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 [email protected]
• Mary Carroll, Managing Director, MiKK [email protected]
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