CODEMAL Project Training materials, Lithuania, Day 2

Ischtar Khalaf-Newsome
Head of Advisory Services & Co-CEO, Family Lawyer & Mediator
MiKK – International Mediation Centre for Family Conflict and Child
Abduction
„MiKK“ - tarptautinio šeimos konfliktų ir vaiko grobimo mediacijos centro
vadovė, šeimos teisininkė, mediatorė
Tarptautinį elementą turinčių šeimos ginčų mediacija: teisiniai ir mediacijos aspektai
Advanced legal and mediation issues in cross-border family cases
Projekto Nr. 854024-CODEMAL-JUST-AG-2018/JUST-JTRA-EJTR-AG-2018
http://codemal.turiba.lv
JUSTICE programos projektas
„Bendradarbiavimo tarp mediatorių ir advokatų skatinimas”
2021 05 06

o Name
o Professional background
o What special connection to the topic of the seminar
do I have?
- bi-national?
- bi-lingual?
- have lived abroad?
- Experience with cross-border cases?
- Mediated cross-border cases?
Introductions

Executive Team
The roadmap developed for the
executive team aims to secure buy-in
for the product vision
Today‘s Agenda

Executive Team
Types of Alternative Dispute Resolution (ADR)
„Arent‘t you glad we had this meeting
to resolve our conflict?“

Executive Team
Which Types of ADR do you know?

Executive Team
Source: www.lichtblaulaw.com/

Executive Team

Executive Team
Conflict Resolution & Control
Source: https://biz.libretexts.org/

Executive Team
Mediation: a Definition
Definition
“[Mediation is] a structured process…whereby two or more parties
to a dispute attempt by themselves, on a voluntary basis, to reach an
agreement on the settlement of their dispute with the assistance of
a mediator.”
European Directive on Mediation, 2008/52/EC of 2nd May 2008, Art.3(a)

Executive Team
Mediator: a Definition
Definition
A mediator is defined as “any third person who is asked to
conduct a mediation in an effective, impartial and
competent way”.
European Directive on Mediation, 2008/52/EC of 2nd May 2008, Art.3(b)

Executive Team
What are the Principles of Mediation?

Executive Team
What are the Principles of Mediation?
Voluntariness
The parties enter into mediation on a voluntary basis. Neither party has been coerced into
participating in mediation. Any party is free to end the mediation process at any time.
Confidentiality
The contents of the mediation is confidential and will not be shared with third parties,
although parties are of course free to discuss the contents with their lawyers or therapists.
The contents of the discussions during mediation cannot be used in court proceedings.
Impartiality
Mediators must act impartial at any time. They do not take sides.
Self-Empowered
The parties are in the “driving seat” when it comes to finding solutions.
The mediators do not give advice or propose solutions to parents.

Executive Team
for the product vision Mediation is „a structured process“
(EU Mediation Directive)

Executive Team
Mediation is „a structured process“ (EU Mediation Directive)
1. Agreement to
Mediate
2. Identifying the
Issues
3. Defining the issues and
interests
4. Examining and
clarifying options
5. Negotiating towards
agreement & Memorandum of
Understanding

Executive Team
Mediation is „a structured process“
(EU Mediation Directive)
Mediation is a structured process divided into 5 distinct Stages
Stage 1: Introductions and Setting the stage. The parties are taken through the Agreement to Mediate which
they received prior to the first session. The mediators explain the mediation process and set out any ground
rules. The Agreement is signed by the parties and the mediators.
Stage 2: Identifying the issues. The parties are each given the opportunity to tell their story, i.e. to explain their
positions. The mediators’ role here is to listen actively, trying not to interrupt the parties, although the mediators
should acknowledge both parties’ feelings and concerns and reframe if necessary. The parties agree on an
agenda and the mediators list the main issues to be settled in mediation on a flipchart.
Stage 3: Defining the Issues and Interests. Now that the parties have each set out their perspective the
mediators help the parties to explore their needs and interests as well as the needs and interests of their
child/ren. The parties are encouraged to speak directly to each other.
Stage 4: Examining and Clarifying Options. Different solutions and options are explored by the parties. The
mediators help the parties evaluate and discuss different options which involve compromises and concessions on
both sides leading towards reaching a final settlement.
Stage 5: Drafting the Agreement (Memorandum of Understanding). The mediators help formulate the
agreement which is checked by the parties’ respective lawyers before the parties sign it.

