With an increase in remote mediation, many mediators are managing caseloads that have a multi-jurisdictional element (at times, unintentionally). In the past, a mediator and the parties could physically sit in the same jurisdiction, often where a court case was pending, and everyone knew or understood what laws, standards, and ethical considerations applied to the structure and process of the mediation. However, with each individual in a remote mediation process potentially located in a different jurisdiction, the lines have been blurred.
This paper will define what issues may arise in a multi-jurisdictional mediation process, and focus on the necessary training elements to handle these multi-jurisdictional implications.
A family mediator receives a referral from a judge in a California federal court. The case before the judge falls under the Hague Abduction Convention, an international treaty, where a father is requesting that the parties’ two minor children be returned to Germany. In addition to the federal court case, there is a California family court case in a separate courthouse and a German family court case, which includes issues related to their children and their assets. Both parents are U.S. citizens, as are the minor children. The father is physically located on a U.S. military base in Germany during the mediation. The mother is physically located in Nevada, at her parents’ house, during
the mediation, although her usual place of residence is California. The mediator is physically sitting in her office in New York in the United States for part of the mediation, and at the mediator’s home in Connecticut, for the other part of the mediation.
The above fact pattern is one of many examples of a multi-jurisdictional remote mediation. In this case, what mediation rules and standards should apply? Should it be those required of the mediator where the mediator is certified to practice mediation. The three lawsuits, one in a U.S. federal court, one in a California state family court, and one in a German family court, further complicates this issue. Each court may have different standards for their domestic mediators, and those differing standards could further differ from the mediator’s standards, which, in this case, may be the standards promulgated in New York or in Connecticut. This mediator received the case as a
referral from a court-mediation program, which may require mediators meet its separate requirements in terms of training, background, or licensure. The German court may have separately sent the family to its local mediation program. The issues that the family will want to address will span multiple jurisdictions. Finally, the parents who wish to use mediation to resolve their dispute are physically sitting in different jurisdictions, including one that has no connection to any of the court cases or the mediator (Nevada).
The mediator may need to ask a variety of questions to parse over the multi-jurisdictional nature of this case. Which laws apply to resolve this dispute? Do the mediator’s standards of practice and ethical obligations conflict with those in the other two jurisdictions where court cases are pending? If the parties reach an agreement, how will that be addressed in writing? What happens if someone in the mediation says something alarming that requires reporting to an authority? To what authority must it be reported? What are the reporting requirements for the mediator?/and to which jurisdiction? Is the mediation process confidential? Could a party bring a recording, transcript, or notes from the mediation to a court in his or her jurisdiction and nonetheless share them? Must the mediator make an attempt to consolidate the mediation processes if the family has been referred to a separate mediation process in the other court cases? Even where not within the mediator’s territorial jurisdiction? Should the mediator have an understanding of what laws apply to the underlying dispute itself? How does the mediator ascertain that? If they do not, what impact on the parties, the outcome, and the confidence in this process?
As the mediator can see, there are a variety of concerning conflicts in the standards, practice, traditions and laws in a multi-jurisdictional case. It is not the mediator’s job to change the mediation traditions that exist in different jurisdictions. It is the mediator’s job to understand the potential differences, spot the complex issues noted above, and employ best practices in addressing those issues. This will require adequate training and education for the (at times, inadvertent) cross-border mediator.
This SubCommittee envisions three key components to a training program for mediators that will intentionally or inadvertently find themselves in a multi-jurisdictional mediation. These components include:
a. Understanding the different approaches and practices to mediation and mediation traditions
b. Being able to spot the multi-jurisdictional issues
c. Understanding best practices to address the multi-jurisdictional issues
1. Envisioning a Multi-Jurisdictional Mediation
Mediation training should include a discussion that highlights certain different approaches to mediation in different jurisdictions, so that mediators are able to better understand how their mediation process may differ. This could include differences in the structure of the mediation process (such as co-mediation, use of caucus), different sources of referrals (such as court-referred mediation), and different rules (such as confidential mediation or reporting mediation).
