Research conducted by the American Bar Association, Center on Children and the Law reports research findings that suggest traditional family mediation is not appropriate for high conflict abducting families (Johnston, Sagatun-Edward, & Girdner, 2001). The United States responded by supporting efforts by The Hague Bureau on International Private Law to explore the development of an effective family mediation model that could address the concerns of parents separated by international borders. The Hague Permanent Bureau undertook studies on the how a family mediation model might operate as an extension of The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.  It is under the umbrella of this treaty that cross border family mediation developed. In 2012, the first international standards were published for cross border family mediation. Cross border mediation is a specialized branch of family mediation that addresses the unique characteristics found in families separated by international borders. This paper introduces the characteristics found in families most likely to experience the wrongful removal or retention of their child across international borders and the establishment and standards for cross border mediation designed to address these conflicts.

     Child custody disputes involving denial of access or custodial interference has become epidemic. The most insidious form of wrongful remove or retention of a child across international borders is defined as International Parental Kidnapping. There is also an increase in children who are separated across international borders due to relocation issues after divorce or relationship breakup. Millennial families are increasingly made up of individuals who originate from different countries. When families separate, they often return to a place where they hold significant connections. There is a direct correlation between the continued increase in the incidence of international child abduction and the increase in bicultural divorce. That increase is by large part, a by-product of the characteristics found in millennial families.

     Nearly 1 in 7 new marriages in the USA were bicultural in 2010 (Chen, 2010). Research suggests that 61.8% of international child abductions from the USA were committed in families where each parent held citizenship in another country and an additional 16.5% held dual citizenship (Chiancone and Girdner, 1998). The lack of understanding and appreciation of the others’ cultural traditions, values, and identity creates conflict. The level of conflict in bicultural marriages may place the couple at greater risk for domestic violence (Chin, 1994). Domestic violence is defined differently by individuals and is heavily influenced by culture. One party may deny their actions are abusive when the other alleges abuse. They may differ on what constitutes domestic violence or abuse. Left behind parents alleged high rates of domestic violence (psychical, psychological and sexual) and child abuse and neglect (Chiancone and Girdner, 1998).

     Immigration to the US is at its highest level since the early 20th century. Bi-cultural marriages present complex family dynamics when parents differ on child-rearing notions. The rate of divorce in bicultural marriages is higher than in mono-cultural marriages, and the rate of bi-cultural marriages continues to grow (Donovan, 2004). Differing cultural views and traditions between couples tend to become a greater concern after children are born.  These may include parenting practices, the role of mothers, fathers, and extended family members, and the understanding of each individual’s role in the family. When conflict occurs, the parties may not be able to resolve their disputes in a manner that is acceptable to both. Bi-cultural parents experience international abduction at a much greater rate than mono-cultural parents (Chiancone and Girdner, 1998).  The majority of international parental kidnappings occurred in families with parents originate from different countries, with the abducting parent returning to his country of origin with the child after marital break-up (Johnston, Sagatun-Edwards, Blomquist and Girdner, 2001).  The greater the difference in parental cultures- the greater the risk for a child to be abducted (Dabbagh, 2011). The effects on the child have been described as abuse. Children can suffer from a variety of attachment disorders (Faulkner, 1999).

“Many transnational marriages work but the majority fail, and when children are involved, it is tragic…Cultural clashes peak as each parent begins to instill in his or her children loyalty for his or he culture and religion. It is the children who are victimized…Cross-cultural marriages are not advisable…The children  of broken transnational marriages may be more predisposed to aggression, poor concentration, depression and low academic achievement in spite of intelligence…[Parental abduction] is the most traumatic experience a child may have in his or her life. Parentally abducted children usually suffer post-traumatic stress disorder-nightmares, insomnia, tremors, complete absence of trust –and are more prone to obsessive compulsive disorder, which turns them into hesitant, frightened, identity-less characters for life” (Shahine, 2003).

     Approximately 1,000 children from the United States are wrongfully removed or retained across international borders by a parent or family member each year (Martin, Martin & Martin, 2004). Other countries are reporting increasing incidence of international parental abduction. Efforts to combat this global ill has included the creation of an international treaty, titled the Hague Convention of 25 October 1980 on the Civil Aspects on International Child Abduction ("Full text: Convention," 1980). The 1980 Hague Child Abduction Convention defines a judicial process designed to identify an abducted child’s home state through litigation for the purpose of returning a child. The United States put the Hague child abduction treaty in force in 1988 through legislation by way of federal law titled The International Child Abduction Remedies Act (ICARA).   The seriousness of child abduction has resulted in criminal law.

    International Parental Kidnapping Act (18 U.S.C. § 1204– International parental kidnapping, 1993)  criminalizes international parental kidnapping on a federal level in the United States. A variety of law enforcement agencies may become involved such as FBI, INTERPOL, and The U.S. Department of State. The taking parents may find their photo on the Internet as a wanted fugitive. Parents have taken their children without knowledge of the consequences. They have been arrested and extradited from foreign countries on charges of international parental kidnapping. The child suffers when a parent is placed into the custody of law enforcement.