Executive Team
Please Discuss:
▪ What are the particular characteristics of cross-
border family cases?
▪ What particular skills does a cross-border mediator
need?
Please collect your answers on a flip chart/screen and
select one speaker who will share the results in the
plenary session
Small Group Excercise (15min)

What are the particular characteristics of
cross-border family cases?
Cross-border
FamilyConflicts
Wish to return to
the home country
High Escalation
Bi-cultural/
Bi-national
Changed perception
of parents‘
cultural differences
Big geographical
distances
Different
Jurisdictions &
legal systems
Fear of losing
the child
Bi-lingual

Executive Team
Coffee Break!!

Executive Team
for the product visionCultural differences in communication –
language, communication styles & conflict behaviour

a Definition …?
No universal definition of “culture” exists
Already in the 1950s more than 160 definitions of culture were
identified by anthropologists Alfred Kroeber & Clyde Kluckhohn
What is Culture?

“the collective programming of the mind which distinguishes the
members of one human group from another”
(Hofstede, G., 1984, p. 21).
“Human group”: a nation, religion, ethnic group, gender, specific age group or
generation, a social class, an occupation, a type of business, an organization, a
family
“programming of the mind”: refers to ‫״‬patterns of thinking, feeling and
potential acting that were learned throughout [...] lifetime”
(Hofstede, G., Hofstede, G. J., Minkov, M., 2010, p. 4).
What is Culture?

“the collective programming of the mind which distinguishes
the members of one human group from another”
(Hofstede, G., 1984, p. 21).
➢ culture is always a collective phenomenon
➢ which is shared by a group and
➢ consists of unwritten social rules which were learned.
Culture is a system of shared values, norms, symbols and heroes, that
all members of a social group internalize within the framework of their
socialisation
(Hofstede, G. et al., 2010, p. 7)
What is Culture?

Culture is a system of shared values, norms, symbols and heroes, that
all members of a social group internalize within the framework of their
socialisation
(Hofstede, G. et al., 2010, p. 7)
Culture contains visible and non-visible elements :
➢ Visible: Artefacts and behaviour are elements which can be
observed by an external person, such as clothing, rituals, music, food
➢ Invisible: values, norms, taboos, attitudes, beliefs or history.
What is Culture?

Executive Team
Heaven is …
where the cooks are French,
the police are British,
the mechanics are German,
the lovers are Italian
and everything is organized by the Swiss.
Hell is…
where the cooks are British,
the police are German,
the mechanics are French,
the lovers are Swiss,
and everything is organized by the Italians.
Cultural Stereotypes: What lies behind it?
Disclaimer: this exercise is for educational purposes only, no discrimination or offence is intended

Attempts to Categorize Culture?
Stereotyping is dangerous…
Edward T Hall

Characteristics of cross-border family cases
Cross-border
FamilyConflicts
Wish to return to
the home country
High Escalation
Bi-cultural/
Bi-national
Changed perception
of parents‘
cultural differences
Big geographical
distances
Different
Jurisdictions &
legal systems
Fear of losing
the child
Bi-lingual

Executive Team
Cross-border Mediators:
intrinsic understanding of the parties‘ languages & cultures
• Differences in Communication
• Differences in Conflict Behaviour

Intercultural Skills & Mediation

Executive Team
Lunch Break!!

Executive Team
A Word on Co-mediation….
Why Co-mediate in a cross-border family case?

Executive Team
A Word on Co-mediation….
Why Co-mediate?
Because of the needs and interests of the Co-mediators
✓ Synergy effects
✓ the possibility to use certain tools,interventions,
communication styles,knowledge, skills and strategies
Because of the particular circumstances and the specific
conflict constellation of the case, i.e. cases which are:
✓ cross-border
✓ highly escalated
✓ complex (child abduction/relocation cases) involving
a range of issues: children + finances + divorce
✓ bi-lingual, bi-cultural families
✓ gender-specific issues

Executive Team
Why co-mediate in a cross-border case….?
The Co-mediators combine different
skills, genders, personalities &
knowledge
4 B Model