Ideally, a training would include a discussion among mediators of different jurisdictions about the processes and rules employed in their jurisdictions, so the mediators being trained can appreciate those differences. This will ensure that participants are not only prepared, but better equipped to structure a mediation process where multi-jurisdictional issues are identified, the mediator is better able to set expectations among mediation participants, and they are better equipped to structure a successful mediation process. Having a more sophisticated understanding of these differences may allow mediators to explore a structure that is new or different from what is typical in the jurisdiction where the mediator practices.
2. Issue-Spotting: Being Able to Grasp the Multi-Jurisdictional Issues in a Mediation
Mediation training should include a discussion of the various cross-border issues that exist. This will enable mediators to spot these issues, understand how they may clash with other jurisdictions’ processes and rules, and attempt to set expectations and address those clashes.
The list of issues that might arise in a cross-border mediation process are varied. This Sub-Committee includes, at Appendix C, a list of potential issues that might need to be addressed in a mediation. At a minimum, the key issues that should be included in any training are:
a. Educating the Participants: how can the mediator best ensure that the participants enter the mediation process with the same understanding of its format, what rules apply, and the mediator’s role?
b. Privilege: what is permitted to be disclosed at the end of the mediation process, and who may see it?
c. Ending Mediation: at the end of a mediation process, particularly one that spans jurisdictions, there will be questions about how the participants can take the next steps, for example, whether their agreement can be brought to a court, whether a particular jurisdiction will enforce its terms and how, and how the parties can further comply with the elements to which they agreed. How can mediators best address these complex cross-border issues to end their mediation process successfully?
3. Best Practices to Address Multi-Jurisdictional Issues
Mediation training should include an analysis of some of the key parts of the mediation process that can help a mediator best address the issues that he or she spots as potentially problematic. These training components include:
a. Intake: What process should be employed at the outset so a mediator can assess what multi-jurisdictional issues exist, whether the mediator is competent to handle them, and what structure should be employed to best situate the mediation to be successful?
b. Agreements or Contracts to Mediate: Can the mediator require the parties to sign a contract in advance of the mediation session that outlines the rules for the mediation? What additional elements should be included in such a contract to address the conflicts in rules and procedures? How can the mediator ensure the contract itself is enforceable if one of the parties fails to comply with its tenets? (See Appendix A)
c. Communication with the Parties: How will the mediator successfully communicate with the parties in a situation where their geographic location may include additional obstacles, such as time zone differences, cultural differences, or the need for specialized legal advice in multiple venues? While e-mail or even text messages may present the most easy forum for communication, will having something in writing present additional jurisdictional obstacles for the parties or the mediator?
d. Ending Mediation Successfully: How can the mediator successfully conclude mediation so that the parties feel competent to take their agreement, receive proper legal advice, and render that agreement enforceable in the appropriate place? Will the mediator’s actions or words prejudice either party if the mediator is unfamiliar with the laws or procedures in any or all of the jurisdictions that this family may be situated (or litigating)? If this is judicially referred mediation, can it be concluded with no final resolution without judicial consent?
Complex multi-jurisdictional issues implicate legal, procedural, and strategic issues that are well beyond any basic training. It is impractical for a mediator to employ the legal guidance of someone in any and all implicated jurisdictions to ensure that the parties and the mediator are protected. The mediator needs to be aware not only of the potential pitfalls that may impact the parties, their legal rights, their potential outcome, but also of the mediator’s ethical obligations, adherence to practice standards, and adherence to rules outlined by the referral source, particularly if it is a court. There clearly needs to be further discussions and considerations on the complex nature of a multi-jurisdictional mediation practice. For now, mediators should tread carefully, practice good case management, exercise judgment and discretion in declining a case, and properly educate the parties before embarking in the mediation. There may need to be additional examination and work on developing best practices and protocols for these cross-border mediation processes, which may involve examining other ADR processes, such as arbitration, in the context of international instruments, like the Singapore Convention, and in regional regulations and directives, like the European Union Mediation Directive.
