Mediating Cross-Border Family Cases Online
Moderated by Melissa Kucinski
In order to resolve a family dispute, a mediator must work hard to re-establish lost trust, and in a cross-border family dispute, the mediator must do so with additional obstacles, including understanding different cultural cues and body language. Because of the communication difficulties, mediators prefer handling family disputes through face-to-face interactions. However, in many cross-border family disputes, including those where one parent may have abducted his or her child overseas, it may be impossible to conduct mediation in person. Due to immigration impediments, the cost of travel, and pending legal actions, including criminal warrants, a parent may be reluctant or unable to travel to conduct mediation in person. Is online dispute resolution a reasonable alternative to parents who want to mediate, but cannot do so in the same location?
Join Melissa Kucinski for a discussion on using online dispute resolution in cross-border family cases.
Fact Pattern to Begin Discussion:
Mother, Jane (American), and Father, John (Scottish), are parents to an eleven-year-old son, Jack. The family resides in Edinburgh, Scotland, where John is employed. During Jack’s summer vacation from school, Jane and Jack travel to Boston, Massachusetts to visit Jane’s family. After four (4) weeks in Boston, Jane calls John, who remained in Scotland due to work. She informs John that she will not be returning to Scotland, and has enrolled Jack in the local Boston school for the fall. John has hired a lawyer to file a court action in Boston using an international treaty to obtain the return of Jack to Scotland. Prior to filing this action, he agrees to mediation.
Initial Questions to Ponder:
Melissa Kucinski is a family lawyer and mediator, adjunct law faculty member, and former consultant for the Hague Conference on Private International Law. She currently chairs the American Bar Association International Family Mediation Task Force. In 2012, she received the ABA Family Law Section’s Award for Outstanding Contribution to the Section. She is a member of the U.S. Department of State’s Advisory Committee on Private International Law. She has published half a dozen law review articles and has spoken at over a dozen continuing legal education courses, including overseas in the Netherlands and the UK on international parental abduction mediation.
Thanks for hosting this discussion, Melissa -- I am optimistic about the use of ODR in family matters, but I think we have a lot of questions to answer before we get there.
As to the questions you ask:
1. If it had to happen f2f, I'd prefer a more neutral location -- maybe London. If that's cost prohibitive, I'd probably suggest Boston because Jack is there and John has already hired a lawyer in Boston to represent him.
2. I think domestic violence is a huge factor when considering f2f meetings. I think ODR can really help to ameliorate some of the difficulties presented by f2f interaction between spouses where there has been mental or physical violence, helping the victim of the violence feel safer. I'm not sure if John's drinking and verbal abuse is a factor, considering he won't be drunk in these sessions -- but if Jane says she'll feel safer if they don't meet in person, then I'd strongly suggest ODR as an alternative.
3. This will be a hot topic during Cyberweek this year -- but I do think any mediator in this case should use a dedicated ODR platform with built in security and data protection features. Skype and email don't cut it any more -- especially in the wake of all these NSA scandals. And European standards for privacy and security are far more aggressive than US standards.
4. Europe-US usually means AM hours in the US and mid-afternoon/PM hours in Europe. 5 hours isn't too hard to navigate. But if one party stays up late for one session, I suggest the other party should stay up late (or get up early) for the next session, just to balance the inconvenience.
I'm looking forward to everyone else's perspectives!
Great topic and thought proviking comments! I think ODR has a lot to offer in this complex setting. Asynchronous communication could actually prove helpful where there's potential asymmetry and even more extreme issues. Built-in pauses could stop a spiral of compromise that sometimes occurs in these situations (a really strong article by Scott Hughes on the difficulties with ADR in divorce cases in which there's a history of domestic violence).
Another issue to consider, is to what degree was the couple's communication pattern "digital." While in the past, we used digital communication with distant strangers, this is how we communicate with family and friends with whom we have intimate close ties. ODR may actually feel more comfortable for some.
Looking forward to more discussion,
Thank you for your wonderful comments!
How could ODR factor into the initial screening process? Many cross-border family cases, particularly with a child abduction, involve significant allegations of harm or violence (whether substantiated or not). There may be multiple court cases ongoing in several jurisdictions with strict deadlines (and both parties might not be aware of all cases). There may be arrest warrants out for the parent who "abducted" the child. It is imperative that these cases are screened, but the screening will need to be conducted from a distance in nearly every case, even if the parties ultimately meet in person. Can ODR help with this?
This is a great topic as we become an increasingly global world and workforce, and as the number of people displaced by civil conflicts in their countries of origin seems to be growing as well. Your scenario is interesting to me because Jane also has family support in Boston, so we might be thinking about an expanded table of real participants, who may be visible in the negotiations (on screen or on the phone) or maybe just influencing the process silently as an advisor/director. Also, the criminalization of the dispute due to kidnapping charges and the apparent "get tough on crime" rhetoric being applied to sex trafficking (which also focuses on child abduction) may also create greater fear of capture or being labeled in cases where one spouse runs with the children. This would me very cagey participation by the parent who has the child and did so without the consent of the other.
