Arbitration/Mediation/Why would The National Center
QUESTION: Why would The National Center for Missing & Exploited Children http://www.missingkids.com
refuse to recognize a Japanese child custody order giving the Japanese mother custody? The courts in the United States gave the American father custody and ordered the Japanese mother to return her children to the United States. Japanese police tell ABC news that the Japanese women is wanted by the FBI for parental abduction, they will not arrest her if she does not violate Japanese law and they will not recognize the American child custody order.
ANSWER: If you have looked at some of my previous answers you may know that I always advise questioners that mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to help the parties decide how to negotiate their own settlement.
I am not an attorney and cannot give you legal advice nor do I have any content expertise in international child custody matters. You may wish to consult an attorney at some point.
For your general information, the pros and cons of the types of dispute resolution methods follows.
Arbitration, Mediation, and Litigation
Arbitration: the referral of a dispute to one or more impartial persons for final and binding determination outside of the judicial system
Benefits of Arbitration:
Confidential, no public record
Limited exchange of documentation, information
Quick, don't have to wait for a court date
Arbitrators have expertise in the subject matter and are trained in conflict resolution
Cheaper than litigation
Preserves business relationships
Negatives of Arbitration
It's often a compromise, no 100% winner
Complex arbitration can be costly
If not satisfied, may litigate the arbitration procedure
Poor results with an unskilled arbitrator
Both parties must agree to cooperate in the process
Mediation: the process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement of their dispute.
Benefits of Mediation:
Neutral mediator can objectively suggest alternatives not considered before
Parties are directly engaged in negotiating the settlement
Can be quicker than litigation
Less costly than litigation
Preserves business relationships
85% of American Arbitration Association cases mediated find successful solutions
Negatives of Mediation
may not reach a binding decision
Litigation: using the judicial system to resolve disputes
Benefits of litigation:
a clear winner and loser
uses a prescribed set of procedures
more predictable outcomes
Negatives of Litigation:
waiting for court dates can do more harm
usually more expensive than mediation and arbitration
part of the public record
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QUESTION: Why would the American man be upset that the Japanese woman says that we will play this game according Japanese rules, not American rules?
The system instead favors a "clean-cut" approach, in which the non-custodial parent disappears from the child's life as if that parent never existed, international family lawyer Jeremy Morley said.
"The idea of both parents being involved in raising the child is foreign to the Japanese culture," Morley said. "There's been no historic role for both parents being involved, and the legal system makes no provision for any kind of visitation rights."
Japanese judges also demonstrate a clear bias toward awarding their citizens full custody in international divorce cases, he said. Children born in the United States automatically have Japanese citizenship if one of their parents is Japanese.
"A Japanese court will never give custody to a foreign parent," Morley said. "If the child is a Japanese national, the system will only see it as his right to be raised in Japan. They will feel it would be extremely unfair to a child to deprive him of the opportunity to live in a wonderful place like Japan."
Forum shopping is the informal name given to the practice adopted by some litigants to have their legal case heard in the court thought most likely to provide a favorable judgment. Some jurisdictions have, for example, become known as "plaintiff-friendly" and so have attracted litigation even when there is little or no connection between the legal issues and the jurisdiction in which they are to be litigated.
Examples include the attraction of foreign litigants to the United States due to its expansive acceptance of personal jurisdiction and favorable litigation climate, and the United Kingdom for its stricter defamation laws.
The term has become adopted in a wider context for the activity of repeatedly seeking a venue or willing listener for a concern, complaint or action, until one is found.
A U.S. district court judge called it correctly when he insisted that [i]n reality, every litigant who files a lawsuit engages in forum shopping when he chooses a place to file suit. International family lawyers work to assist their clients in that process.
In one case, a court expressly acknowledged that the plaintiff had chosen to move to the state in order to benefit from the liberal divorce laws in that state. The court found that was perfectly appropriate and did not justify a stay or dismissal of the case.
On the other hand, forum shopping is generally seen as particularly inappropriate when it is intended to secure a more sympathetic forum in a child custody case. Indeed, courts have found that the Hague Abduction Convention was designed to deter parents from engaging in international forum shopping in custody cases. Specifically, the Hague Convention attempts to prevent situations in which a parent dissatisfied with current custodial arrangements flees with the child to another country to re-litigate the merits of custody and to obtain a more favorable custody order.
Nonetheless, it may well be in the best interests of a child to remove the child from a forum which does not apply the best interests test in child custody cases to a forum which has a “better” law and practice in such cases.
When people's lives were mostly confined to single state, local court orders for maintenance and child support, and for contact with, and parental responsibility for, any children of the family were administered through a relatively trouble-free system. But, as the borders between states became increasingly porous, people moved in search of employment, to build businesses or, simply, because they could. The marriage of people with different nationalities or domiciles therefore became more common. This has produced serious problems for the parties and for the court systems which are now expected to accept jurisdiction over persons sometimes only transiently within their territorial boundaries, and to enforce the judgments and orders of foreign courts. These more technical problems can be made worse by any personal animosity between the parties which contributed to the marital breakdown. In some more extreme cases, spouses move themselves and/or their assets to other jurisdictions to evade their obligations or liabilities, or they move to establish personal jurisdiction so that they can engage in forum shopping. Hence, suppose a German man marries a Turkish woman and they live in Poland until the breakdown, at which point the wife goes to Nevada because she has heard that the courts of the U.S. allow quick divorces and give generous maintenance and property settlement awards. When he hears of this plan, the husband moves himself and all his assets to Ireland because he has heard that Irish courts do not recognize and enforce U.S. divorce decrees and their ancillary orders.
So sorry, I can't possibly advise you with these questions.
International mediations or conflicts of this sort are rife with cultural, legal, procedural, and treaty nuance and detail all affecting the various arguments for or against, and all fair game for parties on each side of a dispute to reference as germane to their claims.
Without understanding and experience with the many factors at play, and without the ability to research the precedent established by courts in comparable litigation, it is impossible to speculate on or explain the motivations of any party.