AMICABLE Project Presents:
- An EU-wide Practical Legal Guidebook “Best Practice Tool” and four country-specific Best Practice Tools (for Spain, Poland, Italy and Germany) assisting Lawyers and Judges with the cross-border enforceability & recognition of mediated agreements in child abduction and relocations cases in the EU (available in English, Polish, Spanish, Italian and German).
- A Best Practice Model for incorporating mediation into the tight timeframe of child abduction court proceedings.
Summary of the AMICABLE Project
The cross-border enforceability and recognition of mediated agreements in cases of parental responsibility and child abduction cases is a complicated area of law. Currently none of the existing EU or international legal instruments provide any practical guidance on this for lawyers and judges. This is therefore a key area that required remedial measures of some sort.
Another area of concern relates to proportionately low number of referrals to mediation by judges in EU child abduction cases. Here the tight timeframe of Hague child abduction proceedings is often cited by judges as a reason as to why parents are not referred to mediation.
The AMICABLE project sought to address those two specific areas of need and concern. Through the development of Best Practice Tools assisting legal practitioners with the cross-border enforceability of mediated family agreements and the presentation of a Best Practice Model for mediation in child abduction proceedings much needed assistance was provided for legal practitioners.
The AMICABLE project is an EC co-financed (2018-2021) project which was conceived by MiKK – International Mediation Centre for Family Conflict and Child Abduction (Project Co-ordinator) bringing together a Project Consortium of legal experts in the field from four different EU Member States: Spain, Poland, Italy and Germany.
The project is supported by a Steering Committee consisting of key stakeholders in child abduction matters, custody disputes and mediation: the Central Authorities and Hague Liaison Judges of Poland, Italy, Spain and Germany, the Hague Conference on Private International Law (HCCH), Prof Paul Beaumont (HCCH Expert Group), Ewa Kopacz, European Parliament Vice President and EP Coordinator on Children’s Rights and GEMME the EU Association of Judges for Mediation. For details on the Consortium and Steering Committee please refer to the AMICABLE website. www.amicable-eu.org.
On 11-12th June 2021 the AMICABLE Project successfully concluded with a final Conference (online from Berlin, Harnack Haus) where the project Partners presented the results of their research concerning the Best Practice Tools and the Best Practice Model. Furthermore, six Workshops gave participants the opportunity to test the Best Practice Tool and key international speakers imparted expert knowledge about topics surrounding child abduction, mediation and cross-border custody disputes. Both the Best Practice Tool and the Best Practice Model received a big thumbs up by the participants at the Final Conference as well as at the National Seminars which were organized by the project partners prior to the conference in the spring of 2021 in Alicante, Wroclaw and Milan.
The Best Practice Tools will be available in mid July 2021 on the AMICABLE Project website www.amicable-eu.org for downloading. You may also contact the MiKK office beforehand if you wish to receive the Tools in pdf Format prior to this at amicable@mikk-ev.de
The Rationale of the AMICABLE Project
A “disconnect” exists between the widely recognized benefits of mediation in civil and commercial matters and its present very low uptake in the EU Member States. This discrepancy has also been termed the “EU Mediation Paradox” (Rebooting the Mediation Directive, 2014).
The effectiveness and efficiency of mediation as an alternative dispute resolution method in international cases of parental responsibility and child abduction cases is widely recognized and acknowledged. For example, in the European Commission public consultation (Assessment Study, 2015) it was noted that mediation is more cost effective and faster than court proceedings, and that mediated agreements tend to be more sustainable. Furthermore, it was noted that mediation in international child abduction cases helps to safeguard the best interests of the child and has shown to improve the well-being of children and the parent-child relationship. In yet another consultation there was large consensus among EU Member States that mediation should be facilitated during the return procedure in child abduction cases to improve the current return procedure system. The applicable international and EU legal instruments also encourage family mediation and the amicable settlement of the family dispute by other means of alternative dispute resolution.
However, despite these recognized benefits, it is a fact that mediation in civil and commercial matters is still used in less than 1% of all cases litigated in the EU (Rebooting the Mediation Directive, p.162).
Different Research studies point to a number of possible reasons for the above mentioned “disconnect”. For example, numerous stakeholders and experts questioned for the Assessment Study identified the insufficient promotion of mediation in international family as a likely reason. Other research studies suggest lack of finances, as many parents who want to mediate, simply cannot afford the costs for mediation. In most EU Member States there is no legal aid for mediation. A further reason also cited by experts (Assessment Study) is the lack of rules in the BRIIa Regulation “concerning the mutual recognition rule for mediation agreements” across EU Member States.
MiKK’s Pre-Mediation & Advicory Service Experience
MiKK’s Pre-Mediation & Advisory Service is very familiar, too, with these reasons often cited by parents who contact the organization in cases of cross-border parental disputes and child abduction. Since MiKK started operating almost 20 years ago, the organizations Pre-Mediation Service has been contacted by thousands of parents (both EU and non EU) wishing to resolve their cross-border family conflict by way of mediation. As a matter of routine MiKK also speaks to the parents’ lawyers. In addition, Judges and Central Authorities wishing to set up a mediation with bi-lingual cross-border mediators from the MiKK Network, also contact MiKK. Those parents (and their lawyers) that decide against a mediation often cite as a reason the perceived lack of legal certainty concerning the cross-border enforceability and recognition of mediated agreements. MiKK’s practical experience therefore also echoes the research findings that the difficulty in having a mediated agreement recognized cross-border, i.e. in another EU Member State or in another Non-EU country appears to be an underlying reason as to why mediation is not taken up in more cases. It is likely to be a reason also why mediation is insufficiently promoted by lawyers and other legal practitioners in international family matters.