     Recognizing the need for the international protection of children and families, the Child Abduction Section of The Hague Conference on Private International Law created a Working Party within the context of the “Malta Process” to investigate cross border family mediation. Efforts resulted in the publication of the Mediation: Guide to Good Practice (Mediation, Guide 2012). It was crafted to address the unique characteristics found in families separated by international borders.  It is not traditional family mediation. “In view of the particular nature of mediation in international child abduction cases, only experienced family mediators preferably having received specific training for international family mediation and, more specifically, mediation in international child abduction cases should conduct mediation in such cases (Mediation, Guide 2012).”

     Professional standards for mediators providing cross border mediation include:

• Confidentiality
• Neutrality
• Do Not Give legal Advice
• Legal Competency
• Get informed consent of parties to mediate (Agreement/contract to Mediate)
• Mediators Do not represent either party
• Voluntary Process

Like court annexed family mediation, the cross border mediator supports the mediation process by explaining how mediation works and the roles of those involved. This is done during pre-mediation were the parties can discuss the terms of the mediation, an explanation of the mediator’s role, confidentiality, and the right of the disputants to have Legal representation.

     A primary concern parties often discuss is visitation when the child and non-residential parent are separated by international borders. Creating agreements are influenced by the destination country, the age of the child, work/school schedules, child/parent ability to travel, health and safety concerns, financial ability, as well as the likelihood for the party’s agreement to be enforced abroad. This may be particularly problematic in cases where a child has been previously abducted and warrants are outstanding for a parent or when a residing or destination country is experiencing civil unrest, war, or new governments. The mediator should have an understanding of different legal frameworks and how they work. Agreements must be feasible and enforceable in an international context. Conflicting cultural practices or traditions held by the parties may create a safety or even human rights concern.

     Traditions associated with marriage, parenting, coming-of-age, and religion are usually deep rooted. Cultural traditions and practices that may have been central to the parents’ disputes when they were together usually continue after they have separated. The mediator should possess a competence regarding a wide range of intimate cultural practices.  A mediator cannot assist parents to craft an agreement that supports illegal practices. Dilemmas occur when there are conflicting law codes in the countries the parties wish to have their agreement put into force. For example, female circumcision is legal in Egypt but it is not legal in the United States. A mediator cannot craft an agreement reflecting the parents agreed intent to have their child circumcised as part of their parenting plan with the view that it would be enforced in United States. Mediators should not discount a parent’s concern over the other parent’s intent to exercise unilateral parental authority regarding illegal or disturbing practices. Practices or traditions that may arise during mediation may include:

•           Breast Ironing

•           Gavage

•           Male/Female Circumcision

•           Arranged marriage

•           Honor Killing

•           Forced/Underage Marriage

•           Family bed

•           Withholding medical care for the child due to religious beliefs

•           Forced religious conversions or persecution

     Mediation methodologies vary among mediators. Cross border mediation recognizes the many different approaches to mediation such as facilitative, narrative, evaluative, and transformative practices within the standards and guidelines of the Cross border mediation manual. Pre-mediation sessions are the norm and the use of caucus may or may not be included in cross border mediation. Multiple mediation sessions are often needed to assist the parties in reaching a settlement. Agreements should be reviewed by competent legal professionals understanding the law codes in the jurisdictions in which the party’s settlement is to be presented for enforcement. Language needs should be supported with qualified, unbiased translators.

     Communication needs should in no way be confused with language needs. The cultural aspects of cross border family disputes should not be minimized. Parties to mediation should not be disenfranchised, marginalized, or experience inequity during the mediation process due to gender, race, nationality, religious affiliation or other circumstance. The mediators should be self-aware and sensitive to the cultural expressions of parental rights, roles, and responsibilities of the parties. The cross border mediator should never use coercion to force a parenting model requiring one or both parties in mediation to assimilate to the mediator’s values and beliefs. The exceptions would be regarding matters of law or issues of power and abuse. Behaviors that reveal or include abuse, neglect, threats, insults, or violence by any participant in the mediation should not be tolerated.

     Cross border mediator safety and security includes environmental threats, and/or interaction with individuals with violent histories. Cases with histories of violence, mental illness, and substance abuse may not be appropriate to mediate. Mediators traveling for the purpose of mediation may face environmental threats including civil unrest, war, natural disaster, or disease epidemic. Mediators may not give enough thought to possible dangers to themselves. Family Courts have armed security. Police officers responding to domestic disturbance calls often wear bullet proof vests. Mediators go to work with a smile.

     Cross border family mediation is still in its infancy. As the globalization of society influences an ever growing population of multicultural families the need for appropriate and effective resources to support millennial families will continue. Cross border mediation can be an effective and beneficial approach to families in conflict that are separated by international borders. Countries supportive of these efforts have begun to establish federal offices to oversee their cross border family mediation programs. These offices are referred to as Central Point of Contacts (CPC). In the United States the CPC is:

Beth H. Cooper

Branch Chief, Incoming Abductions

Office of Children's Issues

U.S. Central Authority for the Hague Abduction Convention

U.S. Department of State

202-663-2928

cooperbh@state.gov