INTERNATIONAL FAMILY MEDIATION DEVELOPING INTERNATIONAL FAMILY MEDIATION AND HARMONISING STANDARDS. by Ms Lisa Parkinson *

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1 CONF-FL-SP (2009) 2 E Strasbourg, 26/02/ th European Conference on Family Law INTERNATIONAL FAMILY MEDIATION Council of Europe, Strasbourg 16 March 2009 DEVELOPING INTERNATIONAL FAMILY MEDIATION AND HARMONISING STANDARDS by Ms Lisa Parkinson * The opinions expressed in this work are the responsibility of the author and do not necessarily reflect the official policy of the Council of Europe * Accredited family mediator, trainer and author, former member of the European Forum Standards Committee and founder member of World Mediation Forum, United Kingdom

2 This world needs peace-makers Nobel Committee on the Peace Prize for 2008 Growth of family mediation in England and Wales A great deal of positive work has been done at European level through the Council of Europe s 1998 Recommendation 1, legislation 2 and the European Parliament s Directive 3 to provide a framework for the development of mediation. Now is the time for further action to build on this work. In England and Wales, interdisciplinary work over the last 30 years has produced a shift in the culture of family law towards a settlement-seeking approach, with increased use of family mediation and collaborative law. In England, lawyers advising parties on family matters must refer them for a pre-mediation information meeting, individually or jointly, before legal aid can be obtained for a court application. These information meetings have greatly increased the use of mediation. In 2007/08, over 17,000 family cases were mediated with State funding, excluding those where both parties paid privately. Research studies have shown benefits and cost effectiveness. A survey by the National Audit Office reported that mediation is generally cheaper, quicker and less acrimonious than court proceedings and research shows it secures better outcomes, particularly for children 4. According to a Court of Appeal judge, there was no family case, however conflicted, that was not potentially open to successful mediation, even if mediation had not been attempted or had failed during the trial process. 5 Family mediation, in England and Wales, is used mainly in separation and divorce on any or all issues children, finance and property matters. It can also be used in other kinds of family dispute, such as grandparents seeking residence or contact with grandchildren, or the care of adult children with severe disabilities. In Bristol, referrals to mediation have increased threefold. Bristol Family Mediators Association undertook over 270 mediations in 2008, compared with 90 mediations in Family lawyers encourage their clients to accept mediation before they go to court. Their encouragement is very important and reflects the work that has been done with - and by - lawyers and judges, over three decades. International family mediation Mediation in international cases of parental child abduction is increasingly recognised as a specialism that needs to be more easily available, quickly accessible and used more readily. Mediation has no magic wand, but it can be quick, effective and child-centred, whereas legal processes in child abduction cases may be lengthy and risk causing trauma and lasting harm to the child. Evidence from child abduction cases shows that a child returned by court order may be removed from both parents and placed in a succession of foster-homes 6. The psychological harm to a small child, and indeed older children, of being separated from both parents for months, even years, is so serious that I believe institutionalised child abuse is not too strong a term. To increase use of mediation in international, as well as national cases, referral should be considered at each stage: i. before either party makes a child custody application, to help parents or other carers to reach agreements about children and avoid contested custody proceedings ii. where application is made for leave to remove a child from the jurisdiction or pending a court hearing of an application for return of an abducted child iii. where a defence is raised against an order to return a child, on the grounds that return would be harmful to the child, mediation can facilitate communication over the best interests of the child, explore options and look for an agreed outcome 1 Council of Europe Committee of Ministers (Recommendation No. (98) 1, 21 January Brussels II bis. Family Law Act 1996, England and Wales, Part III re-enacted in Access to Justice Act European Parliament Directive on Mediation in Civil and Commercial Matters 2008/52/EC, 21 May National Audit Office, Review, London March Al-Khatib v Masry [2005] 1Family Law Report. 6 Bucher A. The New Swiss Federal Act on International Child Abduction, Journal of Private International Law, August 2008.

3 iv. following the actual return of an abducted child under a court order, to facilitate agreements over the child s residence and contact arrangements. Agreements reached through mediation should be formalised in legally enforceable orders made with consent. We need to work together to address and overcome barriers, because mediation focuses everyone s attention directly and immediately on the needs of the child and encourages parties to work together as parents, rather than against each other as adversaries. So what can we do to mitigate the problems and achieve better outcomes for children? Under the new Swiss Federal Act on international child abduction, a central authority will establish a network of experts and institutions capable of acting expeditiously in giving advice, undertaking mediation and representing individual children 7. These Swiss measures should be incorporated in amendments to the Hague Convention that could be adopted at multilateral level. They could serve as a model for other States wishing to improve their practice in child abduction cases. But new rules are not sufficient on their own. Action is needed to: 1. Increase awareness and understanding of mediation through judicial awareness programmes, courses on mediation for lawyers and law students and the resources of the internet to disseminate information about mediation and how to refer to it. 2. Develop training standards and qualifications for family mediators A working party needs to be set up under the auspices of the Council of Europe, with the support of the Hague Conference and the European Commission, to draw up recommendations on training standards and qualifications for international family mediation. In 1991, following a conference in France, a group of family mediation trainers from six European countries set up the European Forum on Family Mediation Training and Research. Our main function was to formulate principles and standards for family mediation training. The Forum s Standards Committee, of which I was a member, published a Charter a set of standards - in 1992 in French and English. We revised and updated the Standards in a twoday meeting in Hamburg in January Basic principles were that mediation training must be interdisciplinary, so that mediators acquire a combination of savoir (knowledge), savoir-faire (know-how especially communication and mediation skills), and savoir-être (self-awareness, respect for cultural diversity and personal qualities, including the ability to relate to others). This training is challenging and needs to consist of four main elements: 1. Nationally and/or internationally recognised formal training to develop and adapt professional qualifications and experience in family law, psychology, court-related social work and family therapy to the new and distinct discipline of family mediation. 2. Practical training through a stage or placement where the trainee mediator begins to mediate with support, supervision and case analysis. A requirement for 40 or 70 hours of practical training is not sufficient, especially if it consists only of observation. Mediators need to develop their competence and confidence in practice, before they can be accredited. 3. Continuing professional development annually, with case analysis or supervision and a minimum continuing training requirement. 4. A test of competence leading to formal accreditation and providing a system of quality assurance. This is the system we use for the accreditation of family mediators by the State. It includes the principles and elements of the European Forum Standards but they are structured rather differently, with a longer period of practical training integrated with formal training. The test of competence involves the completion and submission of a portfolio (dossier) of 7 Ibid.

