Mediating Cross-Border Family Cases Online

Moderated by Melissa Kucinski

In order to resolve a family dispute, a mediator must work hard to re-establish lost trust, and in a cross-border family dispute, the mediator must do so with additional obstacles, including understanding different cultural cues and body language. Because of the communication difficulties, mediators prefer handling family disputes through face-to-face interactions. However, in many cross-border family disputes, including those where one parent may have abducted his or her child overseas, it may be impossible to conduct mediation in person. Due to immigration impediments, the cost of travel, and pending legal actions, including criminal warrants, a parent may be reluctant or unable to travel to conduct mediation in person. Is online dispute resolution a reasonable alternative to parents who want to mediate, but cannot do so in the same location?

Join Melissa Kucinski for a discussion on using online dispute resolution in cross-border family cases.

Fact Pattern to Begin Discussion:

Mother, Jane (American), and Father, John (Scottish), are parents to an eleven-year-old son, Jack. The family resides in Edinburgh, Scotland, where John is employed. During Jack’s summer vacation from school, Jane and Jack travel to Boston, Massachusetts to visit Jane’s family. After four (4) weeks in Boston, Jane calls John, who remained in Scotland due to work. She informs John that she will not be returning to Scotland, and has enrolled Jack in the local Boston school for the fall. John has hired a lawyer to file a court action in Boston using an international treaty to obtain the return of Jack to Scotland. Prior to filing this action, he agrees to mediation.

Initial Questions to Ponder:

If you could conduct mediation in person, where should you do it?
What additional difficulties would be presented if you knew that John used to drink and when drunk, would be verbally aggressive towards Jane? Does this impact any decision to conduct the mediation in person? Online?
What confidentiality issues would exist with parents mediating online in two countries?
The parties are five hours apart in time zone – how would you approach scheduling mediation so that it is fair to both if you mediated with each in his or her own location?

Moderator Bio:

Melissa Kucinski is a family lawyer and mediator, adjunct law faculty member, and former consultant for the Hague Conference on Private International Law. She currently chairs the American Bar Association International Family Mediation Task Force. In 2012, she received the ABA Family Law Section’s Award for Outstanding Contribution to the Section. She is a member of the U.S. Department of State’s Advisory Committee on Private International Law. She has published half a dozen law review articles and has spoken at over a dozen continuing legal education courses, including overseas in the Netherlands and the UK on international parental abduction mediation.

______________________________________________

Return to Cyberweek 2013 Homepage

0 members like this

▶ Reply to This

Replies to This Discussion

Permalink Reply by Melissa Kucinski on November 7, 2013 at 8:10am

When you conduct a cross-border family mediation, it is possible that more than just the two parents and the mediator are involved. Some countries favor a co-mediation model. At times, you may need an interpreter. There may be attorneys for both parents, and perhaps even the child. In some cases, the child him or herself may need to be involved. There are grandparents, community members, elders, and others that help parents make decisions in certain cultures. How in the world do you conduct a mediation, using ODR, with all of these people?

▶ Reply

Permalink Reply by Krista Grace Jessacher on November 7, 2013 at 12:49pm

What a great discussion. Thank you Melissa. I agree with Patrick's point that these are very emotional cases, so a combination of local mediation and online mediation may be needed. But, the mediation has to be at the right time. As Colin mentioned, is the couple "ready" for mediation? I wonder at some of the criminal proceedings - were these parents desperate when they left or were they just unwilling to warn the other parent that this was their plan, all along. With such a far distance between the parents in this case, I would tend to favour 2 yrs here for Jack and 2 yrs there, alternating with summers with the other parent. With flexbiility in different years as Jack's activities, school transitions and social cliques/friends morph over the years. There are natural points in his life where a move back to the other parent wouldn't be so bad, and other years would be chaotc to Jack to have to "go live with the other parent, right now". Not something any child/teen would want to go through. In these long distance parenting situations, assuming each parent is a fairly decent parent (not perfect), then the moves should coincide with Jack's best development, opportunities.etc. but the concept that each parent should compete to see who is the "best parent" should be avoided.