Executive Team
Co-mediation: “Two heads are better than one“

Executive Team
Co-Pilots
Both mediators operate the controls.
They can take over from each other at any stage. (Watch out for duplication!)
Pilot and Navigator
The PILOT operates the controls.
The NAVIGATOR studies the map and tracks the course.
o may notice particular landmarks /new route opening up.
o may intervene less often than the pilot & focusses on dynamics rather than
content
o has more time to observe body language and think about underlying issues.
Pilot & Navigator may alternate roles but need to clearly divide tasks, i.e. one leading the
discussion, the other recording key points on flipchart.
Source: Lisa Parkinson, Family Mediation, 2012
Models of Co-mediation

Executive Team
➢ Dividing up roles and tasks (first session)
Who does the introduction? Who explains the ground rules?
➢ Open consulting
i.e. “should we start by….” more of a round-table discussion, not a linear question-answer dynamic
➢ Give each other openings (eye contact Co-mediator)
i.e. “Is there anything you wish to add?, Agree “secret signs” (indicates wish to speak)
➢ Non-verbal signs and body-language of parents
The Co-mediator may pick up on these if missed by the other mediator.
➢ Strategic Debates/Modeling
Constructive disagreement between mediators can serve to model ways to manage conflict in
a positive, friendly way (no undermining though!) (Folger, transformative approach).
➢ Humour
Can be used to comment on the Co-mediators different perspectives
➢ Good cop/bad cop
Mediators can generate options drawing on different perspectives and angles.
➢ Brainstorming in front of the parents – “Reflecting Team”
Tools & Strategies in Co-mediation

Executive Team
o Set up: parents in different locations – mediators in one location?
o Or all in different locations?
o Which platform to use? Zoom, Skype? Check with the parents.
o Use external web-cam and headset for better sound/image quality
o Schedule Brief test call with each party beforehand
o Agreement to Mediate (send in advance & get it signed). Extra Clause: no recording!
o No one else should be present in the room with the parents.
Also:
o Remember that there may be different time zones involved!
o Length of mediation session (keep it shorter than face-to-face)
o What about eye contact & body language?
o Use whiteboard/share screen as Flipchart to visualize!
o Prepare blank Memorandum of Understanding with Headings/Names etc.
beforehand
A Few Words on Online Mediation…

Executive Team
Drafting Memorandum of Understanding in
Cross-border Family Cases
Small Group Work (15 minutes):
▪ What topics need to be covered in a
Memorandum of Understanding (MOU) in a
cross-border parental responsibility/child
abduction case?
Please collect your answers on a flip
chart/screen and select one speaker who will
share the results in the plenary session

Executive Team
• Child’s (future) place of residence (return/no return)
• Custody and contact arrangements
• Living arrangements (with which parent?)
• Holidays, Birthdays and Special Festivities
• Financial support
• Travel and passport matters (who holds passport? Who pays for flights?)
• Health Insurance
• School
• Bi-lingual and bi-cultural upbringing
• Religious upbringing
• Withdrawal of criminal charges (as far as possible)
• Hague Proceedings (need to be withdrawn if parents agree on no return)
• Who initiates proceedings in country of habitual residence in case of return?
• Divorce Proceedings
• Mediation Clause
Topics for a Memorandum of Understanding in
Cross-border Family /Child Abduction Cases

Executive Team
The Mediation Process: Stage 3
Positions
Interests

Executive Team
Case Study: Airine & Francois
Airine (29 years old, Lithuanian National)
and
Francois (28 years old, French National)
meet in Brussels in 2015, where both work as interpreters for the European Commission (EC).
They both share a love for Jazz music and frequently visit the famous Sounds Jazz club in Brussels together
with other colleagues.
Airine and Francois fall in love with each other and become a couple.
They speak English with each other (being Jazz music lovers!).
Airine and Francois move into a flat together, get married and Airine falls pregnant.

Executive Team
In February 2017 the twins Ella and Lisa are born.
Although happy about being parents, the twins prove quite a challenge for their parents! Airine spends
her days looking after the very active twin babies. They sleep little and are fussy eaters. Airine is
exhausted and feels socially isolated. Francois works long hours and spends many evenings at the Jazz
Club. Airine longs to return to work. She finds a bi-lingual kindergarden for twins who are settling in ok,
but they are sick with colds and fever quite often.
In February/March 2020 the COVID-19 Pandemic hits and all comes to a standstill!
The kindergarden is shut. Francois works from home. Airine looks after the children full-time again.
Francois is finding working in Home Office a big challenge with two noisy 3 year-olds in a small flat! The
couple argue a lot and the marriage is starting to deteriorate.
To her great shock Airine also discovers (from a text message on Francois’ phone) that Francois is having
an affair with a musician at the Jazz Club - Airine is devastated!
She confronts Francois about this and the relationship deteriorates further.

