Originally from World Arbitration and Mediation Review

Abstract

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Mediation is an important tool for resolving parenting disputes with an international element, including disputes under the Hague Abduction Convention.  Settlements in cases involving the United States and Mexico can be more difficult to achieve, however, because the two countries have no shared legal framework for recognition and enforcement of parenting agreements or orders.  This article describes the current legal framework in each country, identifies particular concerns that arise in different types of cross-border parenting disputes, and argues that ratification of the 1996 Hague Child Protection Convention would help parties achieve reliable settlements and protect the best interests of children.

I.     Introduction

In the phrase made famous by Robert Mnookin and Lewis Kornhauser, negotiations to settle a legal dispute outside the courtroom are often described as “bargaining in the shadow of the law.”

In international custody disputes, the primary body of law casting a shadow over negotiations is the Hague Convention on the Civil Aspects of International Child Abduction (“Abduction

Convention”),which has one hundred contracting states, including the United States and Mexico.  The Abduction Convention provides a return remedy when a child has been wrongfully removed or retained outside the child’s country of habitual residence. It also serves wider purposes: preventing child abduction and helping parents come to an amicable resolution of their differences in cross-border parenting disputes.