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Mediation

Can mediation work if the other spouse or other parent is in a separate country?

Yes.­ There are a variety of ways in which international family law mediators and other ADR professionals work with separated international families to help resolve disputes.­ This can be via a mediator in each country alongside each person, using webcams, and other electronic devices to overcome the cross-border separation.­

Do I have to attend a compulsory mediation information meeting before I commence English family court proceedings if I or the other spouse or parent is abroad?

No.­ This requirement does not apply where one person is abroad, or in some cases with any international element.

What about child abduction cases?­ Surely mediation is impossible?

Experience has shown much success where the parties have the benefit of mediators experienced in child abduction issues, and where the mediation carries on in parallel of court proceedings which occur very fast for the possible return of the child.­ Outcomes may include agreements about future contact, where the child will live and other arrangements beyond the central issue of the abduction itself.­ Similarly mediation works very well when one parent wants to move abroad with a child and the other parent is opposed.

I want to avoid the costs of lawyers.­ How can we settle our case?

Most countries around the world directly encourage resolving family disputes without using courts.­ This is often known as Alternative Dispute Resolution (ADR).­ It covers:

  • Traditional mediation in which a neutral professional assists the couple to resolve any dispute, without the mediator giving legal advice.­ It covers both financial disputes and arrangements for children.
  • Directive mediation is the same as traditional mediation but if the couple find it difficult to settle and reach agreement, the mediator has the power to indicate possible settlement options to direct towards a fair outcome.­ This form of mediation is often by experienced lawyer mediators and in “hard to settle” cases.
  • Collaborative law occurs when the couple undertake to settle through lawyers without issuing any proceedings unless agreed.­ If either party then has to issue e.g. because there is no settlement or one spouse is being unreasonable, both have to change lawyers which can significantly be to the disadvantage of some spouses.
  • Arbitration occurs when a lawyer qualified as an arbitrator acts as a private judge.­ The advantage is that the arbitrator can be chosen for the required experience or specialisation of the area of the dispute and it is a more flexible and confidential process than through courts.
  • Early neutral evaluation is an opinion given at an early stage in a dispute by an experienced lawyer as to what may be the outcome if the case were to litigate.­ It can save costs and become a good indication of a fair settlement.

Lawyer negotiation remains the most frequent form of out of court settlement, with each person having their own lawyer advising and negotiating for them and then drawing up the final settlement order.

Are there any problems with using ADR in international cases?

Definitely.­ They must be realistically assessed.­ Because often several countries, or laws, may be able to deal with the dispute of a couple, it is important to establish certain matters before either commencing any form of ADR, or often even suggesting it to the other family member.­ ADR should not be considered:

  • until jurisdiction has been established i.e. it is known in which country the proceedings will take place.­ This may mean, especially within the EU, issuing proceedings first and only then suggesting ADR.
  • until it has been sorted out which country’s law will be applied.
  • the whereabouts and safety of any abducted child has been ascertained.
  • the assets have secured pending the final settlement, possibly with a freezing order to make sure they are not transferred or dissipated without approval.

Only then it is safe and prudent to propose some form of mediation or other ADR.­­ Of course the problem is that having issued proceedings unilaterally at the outset, the prospects of out of court settlements becomes more limited.­ Nevertheless such action is very necessary at the outset in international cases.
 

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