Appendices and Supporting Materials
A. Sample Language for Agreements/Contracts to Mediate
B. Additional Fact Patterns for Consideration in a Training
C. Issue-Spotting Document
D. Hague Conference’s Guide to Good Practice – Mediation
Appendix A: Sample Language for Agreements/Contracts to Mediate
Below includes sample clauses for a Contract or Agreement to Mediate for a case that has multi-jurisdictional elements.
1. While traditional mediation processes include the Mediator and the parties meeting (in-person or remotely), which may include the Mediator meeting with each person separately from the other, mediation may also include follow-up communication with one or both parties to help that person weigh settlement proposals, or other communication made with the goal of moving towards a mutually agreeable resolution. The Mediator will charge for any time she responds to individual communication. Both parties agree that they will act in good faith and not use communication outside of meetings to harass the other person or increase costs. Even if the communication is generated by one person, both parties remain responsible for the payment of the Mediator’s time and costs as outlined in paragraph [x].
2. The parties represent and guarantee that none of the funds used to pay the Mediator originated from or are tied to a person or entity on any government sanction or screening list, including, but not limited to the U.S. Department of the Treasury’s Specially Designated Nationals list, Foreign Sanctions Evaders list, or Sectoral Sanctions Identifications list.
3. The parties agree that all information and communication divulged to the Mediator during the sessions, or individually outside of the sessions, shall be treated as confidential and personal and will not be released by the Mediator to anyone unless the Mediator is ordered to do so by any court of competent jurisdiction, or by federal or state law of the jurisdiction where the Mediator is conducting the mediation (herein the location of the Mediator’s office, [x]). This Agreement to Mediate and any final written and signed settlement shall not be confidential. Allegations of child or elder abuse and credible threats of personal harm must be disclosed by the Mediator, if necessary, to prevent people from being harmed. The Mediator makes no representations as to the current law in
any jurisdiction regarding the confidentiality of mediation.
4. The parties agree that they shall not subpoena any of the Mediator’s files or the contents of the Mediator’s files and are prohibited from requiring the production of any documents, records, recordings or other tangible objects made by the Mediator. The parties, or their agents or representatives, shall be prohibited from requiring the Mediator to participate in any court or judicial proceeding in any jurisdiction. If the Mediator is mandated, for any reason, to participate in any court or judicial proceeding in any jurisdiction, or to produce tangible records from the mediation, the party that is mandating the Mediator’s participation or production of documents shall be responsible for the cost associated therewith, including any attorney’s fees paid by the Mediator, and the cost of the Mediator’s
time at the hourly rate stated herein.
5. There shall be no record or recordings of the actual mediation sessions, nor shall either party request any be kept. The parties recognize that if they are using a videoconference system to participate in distance mediation for part of all of the sessions, that the third-party video conferencing provider may record or otherwise maintain the content of the session in accordance with its own privacy and other policies. The parties consent to interaction with the Mediator by video conferencing. The parties recognize that security and privacy threats are
6. Third parties or non-parties may participate in any mediation session only by agreement of the parties and the Third Party and must sign a confidentiality agreement and be bound by the same rules of confidentiality that the parties and Mediator are bound.
7. The Mediator’s predominant mediation practice is situated in [x], and the Mediator abides by the [x] Standards of Conduct. The Mediator also adheres to the principles in the Hague Conference’s Guide to Good Practice – Mediation and the International Social Service Charter for International Family Mediation Processes.
8. The Mediator has no authority to determine which jurisdiction will enforce any final agreement, nor can s/he guarantee that any agreement reached by the parties will be enforceable in any jurisdiction.
9. The Mediation may be conducted in one or more sessions of varying lengths, as is appropriate or necessary. The Mediation will be conducted in the English language, except to the extent that either party, or the Mediator, requests the use of a foreign language interpreter to facilitate communication. Any document that the Mediator produces will be produced in English and the parties must bear the expense of having it translated to any other language, if necessary.
10. By agreeing to mediate, and agreeing to use [x] as mediator, the parties are not consenting to jurisdiction over any issue in their separation, divorce, property, support, or custody matters, or any other matter of any kind. Participation in mediation is not acceptance of jurisdiction or service of any court action or paperwork.
