This book explains how a discrete discipline of ‘Convention mediation’ can and ought to be developed. It acknowledges the gap between the general endorsement of mediation deployed in the context of proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (1980) and relatively limited practice. Vigers focuses on three principal questions (Chapters 2, 3 and 4 respectively), derived from questionnaire responses sent to 60 Central Authorities and other experts, including mediators and judges: what is meant by Convention mediation; how can a mediation process fit within the constraints of the Convention; and why offer mediation in Convention cases given the existing legal framework? She points out the considerable benefits to be had from mediation in this context, principally the replacement of the ‘two-step’ process of a Convention return application with a ‘one-step’ mediation process. Chapter 5 deals with the changing role of the ‘voice of the child’ in court proceedings and the implications for hearing the child in mediation. Finally, a short conclusion (Chapter 6) advocates a movement ‘from enthusiasm to action’ in this field.
Vigers is well placed to speak authoritatively on this subject. This book is an edited version of her LLM by research, awarded with distinction, and supervised by Professor Paul Beaumont (University of Aberdeen). She has served for a number of years as a lawyer in the Permanent Bureau of the Hague Conference on Private International Law, and her work has contributed to the appearance of the Hague Conference's Guide to Good Practice on Mediation (2012).
Vigers is careful to distinguish ‘mediation’ from the Convention concepts of ‘voluntary return’ and ‘amicable resolution’. Although mediation relies on these latter concepts for its legal basis, it is only one process through which the Convention aims of voluntary return/amicable resolution can be achieved. Some States, for example, seek to encourage dispute resolution either before initiating court process or as a first step and such efforts can be effective too. There is an extremely useful discussion of the definitional difficulties, not least the way in which the ‘mediation’ label can be deployed to describe a broad range of processes set in different legal contexts. She argues that while it is difficult to propose a formal definition without multilateral discussion a working description drawn from generally agreed principles provides a useful starting point. ‘Mediation is a voluntary and confidential process through which parties can reach their own agreements, which are not legally binding. Mediation is undertaken with the assistance of a trained and qualified mediator who is impartial, independent and neutral.’ (p. 19). Vigers notes the need for Contracting States to ensure that their domestic frameworks are sufficient to support mediation and not cause undue delay. In that regard, she notes, that such States ‘are at different stages in terms of the development or institutionalisation of domestic family mediation’ (p. 22). The author usefully identifies throughout the book, the level of agreement at the multilateral level on the concepts and practical detail of Convention mediation, and where appropriate signposts the opportunities for capturing international consensus. For example, she identifies the need for an initial ‘intake’ session followed by ‘joint’ mediation sessions in these processes. Vigers advocates that mediation should be positioned as one aspect within the broader procedure of the Convention, an alternative to a court hearing taking place against the backdrop of the ‘two-step’ process envisaged by the Convention – a return to the country of the child's habitual residence, followed by a merits hearing in that country.
She identifies three broad models of mediation: i) a process within the State of refuge, designed by the State and using mediators trained in that State; ii) a bi-national co-mediation process where the scheme is constructed and operated across both States and usually one mediator trained or connected to each State; and iii) a ‘mediation-based’ approach whereby all relevant professionals view the application against the backdrop of mediation. Vigers strongly prefers the first model (similar to the reunite scheme in the UK) and argues that the ethos of the bi-national approach is ‘flawed’ and ‘can be unduly onerous’ though it may be ‘a useful first-step as States experiment with developing Convention mediation’ (pp. 36, 38), while the third model misses the point that mediation should be viewed as a discrete element of the general procedure for handling convention applications and that some cases will not be suitable for mediation and will require court resolution.
The author discusses a number of specific challenges to the broader scope of mediation compared to the narrower primacy of the return order mechanism. While allowing mediation to encompass merits could be seen to be contrary to the main pulse of the Convention (to order a return to the State of the child's habitual residence), she emphasises that it is the parties themselves who formulate solutions in mediation and not the Central Authorities. But although in this sense mediation is broader that the Convention court hearing, it should be narrower than a full merits review. Her solution is: ‘The primary focus must be the ultimate place of residence of the child and broader issues which go beyond the scope of the Convention court hearing are admissible in discussion only where they impact upon the parties’ ability to make a decision on this primary issues.' (p. 41). Although this would clearly fall short of investigating divorce or property division options it is not clear where the cut-off mark should be. Other vexing issues are addressed in some detail: ensuring that mediation is appropriately slotted into the six-week Convention timeframe; confidentiality; costs; and distance telecommunications. The need for expedition represents, in Vigers' view, a key difference between general family mediation and Convention mediation. She concludes that the enforceability of mediated agreements should be delivered by court order, a logical conclusion if one views mediation as firmly located within the Convention machinery.
