June 17, 2016
How mediation can offer solutions.
Children suffer when disputing parents try to move them beyond the reach of the other, often across international and legal boundaries. Mediation is a way to resolve these disputes in many cases, Helen Freris writes.
The recent case of child abduction in Lebanon once again reminds us of the pain and turmoil in situations of international parental child abduction (IPCA). The grief of the left-behind parent can be imagined, but it is the children who ultimately bear the upheaval and dislocation caused by escalating parental hostility, and one parent’s attempt to remove them beyond the reach of the other.
As highlighted by the case in Lebanon, where the straightforward remedy of the 1980 Hague Convention on the Civil Aspects of International Child Abduction does not apply, parents may be faced with the complex and emotionally draining prospect of seeking resolution through the legal system of the country to which their child has been taken.
It is perhaps not surprising that desperate parents who hold out hope for a child’s swift return resort to the services of so-called child recovery agencies. Unfortunately, whether such returns are achieved or not, they leave even greater parental anger and conflict, as well as enormous financial losses for the clients, in their wake. Also, neither a judicial process nor a child recovery attempt will result in long-term sustainable outcomes for the children involved. After all, what happens for a child if they are ordered to remain in the country to which they have been removed, or they experience a series of attempted removals and re-abductions? The adults’ focus on the return does not resolve the child’s ongoing parenting needs.
Perhaps mediation can offer a solution to many families caught in this distressing situation, and maybe policymakers can steer popular opinion in favour of mediated rather than adversarial resolution of such situations.
In 2012, International Social Service (ISS) Australia drew on its extensive experience providing social work services to parents affected by IPCA to develop an international family mediation service, aiming to help resolve cross-border parenting disputes, including those involving IPCA. The service’s philosophy is grounded in the right of all children to maintain a relationship with both parents, unless contrary to their best interests, as guaranteed under Article 9 of the UN’s Convention on the Rights of the Child, which promotes the contribution of all involved parties in decision-making for children, again with the proviso that the child’s best interests are maintained.
Of course, not all situations are suitable for resolution via mediation. Some parents pose a risk to the safety of their children or the other parent, or the impact of family violence has engendered fear, resulting in a power imbalance not conducive to truly safe and collaborative mediation.
However, many situations can and do benefit from a neutral and independent mediation process, allowing parents to make decisions best suited to their children’s individual needs, and the adults’ cross-border living arrangements. Mediators cultivate parents’ expertise on their children, while also offering evidence-based insights into children’s developmental needs.
Likewise, the scope of mediation discussions is determined by the participants, and can range from a narrow focus on a child’s country of residence to long-range planning for the child’s relationship and interaction with each parent.
It is this which ensures the benefits of mediation beyond the mechanistic functionality of a legal agreement or court order. Though court orders are useful in providing clarity, mediation can often complement legal agreements through planning for children’s changing developmental needs, and the enhancement of the relationship between parents and children. Skilful mediation can gradually encourage parents to cast aside their unhelpful positions as victim and abductor, to become co-decision-makers for their children.
Policy initiatives to promote mediation in dispute resolution are becoming more common. Recent examples include the introduction of family dispute resolution in Australia in 2006, and the European Parliament’s 2008 directive encouraging the appropriate use of mediation in cross-border civil and commercial disputes within the European Union.
The acceptance of policy shifts towards mediation in the contentious area of IPCA depends on mediators’ effective cross-border collaboration and navigation of diverse cultural, social and legal landscapes. To this end, a recent joint pilot project between the Australian Family Court and the Japanese Ministry of Foreign Affairs engaged Japanese and Australian mediators in cross-cultural training to facilitate collaborative resolution of IPCA disputes involving Australian and Japanese parents. This highlighted, to judicial and government policymakers, the benefits of mediated, culturally relevant dispute settlement.
Though not appropriate in every case, mediation nevertheless invites parents to explore an alternative, either alongside or instead of traditional legal remedies, and offers the prospect of resolution in situations where parents have limited recourse to the law. Mediation practice advocates for the rights of children, and respect for the expertise of parents. It allows for the sound planning of children’s needs and cross-border parenting arrangements, while encouraging a shift to greater parental collaboration. Most importantly, mediation offers a safe forum for parents while avoiding children’s exposure to the potential physical and psychological hazards of re-abduction by child recovery agents.
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