11. This Agreement to Mediate is a binding contract between those who sign it. It shall be construed under the laws of [x].
12.The Mediator shall not produce any document for any third party, including any court, in any jurisdiction as to the status or conclusion of the mediation process, unless all parties, including the Mediator, so agree.
Appendix B: Additional Fact Patterns for Consideration in a Training
Case A: Mother, Father, and Child live in Texas. They divorce in Texas, and have a Texas court order, which includes issues of custody and child support. Father moves to Kentucky. Mother moves to Virginia. They continue with an ad hoc parenting schedule that differs from their court order. Mother gets a job opportunity in Japan. Father is agreeable to the child relocating, but the parents want to resolve a new parenting plan and child support arrangement. They reach out to you. You are a Virginia certified mediator. You will sit in your office in D.C. to mediate. The Mother will be at her home or place of employment in Virginia. The Father will be at his home or place of employment in Kentucky. The only existing court order is from Texas. If the case is not resolved in 1-2 sessions, the Mother may physically sit in Japan for later sessions.
Case B: Mother, Father, and Child live in Tennessee. Father is active-duty military. He is assigned to a posting in Germany for 2 years. The family moves to Germany. After 1 year, the Mother is unable to live in Germany any longer. She returns to the United States and moves to her parents’ house in Connecticut with the Child. You are a Florida mediator, but when this mediation comes in your door, you are sitting at your second home in the mountains in North Carolina. The Mother is sitting in Connecticut. The Father is sitting in Germany for some of the mediation sessions, and in Tennessee for others. To further complicate the issue, the Father has initiated a custody lawsuit in
Germany and a Hague Abduction lawsuit in Connecticut. The Mother has initiated a custody and divorce lawsuit in Connecticut.
Case C: Mother, Father, and Child live in Mexico. They have lived in Mexico for 1 year. They had planned on living in Mexico for 3 years total at the time they moved to Mexico. The 3 years aligned with the contract with Father’s employer. After the first year, Mother wants to return to the United States. The family had previously lived in Illinois, but she wants to move to Washington, D.C. The family has some property in Illinois in storage, and some property in Mexico. They want to resolve property, support, and custody issues. When engaging in mediation, you are sitting in southern California. Father is sitting in Mexico with his Mexican lawyer. Mother is sitting in Mexico and has her Illinois lawyer call in. Mother has signed a lease for an apartment in D.C., and will call into the second mediation session from D.C
Appendix C: Issue-Spotting Document
1. Screening and Intake Issues
a. Where are the parties physically located?
b. Is everyone safe? Can everyone proceed as they are currently situated, or must the mediation be delayed?
c. Do they have access to technology, privacy, and an appropriate environment?
d. Are there court cases filed in any jurisdiction?
e. What are the key issues that need to be addressed, and does the physical location of others, such as third parties, the child, or property, etc. play a role in the mediation?
f. Is there an established jurisdiction and forum for their dispute? Is it agreed (if it can be agreed to)?
g. What law should apply to the dispute? What are the conflicts of laws rules that apply to determine the applicable law?
h. Is the mediator qualified to proceed? Is the mediator familiar with the cross-jurisdictional issues? Are there others that need to be included in the mediation to ensure it is conducted with integrity? Can the parties agreement speak to qualification of the mediator
i. What language(s) can the parties speak and understand comfortably? Is a well-trained interpreter available for the mediation, if it is necessary?
