Crossing Boundaries: Reconciling Law, Culture And Values In International Family Mediation Helen Stalford*

Journal of Social Welfare & Family Law Vol. 32, No. 2, June 2010, 155–168

Crossing boundaries: reconciling law, culture and values in international family mediation
Helen Stalford*
Liverpool Law School, University of Liverpool, UK Mediation is now widely advocated as a favourable alternative to judicial prescription in a family justice context, prompting the development of a critical mass ofprofessional expertise in this area. While academic research and debate on mediation has also grown accordingly, there have been comparatively few attempts, particularly in a European context, to consider the application of mediation to family disputes that straddle geographical, cultural, linguistic and legal boundaries. This is in spite of the growing incidence of international relationshipformation and dissolution, itself the product of an increasingly multi-cultural, multi-ethnic and multi-national landscape created largely by the progressive liberalisation of migration policies and the globalised market economy. A complex mesh of bi-lateral, private international, Council of Europe and, latterly, EU instruments, have been developed to regulate jurisdictional conflicts and ensure thesmooth recognition and enforcement of divorce and parental responsibility agreements across borders. The widespread shift towards extra-judicial approaches to determining post-divorce arrangements at the national level demands a closer look, however, at whether mediation provides an appropriate, alternative response to this phenomenon. This paper therefore considers whether the regulatory andprofessional framework currently governing trans-national disputes is sufficiently robust to meet the (often more complex) dynamics of international family life. The first section summarises developments at International and EU level to regulate and facilitate this form of alternative dispute resolution. The second section pinpoints some of the logistical challenges associated with cross-nationalmediation and explores whether the framework responds sufficiently to them. The third section questions the efficacy and appropriateness of mediation in the specific and more sinister manifestation of international family disputes: that of cross-national child abduction. The final section speculates on the future of mediation at the trans-national level, suggesting how it might be improved to betteraccommodate the needs of families engaged in the process. Keywords: family mediation; abduction; private international law; EU family law; cross-national mediation

1. Introduction The term ‘family law’ is becoming increasingly incongruous as practitioners and parties alike readily embrace alternative, non-litigious forms of dispute resolution to resolve issues around contact, residence, maintenanceand ancillary relief. The rising popularity of mediation in particular is evidenced in the increasing rates of referral to mediation as a first port of call for disputing parties, and in a growing tendency among practitioners to

*Email: stalford@liverpool.ac.uk
ISSN 0964-9069 print/ISSN 1469-9621 online q 2010 Taylor & Francis DOI: 10.1080/09649069.2010.506311 http://www.informaworld.com

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incorporate mediation training into their professional skills portfolio. The benefits of this process have been extensively (although not uncontroversially) appraised for diverting disputes away from the notoriously overburdened family courts, thereby expediting agreement on various disputes and reducing costs (Parkinson 1997, Roberts 2008). Others have applauded the process foralleviating much of the trauma and pressure associated with legal proceedings, a prominent motivation in cases involving children (Lansky et al. 2007). The argument goes that the relative intimacy and voluntariness of mediation is also regarded as deeply empowering for the parties, giving them the freedom to air deep-rooted emotional grievances, thereby clearing the way for more reasoned...