With regard to global dislocated peoples (refugees), this kind of mediation at a distance would probably have to rely on low-tech mobile phone communication, or local dedicated calling center or cybercafes, which adds new wrinkles to the technology and hosting decisions.
Melissa will be able to fill us in more about training projects in this area I'm sure, but I was intrigued by the work being done in the EU around this. See http://www.mikk-ev.de/english/eu-training-project-tim/ for the place I learned about a more focused effort to do a good job on these challenging cases. I believe an edited volume is also now available on this topic, so knowledge is being gathered and shared.
A really effective approach for mediation in very emotional cases as well as in cases of child abduction can be a combination between local mediation and online-mediation at the same time by using an ODR system with the ability of live interaction. Written mediation can prevent escalations but a well trained team of specialized mediators can do the same job.
on the other hand you have to tolerate, that there will be borders for mediation, for live mediation as well as for ODR. The more criminal energy there will be the smaller are the chances for an effective mediation.
Your first question, although it was not included in "Initial Questions to Ponder" was a good one. Is online dispute resolution a reasonable alternative to parents who want to mediate, but cannot do so in the same location?
Because body language can be observed through video technology, I think it transcends the physical boundaries that one would find necessary in a face-to-face mediation. It might even be more helpful because it could allow a person who usually feels inhibited to express themselves fully the ability to feel safe enough to do so. In this regard, it might also help one articulate themselves better for the same reason.
As you mentioned, Melissa, "many cross-border family cases, particularly with a child abduction, involve significant allegations of harm or violence (whether substantiated or not)." Having a space where the people are not all together could allow for a more realistic conversation.
By that same token, it could also go against a person in this same respect as they may feel they don't need to restrain their anger or other emotions because they are not physically with the other party(ies).
In the case of arrest warrants, I would think that it might make it easy for ppl to use that information against the person with the arrest warrant- they could look up the URL and find the person's location. Or, a safe haven feeling could be created for that person and they could be convinced to give themselves up.
I liked Colin's suggestion of hosting the mediation in a neutral location. Boston might be a good idea but if John feels like this is catering to Jane too much, especially since this who mediation is being set up because of Jane's decision to keep Jack in Boston. In this regard, it could be in another US state nearby in Ireland. The point is, it shouldn't be too much work for everyone to get together and it shouldn't necessarily favor one party over the other.
2. What additional difficulties would be presented if you knew that John used to drink and when drunk, would be verbally aggressive towards Jane? Does this impact any decision to conduct the mediation in person? Online?
In the case of verbal abuse tied to being drunk, if it's held f2f, the mediation should be held in a location where safety provided by professional can be assured. They should be somewhere close by- in a nearby or adjoining room, and should be notified of the situation so they will be prepared if anything happens. ODR would probably be better suited for this kind of situation, but if the guy was only verbally abusive when he was drunk, as long as he doesn't show up drunk to the mediation, it might be okay.
3. What confidentiality issues would exist with parents mediating online in two countries?
It is possible to record online videos so the video could be leaked to the internet or at least shown to other individuals. It could also be used against the other person in a courtroom should the mediation not work and the situation goes to trial. If a confidentiality form is signed the person who violates that could be criminally charged, but it would be difficult to determine which country would take the case.
4. The parties are five hours apart in time zone – how would you approach scheduling mediation so that it is fair to both if you mediated with each in his or her own location?
It should probably be done on a weekend in the late morning, early evening for the individuals. Doing so would demonstrate neutrality in the process and create an environment that enables honesty and trustworthiness.
I've spent the last two days thinking hard about ODR and family, so this topic is really helpful to me right now.
Orna, I'd never heard the phrase "spiral of compromise" -- I like that. I'll check out the Hughes article. I have seen situations where one spouse is very "techie" and the other spouse is not, and that contributes to a power asymmetry... though as of late that's been less of an issue. In an ODR process, being a coder and professional technologist doesn't really give you much of an advantage over someone who is an active social networker, for example.
Melissa, I've been thinking a lot about screening questions, and how to use technology to triage incoming cases. Part of this is focused on the issue of how to determine whether a couple is "ready" for mediation. Doing that in technology alone is tricky. Also, if a human mediator asks parties to reflect on the future they want for their kids, that's one thing -- but to ask them to type that into a text box is another thing. Online processes are usually so functional, will parties get frustrated if they're asked to do "reflective" tasks in an ODR process, tasks that aren't specifically related to outcome?
