International Family Mediation and the Law
Guide sections
• What is International Family Mediation?
• Can a mediator decide who is right or wrong?
• Is what I tell the mediator kept confidential?
• How much does mediation cost? Who pays the fees?
• My ex refuses to go to mediation. Is mediation possible?
• What kind of problems can mediation help me to resolve?
• Do courts and administrative authorities know about mediation?
• Can I call in mediation services after a court judgment?
• I do not have access to my children anymore. Can mediation help me?
• What are the advantages of going for mediation?
• Why should I go for mediation if we already have lawyers who are helping us?
• My ex does not accept or understand how things happen in my culture...
• I am worried that my partner might take our children abroad and not bring them back. Can mediation help?
• How can we talk to each other in mediation sessions if we cannot do so outside them?
• How can the mediation be carried out if we do not live in the same place?
• Can my children participate in the mediation?
• Can I have a discussion with the mediator alone?
• Can I bring a friend or someone to help me in the mediation?
• Can we have two mediators?
• Will my rights be respected during mediation?
• Does an agreement resulting from mediation have legal standing?
• What happens if mediation does not result in anything concrete?
• Will the mediated agreement have legal effect in another country?
• Do we have to suspend the legal proceedings in order to go for mediation?
• Will a mediator also give legal advice?
• I retained my children in my home country and I’m afraid to go back. What can I do?
• How can mediation help me get my child back?
• Is it ever too late for mediation?
• I have the impression that mediation is weaker than a judicial procedure…
• Will mediation work if the contact between myself and the children has been completely cut off?
• My ex has taken the children and refuses to communicate. How can the mediator reconnect us?
We all have a right to change our place of residence and thus begin a new life in another country. However, such a decision cannot be taken by a parent if it violates the rights of the other parent and the rights of their children to maintain regular links with both parents.
It is important to realise that questions of law play a critical role in cross-border family disputes. The legal situation can be extremely complex due to the interaction of two or more legal systems and various international, regional and/or bilateral legal instruments that are applicable.
Of particular relevance to children are a number of multilateral or regional instruments that aim to protect the right of the child to maintain “personal relations and direct contact with both parents on a regular basis” as set forth in the 1989 United Nations Convention on the Rights of the Child. These instruments include:
- the 1980 Hague Convention on the Civil Aspects of International Child Abduction;
- the 1980 Council of Europe Convention on Custody of Children;
- the 1989 Inter-American Convention on the International Return Of Children;
- the 1996 Hague Convention on the Protection of Children;
- the 2003 Council of Europe Convention on Contact Concerning Children;
- the Brussels II bis Regulation of the European Union
The decision to make an international move with a child should only be taken if it does not contravene the relevant national and international laws. Otherwise, the relocation would be considered to be wrongful removal of a child (see article 3 of the 1980 Hague Convention on International Child Abduction).
Due to the legal complexity of such cases, mediation in international family disputes has to be supported by specialised legal advice. An attempt at mediation or a successful mediation will not affect your rights to initiate or pursue court proceedings.
Lawyers specialised in cross-border cases and other experts have knowledge of the different international and national laws that apply to a case. This includes the regulations, limitation periods and time frames imposed by the relevant laws.
Specialised legal advice also empowers the parties to ensure that the mediation proceeds while respecting the rights of all persons concerned, particularly those of the children.
Legal advisers can give you information relating to the following points, among others, both before and during mediation:
- your rights and duties in relation to the law, above all in the area of parental responsibility, so that you can make informed decisions during mediation;
- any legal matters concerning separation or divorce that the parties cannot decide upon during mediation in a legally binding way;
- whether the mediated agreement conforms with all legal requirements in all the countries concerned;
- how the agreement can be made legally binding and enforceable in all the legal systems concerned;
- whether, in the case of a separation, the law requires you to take certain decisions or take certain actions before you begin mediation;
- protective measures that you can take if you think that there is a danger to the well-being of your child.
If a mediation is successful, the decisions taken by the participants are usually put in writing. This document is, depending on the countries, called a memorandum of understanding, a mediation summary or a mediated agreement.
Specialised lawyers or other experts giving specialist legal advice can assist in ensuring that the content and wording of this agreement are compatible with all applicable laws. They can also help to formulate it in the way necessary for it to be binding and enforceable in all the countries concerned. It is in your interest to ensure that the countries relevant to the conflict are obliged to recognise the agreement and that the agreement can be enforced by the judicial authorities in those countries.
As an agreement may not of itself be legally binding, steps may have to be taken to give it legal effect; this will enable the parties to take the matter to court if the agreement is not respected.
Giving the agreement legal effect may include, in legal terms, homologation of the agreement by a court or inclusion of the agreement’s content in a court decision, requesting recognition of that decision in the other country (/-ies) concerned or asking for homologation of the agreement in the other country (/-ies). A specialised lawyer will be able to give you the relevant information on how to have this done.
Find out what you should ask your legal adviser and what can be included in a mediated agreement here.
