Settling out of Court

What is Mediation?

Mediation in child custody disputes is a facilitated discussion between two parents that focuses on helping the parents reach an agreement acceptable to both parties.  Mediation (sometimes referred to as “conciliation”) can be one of the best ways to achieve results in custody disputes.  As a preventative measure, parents may be able to resolve a custody dispute before one parent takes drastic action and abducts the child to another country.  In cases where an international abduction has already taken place, mediation can also be an effective tool, particularly when conducted in a way that is culturally neutral and respectful of the need for quick resolutions in child abductions. 

What are the Benefits?

  • Less time: mediation generally can be completed more quickly than court cases.
  • More options (particularly Hague return cases): once agreement is reached about where the child will reside, parents can agree to custodial details that would be outside the perview of a court under the Hague Convention.  
  • Less intrusion: mediation is private, court is not.
  • Lower costs:  many professional mediators charge less than a lawyer – much less.
  • More likely to be a lasting solution: parents who agree to conditions will be more likely to abide by them.
  • Sometimes best for children: can prevent unnecessary relocation of a child in return scenarios.
  • Perspective: mediators can help parents understand cultural differences and what may be best for parents and children in the long run.

What can be Drawbacks?

  • Time: mediation can be used as a delaying tactic in Hague return cases and thus must be strictly time-limited and must not preclude court proceedings if agreement cannot be reached. 
  • Enforceability: in order to be legally binding, agreements must be recognized by a court or incorporated into a court order. 
  • Mediation is not always the best solution.  Sometimes the courts are the best choice, particularly when one of the parties is intimidated by the other, or when the case involves claims of abuse or neglect.

How does Mediation Work?

Mediation works like a discussion.  The two parents work with mediators, trained professionals who often have legal or social work backgrounds, to come to a solution to the controversy. The importance is placed upon the two parents reaching an agreement.

The goal of the mediator or mediators is to make sure that both parents are, for the most part, comfortable with the solution.  This idea is why discussion is so important to mediators.  Discussion, however, might not happen at one time or in one setting.  Mediators or parents can choose to meet in a group – parent, mediator, parent – or one-on-one if the animosity is too strong.  The important thing is that there is an exchange and flow of ideas.  However, most mediators will require that parties each have legal counsel to advise on the legal viability of any agreement reached.

Mediation for international cases may be a little different.  Language barriers and different legal systems may make resolution more difficult.  For that reason, many European nations have employed mediation teams with two mediators, one from each country involved. While this model can be very effective, in the United States the costs may be prohibitive. When a solution is reached, the parents typically sign a written mediation agreement.  Once filed with a court, this document is a public document and can be used in court if the agreement is ever violated. 

What could Hamper Mediation?

  • An inability or unwillingness to meet or listen
  • Criminal charges: once filed, criminal charges may be difficult or impossible to remove.

Things to Remember: 

  • Mediation does not solve all issues.
  • If your child has been abducted to a country that is a Hague Abduction Convention partner of the United States, ask your attorney whether you should proceed with a Hague return application at the same time you try mediation.  Mediation should not be used by a parent to delay Hague proceedings.
  • Be mindful of how long mediation takes.  Set a time limit for mediation talks, particularly where child abduction has occurred.
  • Focus on the needs of the child/children and wherever possible.

Additional Resources:

Each country handles the idea and practice of mediation differently.  Some countries may be working with a short term, trial mediation program for abduction issues.  Others have established mediation sources from international governing bodies like the European Union.  There are also non-governmental organizations that seek to provide aid in mediation.  Below are a few of the resources available to a parent looking for mediation help and guidance.

REMEMBER:  Ask your State Department case officer for more information.  Mediation is gaining ground and new resources are becoming available all the time.