2. Legal Issues (i.e., conflicts of laws between jurisdictions based on the location of the mediator, the parties, and the court seized with the case)
a. Confidentiality/Privacy issues differ by jurisdiction
b. Mandatory Reporting (of abuse, neglect, violence, criminal activity, etc.)
c. Disclosure Rules (including ability to subpoena the mediator’s files)
d. Process Differences (i.e., the impact of the legal conflicts and how the mediator structures the process to ensure integrity)
e. Electronic Communication across borders
f. Vulnerability of the Parties (i.e., could participation in mediation expose either party to a lawsuit, be used to imply consent to certain unintended consequences like service of process)
g. Pending Legal Proceedings, and the status of each proceeding
h. Use of Legal Counsel (and selection of legal counsel to aid the mediator and parties from relevant jurisdictions)- Ability of Legal counsel to carry out legal work in another jurisdiction i. Privacy Laws (including use of platforms, government regulations, restrictions)
j. Legal Outcomes (i.e., is the outcome open or privileged, and what rules or laws dictate this, is there a conflict in the different implicated jurisdictional rules)
k. Legal Licensing and Credentialing of Mediators (is there a national or international prohibition of a mediator or professional licensed/credentialed in one jurisdiction working on a case in another jurisdiction)
l. Differences in Process and Rules between Court-Referred mediation and privately retained mediators
3. Ethical Considerations for Mediators
a. Mediator Credentialing and Licensing and whether there are prohibitions on the mediator working on a case in another jurisdiction
b. Dual Roles and whether mediators who are also licensed in another profession (law, psychology, social work, etc.) have prohibitions on mediating in another jurisdiction
c. Addressing the disparity in mediation fees, and providing processes to be transparent about their fees; what marketing rules apply to mediators in a multi-jurisdictional case?
d. Because of the multi-jurisdictional issues, should mediators limit or narrow the issues in the mediation, precluding certain issues on which they are not competent or prohibited from addressing?
e. Given the complex legal issues, should cross-border mediators handle cases without lawyers for the parties? And, if so, lawyers from what jurisdictions?
f. How can the mediator consolidate his or her ethical obligations and mandates with the cross-jurisdictional nature of a case? For example, if a party threatens self-harm or harm to others, but are sitting in a different
jurisdiction, where the mediator is not familiar with the law, mandates, or resources?
g. How does a mediator assess his or her competency to handle the case, specifically the issues in the case (particularly when there may be mixed issues, for example, in a family case, children and finances)? When must a mediator bring in a separate or second mediator, a co-mediator, or decline to take the case?
h. Is it ethical for a mediator to proceed if the legal forum to resolve the dispute has not yet been established?
i. Is it ethical for a mediator to proceed if the law or court has not already been chosen (or identified, if there is a conflict over which law or court has authority)?
4. Best Practices for Addressing Multi-Jurisdictional Issues
a. Agreements to Mediate
i. Can a mediator contract around the differences in laws, rules, and standards jurisdiction-to-jurisdiction?
ii. Can a mediator bind the parties to a choice of law or a choice of venue by their Agreement to Mediate?
iii. Is signing an Agreement to Mediate detrimental or harmful to the parties? If it might be, how does the mediator determine that?
iv. Can a mediator dictate and bind parties to a venue to collect fees if the parties do not pay the mediator?
b. Accepting Payment of Fees
i. Are there any rules on transferring funds across borders?
ii. Are there prohibitions on accepting fees from someone sitting in a different jurisdiction? (for example, OFAC)
iii. Can or must services be taxed based on the jurisdiction where the mediation is “occurring?” Based on where a paying party is sitting?
5. Final Resolution
a. If the parties are seeking a binding legal arrangement at the end of mediation, how do you address this in mediation?
b. see: Hague Conference’s work on voluntary agreement recognition in family matters
6. Quality Assurance
a. What is competency for mediators? (i.e., training, experience, mentorship, continuing education, etc.)
b. Should there be uniform training standards for mediators who handle multi-jurisdictional cases?
c. How do you arrive at a diverse mediator pool for what is inevitably a diverse pool of disputants?
d. How are mediators selected to handle these multi-jurisdictional disputes, by courts, by parties, by lawyers, etc.
e. Should there be consistency between accreditation schemes across the globe? Not sure we can get this cos of difference in culture and Nuances. Some basics maybe.
f. Are there networks (or should there be networks) for cross-border mediation? If so, what preconditions should exist for membership?
The law school professor asked for a show of hands. "How many lawyers are in the room?" There was something about the way he shook his head, just slightly, from...By Victoria Pynchon