Executive Team
In June 2020 Airine flies to Lithuania with Ella and Lisa (now aged 3 ½ )
to visit her family in Vilnius for 2 months over the summer holidays.

Executive Team
Francois stays behind in Brussels because he needs to work on a big interpreting assignment. In
August 2020 Airine telephones Francois to let him know that her return flights to Brussels have
been cancelled because of the COVID-19 pandemic. They agree that Airine will return so soon as
flights will become available again.
However, regardless of this, Airine enrolls the twins in a pre-school in Vilnius. By the beginning of
November 2020 Francois is becoming increasingly suspicious. He checks with the airline, only to
discover that flights from Vilnius to Brussels had indeed resumed over a month ago!
Francois is furious! He telephones Airine demanding to know when she and the children will return
to Brussels. Airine tells him they will stay in Vilnius and will not be coming back to Brussels. Francois
is devastated and in complete shock. He keeps hoping that Airine and the twins will come back to
Belgium. The couple argue for many months over the telephone about this.

Executive Team
Francois eventually contacts a lawyer and files an application with the Belgium
Central Authority for the return of Ella and Lisa under the 1980 Hague Convention. The application is
passed on to the Lithuanian Central Authority and Hague Convention return proceedings are initiated
in the Vilnius court.
Airine and Francois agree to try and find a solution by way of mediation, following their respective
lawyers’ advice. They contact MiKK who organize a multi-lingual, bi-cultural and bi-professional Co-
mediator team - a female mediator from Belgium (with a psycho-social professional background) and
a male mediator from Lithuania (with a legal professional background) - to conduct the English
language mediation.
The date for the mediation (online) is fixed for 6th and 7th May 2021, just a few days before the
court hearing on 18th 2021.

Executive Team
Stage Instructions for Role-play
• Read the role-play again carefully and try to get into character.
• The Parents will get individual role instructions each (15 min prep) and will
join the mediators after this.
• Try to stick to the script as much as possible although
you may improvise a little of course! (But don’t overact…)
• The Co-mediators will have 15min time to prepare together (who starts,
what tools, Pilot/co-Pilot, secret signs etc…?)
14.45-15.45 – 1 hour for the mediation role play
15.45-16.00 - 15 min Feed-back in your Role-play group
16.00-16.15 - 15 min Feedback all groups in Plenary Session
The Observers take notes and keep an eye on the time

Executive Team
• After the role play each player has the chance to describe briefly how they felt in
their role
• The observers give feed-back first
• Focus on positive feed-back – what went well?
• Constructive feed-back – what did not go so well and why?
15 min Feed-back in role-play group
Feed-back Rules

Executive Team
Separate Role Instruction: Airine
Separate Role-play Instructions: AIRINE

Executive Team
Separate Role-play Instructions: AIRINE
• You and the twins are simply having a wonderful time here in Vilnius!(despite Covid)
• The summer in Vilnius made you realize how much you had missed your parents, family
and friends. You had been so isolated and lonely in Brussels. It is wonderful being home in
Lithuania.
• Your parents and siblings give you much needed support with the twins. Even when they
were sick (a lot since kindergarden!) Francois did not help out. In fact, Francois never
helped with the children or the household chores!
• The twins love it in Vilnius as they have many cousins and friends with here with whom
they play all day long.
• Also, you cannot bear the arguments with Francois anymore. You will not return to
Brussels. Life is too difficult there with two children and no family network to support you.
How could you ever return to work? You would not be able to cope.

