Stanford Law Review: Volume 64, Issue 3 - March 2012
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Some experts consider mediation in such cases generally inappropriate, for a number of reasons: 1 the moment of separation from the abuser is the most dangerous time for the victim at risk or 2 victims of domestic violence often have difficulties in advocating their own interests when facing the abuser.
American Journal of Psychiatry
Others [many] experts are against a general exclusion of mediation in cases involving domestic violence, provided that well-trained professionals knowledgeable in the subject matter are involved. We think it is indeed necessary to mediate in such cases because, on one hand, the problem is too big to rule out the possibility to choose mediation to solve these issues and the other hand, maybe the victim of domestic violence may also feel more comfortable in the controlled and confidential mediation environment.
But the analysis goes beyond this, because one thing are the violence allegations under the domestic context and other thing are cases of violence in an international context. Mediating disputes involving domestic violence allegations has proven exceptionally challenging and highly controversial in the domestic context and, likewise, in the international context attending the states' incompatible social and cultural norms, among others, can endanger the parties and adversely impact the mediation process and, accordingly, the outcome; that is, every compelling reason not to mediate cases involving domestic violence in the domestic context is amplified in the international context.
Yet proper guidance is required to help the victim understand and address this critical question or situation. In this context, in relation to the mediation process there are many ways in which it can be adapted to protect and empower the victim. Finally, according with the Guide of Good Practice, mediation must not put the life or safety of any person at risk, especially those of the victim of domestic violence, family members or the mediator.
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The choice between direct and indirect mediation, the mediation venue and the mediation model and method must be adapted to the circumstances of the case. Where mediation is considered suitable in a case involving an issue of domestic violence, it needs to be conducted by experienced mediators specially trained to mediate in such circumstances. We wish to note, first of all, that the present section deals with a topic that is not included in the Guide to Good Practice of the Hague Convention, but it is of utmost importance and hence the tendency to propose the implementation of ODR or electronic tools when we speak of cases of international abduction, maybe the ODR could provides a solution for practical issues such as migration barriers, conflict of law or the recognition and enforcement on cross border voluntary agreement, which present major challenges to private international law indicated in previous sections.
Likewise, it is important to highlight that the current debate about the necessity for the implementation of ODR or the debate about it, for instance, where the mediation is commonly referred to as ADR and not as a primary form of dispute resolution will be outdated shortly and we will find ourselves asking why did such doubts ever arise.
That way, keeping in sight the current debate, although mediation strives to make parties meet, long distances as well as the potential for confrontation in this type of cases, could make online dispute resolution ODR a valuable tool worth considering. ODR was originally introduced as tool for e-commerce disputes, however it has become increasingly important in family custody disputes. The main differences between an international e-commerce dispute and an international child abduction is the fact that the latter does not originate online but this factor is not necessarily determinant to reject this mechanism of ODR in cases involving international families.
Online mediation occasionally faces criticism stating that it imposes a distance on the parties. However this is not the case; on the contrary, the Internet brings people close together. Therefore, we will turn our attention to other dynamics in mediation and the use of communication technologies to mediate from a distance. Technology is around the world, in some countries with more potential and other countries with less presence, but the technology is here and opens the possibilities of communication and we need to use for the dispute resolution in international child abduction case too.
Many mediators prefer to mediate a dispute face-to-face for multiple good or positive reasons such as to be able to perceive the hands or feet motion of the client and thus detect some emotion and work with this in the mediation process but is often times impossible to do due to the cost to travel, the difficulty in getting a flight from the origin country, the impossibility to obtain a visa, as well as criminal charges, etc. Therefore, some mediators seek to help their clients through the numerous electronic media, for instance, e-mail, video-conference or specific platform established for the civil, commercial or family mediation.
International child abduction is a complicated legal issue marked by urgency and poor communication so the support of international organizations like the Hague Conference on Private International Law is essential. This paper is focused on the actions conducive to the development of mediation services to assist where appropriate in the resolution of cross-frontier disputes concerning kidnapping by one of the parents where ODR should also be present. Cross-border mediations involve many actors, among others: 1. One o two mediators; 2. Parents biological, adoptive or de facto ; 3. Lawyers; 4.
Third parties; or 5. In those cases a mediation may require the use of technology to facilitate communication like a phone, e-mail, Internet, skype or software to help the parties co-parent, even an On Line Dispute Resolution platform, etc. Cross-border family mediations need, additionally, a "technological savvy", particularly if the use of technology implies writing i. Apart from these skills, he may have to listen, reflect or empathize, skills that are not necessarily learned through training or a formation process. The standards and credentials for mediators should include these technological skills to be able to perform a cross-border mediation.
