

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Best practice:Enabling parents to remain partners!

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For further information

• Judge Sabine Brieger, Berlin Sabine.Brieger@ag-pw.berlin.de

• Mary Carroll, Managing Director, MiKK info@mikk-ev.de

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