Domestic violence is a really tough one. What if both parties are remote, and one party starts threatening the other party? What obligation does the neutral have to intervene, and how could the neutral intervene if the parties are on the other side of the country (or the world?) I recall Janet Rifkin saying she wouldn't do any more remote family mediations when she did a case with an Argentinian man who, in the course of the mediation, said he might kill himself. In the US, she knew what her ethical obligation was -- but internationally, she didn't know what to do.
Bill, I never thought about the risk of criminal charges... you're right, that's a tough wrinkle. Can a process be held entirely through anonymous channels? What obligation would an ODR provider have if, for instance, law enforcement contacted the provider and said, you have a criminal using your ODR process, we want to look at their login information to find out where they are so we can capture them. That happened at eBay all the time, and eBay pretty much always complied. Patric's point about criminal energy disrupting the effective mediation process is a good one. Maybe as soon as it's discovered there's a criminal component the mediation should end. But what if the crime is separate from the topic of the mediation? Hmm, there are tough ethical questions.
Katharine raised a point about recording video conference sessions. I think this is going to be more of an issue moving forward. I find the Europeans to be really rattled by the NSA revelations. We're going to have to be able to demonstrate the security of our systems if we're to maintain the confidence of our parties. Video is also going to be more common moving forward, as quality improves and cost comes down. As Katherine notes, "Because body language can be observed through video technology, I think it transcends the physical boundaries that one would find necessary in a face-to-face mediation." Once it's easy and ubiquitous, I could see video becoming the default for ODR.
The EU has been conducting a mediation training, and last I knew it was several weeks in length. The American Bar Association is hosting a first U.S. international family mediation training pilot next week in Washington, D.C. (and we have been consulting those in the EU, Australia, Japan, and elsewhere). While I don't believe that the initial EU training had ODR as part of its program, the ABA is devoting a small part of one of the five days to ODR. The question that arises is: to what extent should cross-border family mediators be trained in ODR, and what skills should be imparted to them as part of that training?
This is entirely separate from another question that has been vexing me - my original hypothetical had a very "plain vanilla" fact pattern. What if John and Jane did not both speak English? What if you had to include a translator in the mix when conducting mediation using ODR? Is ODR appropriate where two very different cultures are at play? When typing a message to a mediator, how much of the cultural cues will come across to the mediator so that he/she can frame his/her questions appropriately?
Well, you won't be surprised to hear this from me, but I think family mediators should all be trained in ODR. If online processes are in the best interest of parties, then family mediators should be aware of and able to leverage those tools.
I think cross-border, cross-cultural ODR can work well, but the family part of it gives me pause. Family matters are complex, so simple translation tools aren't effective. But don't most spouses share a common language they can communicate in? Maybe if one of the spouses isn't comfortable with a written language then text based interaction should be avoided.
The lack of nonverbals is a challenge, but it can be overcome. I think technology is growing to transcend most cultures at this point. A difficult issue for me would be bandwidth -- what if one spouse had fast bandwidth in the developed world, and the other had slow bandwidth in the developing world. Would that advantage one party over the other?
I believe cross-border family mediators should be trained in ODR as a mandatory aspect of their certification, without question. Use of technology will only become more prevalent and it is necessary that those who are leading the mediation be able to address trouble-shooting issues or legal issues related to ODR if and when the issues present themselves. The legal skills would include those we have already discussed, in regards to confidentiality, but perhaps also with respect to issues of tracking and the like. Additionally, they should learn how to address discordance issues like interruptions, threats against others or oneself, and so forth.
To answer the translation issue- there are applications that can translate languages and write them out- that is an option, another is having a translator but that translator would obviously have to be trained in a specific niche to address the same kinds of issues a mediator would if issues come up.
It is also going to be difficult when two different cultures are at play, but one would have to post that a mediator would be able to handle all sorts of situations like this, since they will ultimately be exposed to variety of different individuals, anyway. Perhaps, though, that is an aspect that can be included in ODR training and can be a preparation tool for the mediator to consider beforehand.
It seems that most every agrees that ODR is a good option for some parents in some cases (or many parents in many cases), although there are some potential pitfalls people will need to understand. So my next question is:
How do you sell "ODR" as an option to parents? How do you describe it to them? How do you help them organize and agree on a platform? What if one parent has less technology access (or less advanced technology access)?
I think it's not as hard as it once was to put ODR out there as an option. It kind of sells itself at this point. You can even do it casually in a first meeting -- saying, well, I have online options for us to utilize as well. People usually understand what that means. Maybe you can even offer to do the first meeting via video to see how comfortable both parties are (and how fast their bandwidth is).
I think it's better to say -- if we're going to do this, I prefer X platform. Don't get into a negotiation about which system should be used. Better for the neutral to put out one option they are comfortable with and then get a yes or no from the parties.