4 five documented mediations and case commentaries, giving concrete examples of how mediation knowledge and skills are applied in practice and also a testimony from the mediator s supervisor. To get a driving licence, knowledge of the law and the rules of the road are not sufficient. Learner drivers have to take a Driving Test with a qualified instructor to demonstrate their competence to drive a car, to manage it in traffic and when to apply the brakes! An academic qualification based on a degree, diploma or dissertation (mémoire) does not ensure competence. My colleague, Annette Mouttet, will speak more about the European Forum Standards. 3. Develop a New, Harmonised Standard and a Register for International Family Mediation We need a new, specialised Standard for international family mediation. We do not need an Anglo-Saxon system or a Latin system or a Nordic system: we need to incorporate different systems, agree equivalences and develop a standard for international family mediation. There should be a range of different models and a Register of international family mediators who have demonstrated that they meet the standard, with some test of competence 8. In 2005, International Social Service (ISS) in Geneva invited three mediation trainers from different countries to design training in a Mediation-Oriented Approach in Cross Border Cases for ISS workers and their partners 9. This small group of mediator trainers drafted a definition, principles and a short training programme, working intensively in two languages. A new working group set up by the Council of Europe on training and qualifications for international family mediation should include experienced mediator trainers from countries that have national standards for family mediation and knowledge of the international context. The group should preferably be bi-lingual or multi-lingual and not biased in favour of one particular model of cross border mediation. 4. A Code of Conduct for international family mediation covering confidentiality and its limits, the responsibilities of the mediator, formalisation of mediated agreements The rules and guide-lines of the European Code of Conduct for Mediators 10 need to be extended to cover the limits of confidentiality in international family mediation - for example, children at risk of serious harm the range of family issues that can be mediated and the legal enforceability of mediated agreements. 5. Different models of international family mediation for cross-border cases We also need to develop models of international family mediation that are adaptable to different cultures and circumstances, not only Westernised models. There are models already in use that could be developed further: A single mediator who undertakes face-to-face mediation. Co-mediators, preferably gender-balanced bi-national co-mediators, offering face-toface mediation. Shuttle mediation by co-mediators in different countries, each having contact with the party in their own country, liaison between the co-mediators and facilitated negotiations. Tele-mediation using skype and video conferencing enables mediation to progress online and on screen. Child-inclusive mediation where appropriate. Further training should be required for direct child involvement. There are models and research to draw from. Difficulties in these models are not insuperable. There could be a risk of co-mediators becoming partisan, aligning with one party and fighting the other mediator. Well-trained and experienced family mediators should be able to recognise and avoid these problems. 8 Parkinson L. Cross-Border Family Mediation, European Academy of Law, Trier, Parkinson L. A Mediation-Oriented Approach in Cross-Border Cases, ISS Geneva, April European Code of Conduct for Mediators, Brussels, 2 July 2004.

5 Research studies have not found evidence of them arising in practice. Mediators need good understanding of cultural diversity and if possible should be able to mediate bilingually without translators. Proposed criteria for membership of a register of international family mediators 1) Nationally recognised training in family mediation the equivalence of different national systems should be worked out and agreed. 2) First hand knowledge, or at least good understanding, of cultural and religious diversity. 3) Some test of competence in mediation skills and process. 4) Substantial experience in family mediation e.g. a minimum of 50 completed mediations. 5) Additional training for international family mediation. This need not be a 1-year academic diploma. A short, practice-oriented training can develop specialist skills and knowledge of international family law, international Conventions and the role of advising lawyers 11. Trainers should be experienced family mediators with additional international experience. 6) International mediators should preferably be able to mediate in at least two languages. Co-mediators need skills in communicating effectively with each other, as well as with the parties, in sharing information, exploring options and negotiating. Some specialist tools have been developed to facilitate these tasks. 12 Time and costs can be reduced greatly through mediation, especially bi-national comediation and tele-mediation. However, international family mediators need to be remunerated properly, because the work is very difficult and demanding and a high level of competence is required. Funding for mediation is an important issue. Mediation can produce net savings in time and costs and above all in reducing the emotional trauma of children and families. In summary, I am asking for an International Family Mediation Working Party to: harmonise qualifications for international family mediation set up a register of qualified family mediators extend the Code of Conduct for international cross border cases develop a range of models for international family mediation The challenges are there: may this conference generate the will and the energy to meet them! 11 Christoph Paul and Dr Jamie Walker Family Mediation in International Child Custody Conflicts: the Role of Consulting Attorneys American Journal of Family Law, vol.22 no 1, Spring International Social Service Children in Cross-Border Family Conflicts Geneva, April 2008.