Executive Team
Needs & Interests of Airine
(STAGE Instruction: Do not reveal at the beginning)
• You find it hard to forgive Francois for the affair. All those months he lied to you! You world completely fell
apart. In fact, you think you were suffering from burn-out and mild depression in Brussels.
• You are tired of the fast and busy life in Brussels, it is not a place to raise small children
• Career-wise things are looking up here too. You met an old school friend and former boy-friend of yours. He
now works at the Lithuanian Ministry of Foreign Affairs. He has offered you a top job as an interpreter there
(starting in June 2021). Finally you will be financially independent again! You really hated having to ask
Francois for money for absolutely everything.
• It seems that this old school friend is romantically interested in you (he is not married) and you think you may
have fallen a little bit in love with him… but it is too early to say anything to anyone.
• You are pretty sure that you want a divorce
• Your lawyer told you that your chances for winning the 1980 Hague proceedings are not that great, but you are
prepared to do anything to not have to go back to Brussels with the twins.

Executive Team
Separate Role Instruction: Francois
Separate Role-play Instructions: Francois

Executive Team
You are still shocked and very angry at what Airine did! You cannot believe she lied to you! It is clear that she had
planned this all along – the Covid-19 travel ban was just an excuse. She broke you trust!
• What mother would do such a thing? She is so selfish and is not thinking about the well-being of the children.
The children need their father!
• You miss your daughters so much that you can hardly bear it. The flat is so empty now and it is hard to
concentrate at work with all this going on.
• You demand to see the girls as soon as possible, when you arrive in Vilnius for the Proceedings.
• You have spoken to your lawyer who is fairly confident that the Judge will make a return order under the
Hague Convention
• Despite all that has happened, you are willing to forgive Airine for trying to destroy the family.
• She can easily return to work. The children are in nursery now, so you do not understand why Airine is
complaining so much about being exhausted and having no support. You could also hire a part-time nanny if
this helps?

Executive Team
Needs & Interests of Francois
(STAGE Instruction: Do not reveal at the beginning)
• You have worked day and night to make sure that the family has a comfortable life and Airine is
lucky enough to be able to spend her time with the girls. Brussels is a very expensive city!
• You feel that Airine has just taken all this for granted. She is really difficult to please and never
happy and content!
• The affair did not mean anything to you. You just needed someone to boost your confidence
again. You felt Airine was constantly criticizing you and she stopped being the “fun Airine” from
you days at the Jazz Club before you had children.
• Airine’s family talked her into staying here in Lithuania, you are sure of this! Her parents always
wanted Airine to come back home – you feel that everyone in her family is against you !

MiKK EC Co-financed Project
AMICABLE
Development of judicial roadmap, “Best Practice Tool” for judges, lawyers and mediators to assist with
the Cross-border enforceability of mediated agreements & introduction of a mediation in court model in
Hague child abduction proceedings.
Universität Wroclaw,
Universität Alicante,
Universität Milano-Biccocca
MiKK
Development of 4 country-specific Best Practice Tool
Steering Committee: HCCH, GEMME, EU Parliament Office Children’s Rights, Central Authorities and
Hague Liaison Judges from Poland, Spain, Italy and Germany
Final Conference (ONLINE) 11-12 June 2021:
Key Speakers & Testing of the Tool in Workshops & Project Results
www. amicable-eu.org

For your Diary :
MiKK Conferences & Trainings
➢ AMICABLE Final Conference 11-12th June 2021 (Online)
Programme & Registration: www.amicable-eu.org
➢ Fortbildung zur grenzüberschreitenden Familienmediation
18.-20. Juni, Modul 1, Berlin
➢ Cross-border Family Mediation Training (CBFM) in English,
3.-9. Oktober 2021, Berlin
➢ Fortbildung zur grenzüberschreitenden Familienmediation
September, Modul 2, Berlin
➢ Guardian ad Litem Seminar (Hague Cases)
6.-7. November, in Berlin 2021 funded by the German Ministry of Justice
(BMJV) (free of charge)

Enabling Parents to Remain Partners!
MiKK e.V.
Fasanenstraße 12
10623 Berlin
Tel: 030 74787879
info@mikk-ev.de
www.mikk-ev.de
Questions?

Thank you – Ačiū!
dojeh
Gracias
Merci
Grazie
Arigato ありがとう
Vielen Dank
ευχαριστώ
‫شكرا‬
köszönöm
Благодаря
dank je
tack
mulțumesc
Kiitos
teşekkür
aciu
paldies
obrigada
takk
дякую
spas
Благодаря ви
‫مننه‬
dziękuję

CODEMAL Project Training materials, Lithuania, Day 2

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