Family mediators are always seeking ways to expeditiously and efficiently mediate their cases and the use of technology can be an answer. The advantages or benefits to using technology in mediation are numerous and they vary according to the interlocutor. Mediators can: 1. Advertise their services; 2.
Services on Demand
Find information quickly about laws, for instance; 3. Communicate separately or jointly with the parents in a mediation; 4. Send documents; 5. Send an agreements' draft and "discuss" about it even in "real time" by chats; 6. Caucus, that is, conduct separate sessions for the parents and save time if it is done on line; 7. To "Bridge distances" and 8. Reduce time barriers and all of it consequently deescalate contentious emotions brought on by the parties being in the same physical space.
Parents or clients, judges, Central Authorities can: 1. Research the mediator's competency or 2. Research about the selected mediator; 3.
Avoid a non-verbal language that may be harmful or stressful face-to-face, this benefit can be especially applicable for custody disputes. In other words, the use of the technologies and specifically, On Line Dispute Resolution has several benefits, apart from early resolution: 1. It is more effective; 2. It is automatable; 3. Saves costs and 4. Improves satisfaction of the parties involved.
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But, maybe, not everything is positive with the use of technologies. One of the main disadvantages of using technology in mediation can be the fact that we must also acknowledge that technology may be inaccessible to many parents due to expense, location, education or cultural perception. The online environment, as it can be seen, is a double-edged sword but, in our view the scale tips towards the advantages.
For instance, regardless of the fact that gestures are a guide and a tool for the mediator's better understanding of a situation, it is not possible to perceive or discern in a mediation conducted over the telephone or e-mail the bad gestures of the parents, which are always harmful when trying to agree about your marriage or your child.
In international child abduction cases is necessary work towards a positive and long lasting relationship between the parties in order to avoid re-abductions too, the ODR in those cases can help to find the necessary communication. Furthermore, technology may aid the mediation in an international parental child abduction with domestic violence allegations and "may also allow a victim to have a voice, to not fear repercussions, and to allow him or her to feel secure in their communications".
In some jurisdictions it is possible for the mediator to hear a child, with sufficient age and maturity, and for the mediator, when the mediation is not conducted where the child is located, to know and to see the minor, which is likewise significant. Children tend to have technologically savvy and may feel comfortable texting or e-mailing a mediator. On the other hand, a special handicap for mediation and technology maybe the cultures involved, that is, "while technology may be useful in some mediations, parents may be unable to exhibit their cultural traits through nonverbal communication, imperceptible through some technologies".
Technology offers a number of benefits to its users: parents can communicate in a safe environment, where conversations are transparent and recorded, the possibility of confrontation of a face-to-face is eliminated and where the child is not placed in a situation in which he might interfere with parental communication. Some Experiences: National Programs.
Mediation in international cases needs a special treatment because there are language and cultural barriers and different legal systems that may complicate a resolution. For that reason, many nations have employed mediation teams with two mediators, one from each country involved, with a special preparation. A very effective model indeed but, maybe, at a prohibitive cost. Germany has come a long way in bi-national projects about cross-border child custody mediation and Germany engaged other countries, in subsequent years, in structuring its mediation standards, especially noteworthy is the work conducted by the Bundes-Arbeitsgemeinschaft fur Familien-Mediation BAFM.
In that sense, the German structure is established by the co-mediation with a balance: a woman and a man; a legal field and a psycho-social field; it is preferred, to have a German mediator and the other from the country of origin of other parent or at least a mediator who speaks the language of the other partner and the mediation is held in the country where the child is located at present with the intention to enable contact, as well, among the left behind parent and the child or children, between mediation sessions.
Germany highlights the necessity to have sufficient knowledge about cultural idiosyncrasies. Finally, the preference expressed in the German program is for mediations face-to-face and their proposal to reduce the cost of mediations, is to conduct them in a one weekend block whenever possible.
This should enable the process to meet the Hague Convention deadline, i. Notwithstanding the German profile described earlier, there is a tendency lately that involves a strategy in which being selected as a mediator, depends on how closely that person is aligned with a case and the parents involved, how the mediator can structure the process to build trust between the parents and allow for the left behind parent to see his or her child, when and how to involve other people in the process, where the mediation will occur, whether technology must or should be used to conduct mediation at a distance through On Line Dispute Resolution; all this to carry out a successful International Family Mediation case.