International Family Mediation ISS Conference Melbourne, April 4th, 2016 Stephan Auerbach, ISS Switzerland

OVERVIEW o The needs of children and families in crossborder family disputes: typology of situations o Options for working out solutions o IFM and the ISS- “Mediation-based-approach” o MBA and IFM: legal framework and practical examples o Conclusion

The needs of children and families in crossborder family disputes (CFD): typology of situations 1)Access/contact demands (example Argentina-CH) 2)Relocation demands OR relocation- /abduction- fears (example Lebanon-CH) 3)IPCA (International Parental Child Abduction) (examples: “Wood-Case” Australia-CH and Algeria-CH) ALL of these 3 either between Hague- OR Non-Hague-States (applicability of THC 1980 and/or THC 1996)  Hugely diverging social, cultural, legal etc. frameworks!!

Basic options for working out solutions 1)Privately worked out solutions (parent-parent, or third persons involved) 2)Voluntary mediation 3)Court-ordered mediation 4)Legal proceedings without mediation

Some observations, based on ISS-Casework  CFD-cases: = enormous emotional hardship for both parents, and even more for their children  Importance to focus on children as most vulnerable parts of the family system, while showing empathy for either parent  Hard stand for voluntary mediation (many obstacles)  Very little court-ordered mediations in most countries (except Australia, Quebec, ….)  World-wide very few cases lead to “formal” IFM-procedures (= in-house or online-setting with both parents simultaneously present during mediation session)  Development and conceptualization of the ISS- ”Mediation-based approach (MBA)” 

THE MEDIATION BASED APPROACH (MBA) Principles and tools taken from mediation: Active listening, empathy multi-perspective, multi-partiality Future- and solution-oriented Non-violent communication Empowerment Pragmatism, creativity

MEDIATION VS. THE ISS-MBA Formal mediation and the MBA have many things in common, but also many not: In common: ethics, principles, tools and skills of mediation, basic mediation training requirements oNOT in common: no formal training requirements, no fixed frame- work of intervention, no formal IFM-setting

Type of service Case in time « Child focus » Solution in the best interest of the child Private or public request «Intake»: Case Analysis Potential for ISS- develop- ment Social and legal information Home studies / Child protection measures Councelling Mediation Legal services « Mediation based approach », Tools and skills from mediation Permanent evaluation: adapting the method to achieve the objective Entire ISS- network Other organisms, some ISS branches Re-orientation of the method of intervention according to the objective Examples of ISS case-flow Assessment: Child focus, action plan ILLUSTRATION OF DIFFERENCE BETWEEN MEDIATION AND THE ISS-MEDIATION- BASED-APPROACH

MBA and IFM: legal framework and practical examples (I): Access/contact cases Access/contact-cases: Example Argentina-CH-case: No direct parental agreement possible ISS-MBA: Shuttle-conversations with father (Argentina, skype) and mother (CH, skype) No agreement through shuttle-MBA, but slight softening of mother’s position Father introduces access demand through Art. 21 Hague 1980 Abduction Convention (access rights) Legal proceedings now open in CH (risk that mother will refuse to cooperate) Existing international legal framework for mediation in access/contact cases: Art. 31b of THC 1996 (but limited ratifications and practical application)

MBA and IFM: legal framework and practical examples (II): IPCA cases IPCA in Hague States: art. 7c THC 1980 (CAs work for “amicable solutions”)  weak coverage and application CH: art. 4 and 8 Swiss Federal Act on Child Abduction IPCA in Non-Hague States: Example Algeria-CH: Unlawful retention of two girls in Algeria by the father No direct parental agreement possible No international legal framework for mediation (or return) Limited legal possibilities in the country of abduction ISS response: Intensive MBA-counselling with left-behind mother Increasing contact- and visiting arrangements in Algeria  Regular contact and visits of mother and children

The Mediation-based-approach (MBA) in IPCA cases…. Systematic multi-partiality: Respect (instead of condemnation) of “abducting” parent Empathy (instead of support) for the left-behind parent De-victimization and empowerment of the left-behind parent “Child focus”: priority for the regular contact child-parent Tailor-made solutions: short-, mid-, long-term

Privileged lines of action: Regular visits by the “left-behind” parent to the child (even on the territory of the abducting parent!) Criminal proceedings only later, if at all (allows return of the abducting parent) Identify formal and informal mediators and facilitate dialogue between parents, grand-parents, extended family, ISS members etc. Examples with Non-Hague States: case “Leila and Zoha” (Algeria) and case “Sofia and Irène” (Morocco) The Mediation-based-approach (MBA) in IPCA cases….

Advantages and limits of the MBA in IPCA cases with Non- Hague States Advantages Maximum control over the situation (compared to handing it over to lawyers) All options remain open (including voluntary return) Limitation of negative effects for children Child keeps contact with both parents Less costly than legal action

Advantages and limits of the MBA in IPCA cases with Non- Hague States Limits  No (or insufficient) legal framework for a formal mediation procedure or a legal solution  No repair for the feeling of “injustice” for the left-behind parent  The “least bad solution” (dropping the hope for the presumably “best solution”: return of the child)  Huge investment of time to change the mind-set of both parents and re-focus them on the child  Return to status quo ante is rare: ongoing frustrations!

In summary: ISS role and services in IPCA cases…. IPCA within Hague member states Complementarity with national Central Authorities Service of information for parents and authorities A place for thought, psycho-social counselling and legal information Facilitate contact and visits between child and left-behind parent Assessment of the situation of the child (social report) International Family Mediation Follow-up of the situation after the return of the child IPCA with Non-Hague member states Cooperation with Foreign Affairs / Consular services and embassies Same services as above!

Conclusion If we really want to effectively support children and families in crossborder conflicts (in Hague- and even more in Non-Hague- States), we must adapt the setting, be flexible and explore new ways of mediating!  Huge potential for the MBA!