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International Laws and Framework

Two international legal frameworks exist which aim to help and facilitate the resolution of cross-border disputes. They share common objectives and principles intended to promote effective and efficient resolution of cross-border disputes. Both frameworks provide high level principles rather than detailed guidelines for the conduct of mediation.  Other international laws have some relevancy.

 

EU Cross-Border Directive

The European Union (EU) Cross Border Directive on Mediation, Directive 2008/52/EC envisages that Member States will create their own mediation guidelines in accordance with each Member’s statutory or regulatory framework. This Directive applies to civil and commercial matters, involving at least one party domiciled or habitually resident in a Member State. The range of disputes is broad, encompassing contract disputes, tort claims and family law matters. The Directive allows the parties to request that the mediated settlement be made enforceable as a court judgment or enforceable instrument and provides a mechanism for cross-border enforceability within the EU.

Singapore Convention

The Singapore Convention applies to international commercial settlements resulting from mediation. The focus of this Convention is on commercial matters; it specifically excludes family, inheritance or employment disputes. While the Convention has 56 signatories, only 11 countries have ratified the Convention as of October 2023.

New York Arbitration Convention

A key instrument in international arbitration is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, known as the “New York Arbitration Convention”. The Convention applies to the enforcement of foreign arbitral awards and the referral by a court to arbitration. Unlike the Singapore Convention, the New York Convention does not exclude family law disputes, but certain countries may have elected to not apply the Convention to family disputes, such as Ireland and the United States.

Hague Conventions

Mediation in children’s cases with a cross-border element can involve international child abduction, leave to remove and international contact. The legal context of child abduction cases is the 1980 Hague Convention, a multi-lateral treaty that seeks to protect children from the harmful effects of wrongful removal and retention across international boundaries. The Convention provides that Contracting countries shall take all appropriate measures to obtain the voluntary return of the child, a clear direction in relation to the use of mediation.

The 1996 Hague Child Protection Convention seeks to improve the protection of children in international situations, providing common rules on jurisdiction applicable law and recognition and enforcement on parental responsibility matters. It also establishes a system of cooperation between signatory States through their Central Authorities, to assist parents in resolving cross-border family disputes.

Maintenance Convention 2007

The Convention of 23rd November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (HCCH 2007 Child Support Convention) may also have applicability in certain mediation contexts.

European Code of Conduct for Mediation

The European Code of Conduct for Mediators is a short document that sets out a number of principles that mediators may elect to comply with. The Code is applicable in all kinds of civil and commercial disputes. Section 3 of the Code sets out the obligation on the mediator to ensure that the parties have understood and expressly agreed to the terms and conditions of the “mediation agreement” before mediation commences, however, it should be noted that Code provides that the mediation agreement may be drawn up in writing if requested by the parties, suggesting that the agreement to mediate can be oral.

Legal context for cross-border family mediation in the EU

Council Regulation (EU) 2019/1111 and Council Regulation (EC) No 4/2009 make up the legal context for family mediation across borders in the European Union.


Regulation (EU) 2019/1111, which repeals Regulation (EC) No 2201/2003, deals with the jurisdiction, recognition and enforcement of decisions in matrimonial matters, matters of parental responsibility and international child abduction. The Regulation, which applies from August 1st 2022, deals with divorce, legal separation, annulment of a marriage, and parental responsibility to include: custody and access rights; guardianship; children in care; and the protection of children in relation to their personal property. In a cross-border context the Regulation provides: harmonised rules on jurisdiction and sets out an improved return procedure in cases of child abduction.


The scope of Council Regulation (EC) No 4/2009, as amended, covers all maintenance obligations arising from a family relationship, parentage, marriage or affinity; and guarantees equal treatment of all maintenance creditors in the European Union. The Regulation ensures that a maintenance creditor is able to obtain, in a Member State, a decision that will automatically be enforceable in another Member State without any further formalities. This instrument brings together provisions on jurisdiction, conflict of laws, recognition and enforceability, enforcement, legal aid and cooperation between Central Authorities.