In her examination of the additional added value to be had from Convention mediation, she notes that ‘the demographic of child abduction has … undergone a well-documented paradigm shift’ (p. 63) from mainly taking fathers, to taking mothers. This has meant that the benefits of some of the practical outcomes of the Convention have been lost: a return to the country of the child's habitual residence will not generally be a return to the primary carer – more often it will be a return to the left-behind (and secondary carer) father. Furthermore, subsequent litigation on the merits is likely to result in residence awarded to the taking (primary carer) mother who will then relocate with the child, thus ‘subjecting the child to the disruption of three locations’ (p. 63). Return orders may well lead to the separation from the primary carer. On the issue of whether mediation might add to the problem of delay, she argues that the evidence so far shows that a discrete specialist mediation scheme within the Convention framework can operate expeditiously and need not result in any ‘undue delay’.
It is interesting to note that her conclusions on the benefits of Convention mediation are based ‘primarily by extrapolation from research evidence in the domestic context’ (p. 71), given her general appeal to view Convention mediation as a specialist regime, distinctive precisely because of the differences from domestic family mediation. She argues that mediation will enable improvement ‘without the need for legislative amendment, at least at the international level’ (pp. 73–4), and the development of mediation could in any event proceed organically, State-by-State, without the need to create the kind of consensus necessary for a new Protocol. Furthermore, she argues that the structures developed in Convention mediation may be adaptable for Convention applications concerning contact, and abductions falling outside the Convention regime, and indeed may also be a catalyst for cross-border family mediation in other [non-Convention] contexts.
Chapter 5 (‘The Voice of the Child’) provides a skilful examination of the way in which children's views can be heard both in Convention mediation and court hearings. She observes rightly that the influence of Brussels II Bis Regulation in intra-EU cases since March 2005 will inevitably grow and more children will be heard more frequently than traditionally has been the case in Convention proceedings. But the conundrum is that the child's views are only strictly relevant to the ‘child objects’ defence to a return order in the Convention; and even here the general narrow ambit of interpretation afforded to the defences and the general discretion of the court usually ensures a return order is made. The underlying tension is that the Convention in effect presumes that it is in the collective interests of all children to be returned to their countries of habitual residence, so it is unlikely that the views of an individual child will easily outweigh what is a primary purpose of the Convention. Equally difficult, is the fact that Convention mediation axiomatically places decision-making power to arrive at an agreement in the hands of parents who cannot be guaranteed to have their children's best interests in focus, especially in circumstances where they are in a dispute with each other. Nevertheless, Vigers argues that while party autonomy and a diminution of State interference are benefits of mediation ‘the reality in Convention mediation is that the authorities of the State are to an extent already engaged as a result of the application having been made’ (p. 87). She therefore advocates prudently that children should be heard at the outset of proceedings, but there should be flexibility as to how this is delivered given the different traditions within contracting States. Significantly, she argues that a particular advantage of mediation over court proceedings is that the positive effects of hearing the child increase. Concerns are diminished as in mediation ‘the views of the child do not need to be weighed against the presumption of return’ (p. 90) and dialogue can occur outside the narrow confines of the ‘child objects’ defence.
The enduring value of this short book (pp. 121) is that it charts with great clarity and authority the advantages of mediation in terms of both outcome and process. As regards the former, parents have the opportunity to resolve matters in one-step rather than two, as envisaged in the Convention. Mediation in the now typical case of the left-behind father who does not want or is unlikely to be granted primary care of the child offers parents the chance to negotiate contact arrangements in one-step and consequently avoid disruption to the child(ren) and further legal proceedings along with associated financial and emotional costs. As regards process, Vigers argues that mediation offers ‘a more child-friendly approach’ Above all, her message is that ‘Convention mediation should be developed as a distinct discipline’ distinguishable from general family mediation. She places her faith in the ability of the Convention (‘a successful instrument’) to continue to provide inspiration for creative solutions to cross-border co-operation ‘from the establishment of the network of Central Authorities in the instrument itself to the many “post-Convention services” which have evolved in the years since its entry into force’ (p. 95).
The brief, concluding Chapter 6 urges a move from enthusiasm to action in developing Convention mediation. I shall certainly be recommending this book with enthusiasm to all my students. Since publication, the soft law instrument was published in draft in May 2011 and finalised in 2012: see Guide to Good Practice: Mediation, Permanent Bureau of the Hague Conference on Private International Law, June 2012, available at: <http://www.hcch.net/upload/guide28mediation_en.pdf>. My own research report, in collaboration with reunite, has also appeared – Buck T (2012) An Evaluation of the Long-term Effectiveness of Mediation in Cases of International Parental Child Abduction (104 pp), Leicester: Reunite, available at: <http://hdl.handle.net/2086/6329>. Finally, Viger's book will be required reading for the team that secures the research contract recently announced by the European Parliament for a study on ‘Cross-border parental child abduction’: available at <http://www.europarl.europa.eu/tenders/invitations.htm>.