▶ Reply

Permalink Reply by Melissa Kucinski on November 8, 2013 at 7:41am

There are definitely many options for families, if one is creative, when parents live so far apart.

One final question I will present - if there is a parental child abduction, particularly one where you can apply the Hague Convention on Parental Child Abduction, there is typically a strict timeframe in which to conduct mediation, or else one of the parties must file a court action. If a court action has already been filed, it is usually on an expedited track. Mediation may, at times, be conducted in a condensed timeframe, perhaps even right before a trial (which may be scheduled quite quickly under the treaty). It is easier to gather everyone and have some intense mediation sessions when everyone is in the same time zone. ODR will necessarily mean that mediation happens when parents are still far apart, accounting for multiple time zones, and may cause difficulty scheduling matters. How do we ensure ODR does not interfere with what are often strict timeframes in which mediation must be conducted?

▶ Reply

Permalink Reply by Jillian Post on November 8, 2013 at 8:55am

As someone who has experienced a divorce that was precipitated by D.V., involved a husband who was not American, and threats of taking children ... This story gives me the chills. Fortunately, the situation did not advance to an international exchange, but mediation was proposed to me and I vehemently turned it down. I was already on my way to studying mediation at the time and various red flags popped up immediately. Looking back, I think that was a mistake. Jump forward to now, after more time, education, and a bigger pool of experience and my thoughts as they apply to this case are:
1) For the initial screening process ODR seems like a no brainier.
2) Competent legal presence and guidance seems prudent, so again ODR seems like it could serve a purpose.
3)When we get to the exchange between parties the water gets murkier as it does so many times.

Of course you asked about pre-screening, and to stay on topic, I feel adamantly that ODR should play a function. And I can say that without reservation. What would be crucial is mediator competence (with regard to use of technology). I am still amazed, (this coming from someone who is no wizard themselves) at how shaky some are in the online environment, even after presenting an image of confidence and competence. As Colin mentioned earlier, proper encryption would also be a huge factor.
My final thoughts are that ODR makes so much sense in these situations, that we should let necessity be the mother of invention and forge ahead confidently.
Jillian P.

Melissa Kucinski said:

Thank you for your wonderful comments!

How could ODR factor into the initial screening process? Many cross-border family cases, particularly with a child abduction, involve significant allegations of harm or violence (whether substantiated or not). There may be multiple court cases ongoing in several jurisdictions with strict deadlines (and both parties might not be aware of all cases). There may be arrest warrants out for the parent who "abducted" the child. It is imperative that these cases are screened, but the screening will need to be conducted from a distance in nearly every case, even if the parties ultimately meet in person. Can ODR help with this?

▶ Reply

Permalink Reply by Patric Illigen on November 8, 2013 at 10:14am

Hi,

in Germany we have a special act inside the family-law. The judge can send the parents to a cost-free info talk about mediation to a mediator. The talk is around 30 to 45 minutes and gives general information about mediatiation according to the German Mediation Act. It´s special for divorces to clear up all relatd things to be regulated after a divorce.

BUT: Unfortunately nearly no judge is doing this. My experience is, that especially in complex divorces more and more people join mediation before going to the court to create a so called "amicable divorce". The advantage: The fees are reduced and the duration of the procedure at the court is very short. In this field mouth-to-mouth advertising works best, most of our mediations are divorce-mediations (most of them with very complex items....)

▶ Reply

Permalink Reply by Patric Illigen on November 8, 2013 at 10:17am

Melissa Kucinski said:

When you conduct a cross-border family mediation, it is possible that more than just the two parents and the mediator are involved. Some countries favor a co-mediation model. At times, you may need an interpreter. There may be attorneys for both parents, and perhaps even the child. In some cases, the child him or herself may need to be involved. There are grandparents, community members, elders, and others that help parents make decisions in certain cultures. How in the world do you conduct a mediation, using ODR, with all of these people?

It´s pretty easy: We are using MESUTRAIN LiveODR. In my system we can work with a team of two mediators and two more interpreters for example. And we have the space for up to 15 participants. It works!!!