The Difficulty of Cross-border Enforceability of Mediated Family Agreement in the EU
The cross-border recognition and enforceability of mediated family agreements is indeed complicated and complex – even in the EU! None of the applicable EU and international legal instruments provide any detailed, practical guidance on this. The Mediation Directive (2008/52/EC) has undoubtedly helped to advance mediation across all EU Member States. The Directive’s aim is twofold: It aims to facilitate the recourse to mediation in the EU in civil and commercial disputes and, secondly, seeks to ensure the enforceability of agreements reached. Enforceability of agreements is of great importance for cross-border family mediations. The outcome of mediation must be binding and enforceable in all legal systems concerned with the cross-border family dispute. Particularly in cross-border parental responsibility disputes where the advantages of mediation are undisputed, it is crucial that the mediated agreement can obtain binding force in the two or more states concerned in order to avoid a conflicting legal situation concerning rights of custody and contact in these states. For the child whose parents reside in different states to exercise his/her rights to maintain personal relations and direct contact with both parents on a regular basis legal certainty with regard to his/her parents’ custody and contact rights is crucial.
Direct enforceability of mediated agreements in the EU is indeed not possible. Firstly, enforceability must be obtained in the state where the agreement is concluded, which usually involves the involvement of a public authority, court, notary or other. Here however, huge differences exist among the EU Member States concerning their national procedural laws. Some require homologation by a judge, others by inclusion of the agreement into a court decision or by concluding this before a notary. In a second step this agreement must be recognized in the other EU Member State concerned requiring detailed knowledge of the procedural law of the State concerned. When it comes to the enforceability of “package agreement”, i.e. agreements dealing with a range of issues such as matters of parental responsibility, maintenance and other issues, the situation is particularly complicated in relation to child abduction or relocation cases. This is because the jurisdictional situation in child abduction cases is very complex and complicated.
Because of the aforementioned great differences in the national laws amongst EU Member States, it was evident that clear guidance was required to assist legal practitioners and parents in the drafting of mediation agreements that can be made binding in another EU Member State. Research studies come to the same conclusion that differences in enforceability are a reason for the low uptake of mediation, stating that if “enforcement were uniform, mediation would become more attractive” (Rebooting the Mediation Directive, p.160).
The AMICABLE project’s aim was to provide exactly such guidance and plug the existing knowledge gap! Leading Legal Expert Juliane Hirsch (MiKK, external) developed an EU-specific tool for mediated “package” agreements having regard to EU civil procedure instruments, such as the Brussels IIa Regulation, the EU Maintenance Regulation and the EU Mediation Directive and building on the work undertaken by the Hague Conference on Private International Law (HCCH) in this field. In a next step this tool was adapted (by including national legal parts) to four specific EU Member States having regard to their specific national procedural laws. The four Partners of the AMICABLE Project thus developed four country-specific Best Practice Tools for Spain, Poland, Italy and Germany.
The Solution: AMICABLE “Best Practice Tool” – A Practical Legal Guidebook
The Tools where put in a user-friendly layout with the addition of an Executive Summary for a quick overview of the topic. The Best Practice Tools serve as Practical Legal Guidebooks. The EU General Best Practice Tool and all four country-specific Best Practice Tools (Spain, Poland, Italy and Germany) are available in English. In addition the country-specific Best Practice Tools are also available in the respective national language, i.e in Spanish, in Polish, in Italian and in German in order to be accessible for as many legal practitioners from these countries as possible.
The tools, it is hoped, will assist legal practitioners with the cross-border enforceability and recognition of mediated family agreements (in child abduction, relocation and contact cases) in the EU. This will help to provide more legal certainty for parents in cross-border family cases – as result, it is hoped, more parents will opt for mediation in cross-border parental responsibility matters.
The Best Practice Tools will be available in mid July 2021 on the AMICABLE Project website for downloading, but you may also contact the MiKK office beforehand if you wish to receive the Tools in pdf Format. www.amicable-eu.org.
The Best Practice Model – Mediators in Court
The second aim of the AMICABLE project is the promotion of a tried-and-tested model for incorporating mediation into the tight, 6-week timeframe of international child abduction cases. Such a model is already operative in three EU (and former EU) Member States: the Netherlands, England and Germany. In the AMICABLE project, Judge Sabine Brieger, who pioneered this model many years ago at the specialized court (for Hague abduction proceedings) in Berlin, introduced this model to the participating partner countries at the three AMICABLE National Seminars. Research was conducted by the Partner countries as to whether their national procedural laws allowed the implementation of such a model. The Project Partners prepared reports which also included the results from the lively discussions at the National Seminars concerning this, who on the whole greatly endorsed this model. These national reports for Spain, Poland, Italy and Germany will be available for downloading at the AMICABLE Website in mid July 2021. www.amicable-eu.org.
It is hoped that the results of the AMICABLE Project in the form of Best Practice Tools and the Best Practice Model will provide practical assistance for practitioners from all over the EU – as well as provide more certainty for parents and thus help to promote mediation in cross-border family disputes in the EU. MiKK is planning a second project with four new EU Member States. Please get in touch if you have any questions or comments – we look forward to hearing from you!
For further information please contact Ischtar Khalaf-Newsome, ischtar.newsome@mikk-ev.de
Head of Advisory Services & Co-CEO|Family Lawyer & Mediator
MiKK e.V. International Mediation Centre for Family Conflict and Child Abduction
Fasanenstr. 12, 10623 Berlin, Germany