International Family Law ADR: Challenges, Opportunities, and Best Practices

1. Alternative dispute resolution for international families: the challenges, distinctive opportunities, good practice and process and collaborative ways forwardProf David Hodson OBE MICArb David Hodson www.iflg.uk.com

2. Introduction to international family law ADR • Crucial need in 2018 for good and fast progress to be made in international family law ADR. • If national ADR sometimes struggles to make progress, international ADR has barely started David Hodson www.iflg.uk.com

3. Introduction to international family law ADR • Yet international families need it, want it & would demand it if they knew more about it. • International family lawyers are mostly committed to ADR, although significant reservations and obstacles. • Judges are supportive. • The technology is almost there. • The ability and expertise is definitely there. • The commitment and enthusiasm is there! • But it needs initiative, resolution & organisation for effective & fast progress to be made David Hodson www.iflg.uk.com

4. Introduction to international family law ADR International ADR is : • mediation, • arbitration, • early neutral evaluation, • collaborative law and • perhaps cross-border lawyer negotiation. Some common themes and distinctive differences. Benefits and disadvantages. One or more may be suitable in any particular case. David Hodson www.iflg.uk.com

5. Introduction to international family law ADR • Can produce huge saving in costs and time. • Remove contentiousness, distrust and hostility • Can be hugely beneficial for children. • Assists enforcement. • Uses digital technology • Arguably requires greater, enhanced skills and awareness • Crucially is flexible to the international aspects David Hodson www.iflg.uk.com

6. When never to engage in international ADR When never to engage in ADR in an international case; or is this actually essential? • Jurisdiction for the dispute has been established, but ADR to decide jurisdiction and forum? • The law for the dispute has been established, but preliminary ADR to discuss or to bypass this issue? • The assets are secured for the final outcome. • The child has been located and is in a safe environment for the final outcome David Hodson www.iflg.uk.com

7. The disadvantages of racing • Major disincentive to ADR by lis pendens, especially Brussels II and Maintenance Regulation. • Having issued tactically first, prospects of ADR are often significantly reduced. • Laws of racing to issue are directly opposed to policies of encouraging international ADR settlements David Hodson www.iflg.uk.com

8. International ADR is not according to any national law • This is a strength; the parties can overcome weaknesses and shortcomings of national laws and create their own sense of fairness and right outcome. • This is a weakness; issues of enforceability, compellability, need for good foundations and groundwork. • It is a massive call for international good practice David Hodson www.iflg.uk.com

9. Identifying and understanding differences of ADR practice • Is the mediation outcome automatically binding? See EU Mediation Directive Art 6. • Anxieties about lack of disclosure and/or legal representative involvement. • How can the more recent arrivee, arbitration, avoid this and other problems? • Some jurisdictions emphasise or encourage co-mediation, directive mediation, med-arb. • Specialist international family lawyers mostly don’t understand different ADR practices. Failure of international dialogue. Much neglected issue. David Hodson www.iflg.uk.com

10. Identifying the international ADR specialists • No international branding or accreditation. • Believed to be no lists of ADR specialists in each jurisdiction. • No or minimal training • No overarching organisation either of varieties of ADR or all ADR • Could this be AFCC role? • Urgent action needed David Hodson www.iflg.uk.com

11. Be aware of gender and cultural issues • In some cultures and jurisdictions, being willing to negotiate can be seen as a weakness. • In some jurisdictions, ADR is used as a tactical ploy to find out the other side’s case, exhaust funds or first run at negotiations. • In some cultures, little possibility of gender equality in ADR. David Hodson www.iflg.uk.com

12. ADR of particular benefit in respect of • relocation, combining finance and children in the overall resolution • international marital agreements where there is hopefully no litigation and instead a willingness to agree, • forum where it’s unfair if one of the competing countries decides the issue, • child abduction where courts will not consider reason for the abduction yet an overall parenting arrangement can sometimes be put in place (see innovative pilot created by Denise Carter OBE when at Reunite) David Hodson www.iflg.uk.com

13. Digital technology is essential • Parties often in different jurisdictions including time zones. • Parties may have their primary lawyers in different jurisdictions. • Maybe issues of language. • More likely to be using jurisdiction neutral forms of disclosure and evidence giving. • Reality that international families live in a digital community and expect digital resolutions David Hodson www.iflg.uk.com

14. Forum arbitration • The International Family Law Arbitration Scheme. • Overcomes fundamental problem of forum dispute where it is resolved in the country of one possible forum, by the judges of that country according to that country’s laws. Creates feelings of major unfairness and partiality. • Scheme uses arbitration as developed nationally. Independent arbitrator from neither jurisdiction. Significant digital engagement. Commitment to follow the outcome in respective jurisdictions • www.internationalfamilyarbitration.com David Hodson www.iflg.uk.com

15. Good practice • International good family Law arbitration practice in international cases. See handout for discussion • Child abduction: see Hague Guide to Good Practice of Mediation in Child Abduction cases at www.hcch.net • Collaborative law, 29 Sept 2010 David Hodson www.iflg.uk.com

16. New York Arbitration Convention • Calling upon governments to remove reservations from New York Arbitration Convention in order to allow the Convention to apply to family law matters. • Hugely assist in enforcement and probably better than most international treaties David Hodson www.iflg.uk.com

17. Commercial considerations • Huge market is available across the world • ADR professionals not tied to any jurisdiction. • May co-work e.g. mediation across borders, or with other professions • Cases may specifically not be from one’s jurisdiction • Outcomes need lateral thinking and creative approaches David Hodson www.iflg.uk.com

18. Commercial considerations • Few existing specialists • Potentially considerable demand from clients • Resistance from lawyers anxious at loss of high premium work • High prof risk so care is needed; hence need for organisational safeguards and good practice David Hodson www.iflg.uk.com

19. Existing resolutions At the 6th World Congress on Family Law and Children’s Rights, Sydney, March 2013, the motion was passed as follows. This Congress encourages arbitration as an innovative and useful means and opportunity for resolving private international family law disputes, wherever possible and appropriate, and alongside other dispute resolution methods; invites the EU and the Hague Conference to incorporate arbitration as dispute resolution within future family law measures; and supports the creation and sharing of good family Law arbitration practice between jurisdictions and professions. David Hodson www.iflg.uk.com

20. Going forward • The Sydney 2013 resolution deserves more active support and it is disappointing at the significant lack of progress • There must be considerable early progress in identifying appropriate models of ADR in international cases, with lists of distinctive specialists and creation of good practice. • Organisations need to take the lead in bringing together leading ADR specialists across the world. • With ever increasing global international family law work, essential that ADR is available and properly skilled and organised. David Hodson www.iflg.uk.com

21. Thank you. • Professor David Hodson OBE MICArb • The International Family Law Group LLP • Hudson House, 8 Tavistock Street, Covent Garden, London, WC2E 7PP • Telephone: +44 (0) 203 178 5668 and +44 (0) 7973 890648 • Email: dh@davidhodson.com • Twitter: @DMHodson/ @IFLGUK • Website:www.iflg.uk.com