The Hague Convention (Convention on the Civil Aspects of International Child Abduction)
To those who are Interested in Mediation
（Assistance Provided by Central Authority under the Hague Convention）
May 14, 2018
1 About "Mediation"
In order to settle the case of removal of a child, it is highly beneficial, from the viewpoint of welfare of the child, to seek an amicable resolution by agreement as a result of voluntary discussion between both parents.
To that end, the Hague Convention Division of the Ministry of Foreign Affairs, which assumes the role of Central Authority of Japan under the Convention on the Civil Aspects of International Child Abduction (hereinafter “the Hague Convention”), introduces methods to seek an amicable resolution to the dispute through discussion between applicant and respondent (hereinafter referred to as "the parties" including the applicant and respondent) based on Article 9 of the Act on Implementation of Convention on the Civil Aspects of International Child Abduction (the Implementation Act).
Specifically, while we facilitate communication between the parties, we also facilitate discussion between the parties by introducing the Institutions for alternative dispute resolution (hereinafter referred to as the "ADR Institutions"), which are competent in mediation.
2 "Introduction of the ADR Institutions"
(1) What are the Advantages of Mediation?
- a. "Mediation " is a method by which a resolution to the dispute is sought by achieving a settlement between the conflicting parties who are given an opportunity for discussion with presence of a third person, who is fair and impartial, and confirms the points of argument of both parties, and clears up misunderstanding between them.
- b. In cases where the points of argument center around the removal, the retention or the visitation or other contacts, the parties are unlikely to be in a friendly relationship. The parties may be confused as to what and how to discuss, or what to decide, and thereby enter into an heated argument of “return the child or not”, or “let you meet the child or not” which does not lead to settlement Consequently, there are many cases where the parties alone have difficulty in discussing to seek an amicable resolution. However, if both parties have the intention to seek a resolution through discussion for the sake of the child, they can utilize mediation.
- c. Settlement through "Mediation" has such disadvantages as that （1） you cannot force the respondent to attend (if the respondent who has agreed to the mediation decides not to attend the session eventually, discussion for a resolution becomes impossible), or as that （2） a settlement agreement does not guarantee immediate compulsory execution where the agreement is breached. On the other hand, there are such advantages as that （1） a mediation session can be set up promptly and flexibly (it is easier to facilitate smooth discussion), and that （2） more flexible solution is possible compared to a settlement by judicial proceedings (Parties can have more options to a resolution).
Moreover, where a settlement is achieved through mediation, the title of obligation with the equivalent effect can be obtained by an arbitration decision by an ADR Institution based on the agreed contents of the settlement (and compulsory execution can be carried out), given that the parties have written arbitration agreement (Article 13 paragraph (2) or (5) of arbitration Act) and transferred it to arbitration procedures (Article 38 paragraph (1) of Arbitration Act) following the settlement.
- d. Furthermore, in cases where a settlement is achieved through mediation procedures, and the content of the settlement be confirmed at the conciliation of domestic relations at the court between the parties, the content of the settlement shall have the same effect as an enforceable title of obligation that arose in final and binding judgment and in the adjudication of domestic relations. In cases where the settlement contains an agreement on the return of child, and a petition for the return of child under the Implementation Act is filed to a family court and conciliation of domestic relations is concluded between the parties in the case seeking the return of child with the same provisions as in the settlement, the part of the statement regarding the agreement on the return of child becomes title of obligation for compulsory execution of the return of child as having the same effect as a final and binding order to order the return of child.
(2) General Flow of Mediation Procedures
A general flow of mediation procedures is shown as below. (Details of procedures vary depending on ADR Institutions. Please directly inquire about details to the relevant ADR Institution.)
(3) How to Find ADR Institutions
- a. ADR Institutions commissioned by the Ministry of Foreign Affairs
ADR Institutions which the Ministry of Foreign Affairs commissions the mediation proceedings are available. (Here you find the List of Commissioned Institutions.)
In this case, fee for the ADR Institutions does not apply as it is incurred upon the Ministry of Foreign Affairs. (However, as the budget of the Ministry of Foreign Affairs is limited by a ceiling, any cost exceeding the ceiling must be compensated by the parties concerned. As items of expense and numbers to be borne by the Ministry of Foreign Affairs are different depending on each Institution, please directly inquire for more details to each Institution.) Also, the use of the ADR Institution commissioned by the Ministry of Foreign Affairs is principally limited to one time only.
- b. Privately Searching for Legal professionals or ADR Institutions
In case where the intermediation of a specific legal professional or other ADR Institution is preferred, you can use the attorney or the ADR Institution to seek mediation for discussion.
In such a case, all the cost including fee to use the legal professional or the ADR Institution must be borne by the parties concerned.
(4) Procedures to Use ADR Institutions Commissioned by Ministry of Foreign Affairs
- a. Select an ADR Institution you would like to use from the List of Commissioned ADR Institutions. Please refer to Here (PDF) and the website of each ADR Institutions for the feature of them.
- b. The Central Authority will ask both parties which ADR Institution prefers to use.
If both parties' preferences match, we will inform them of the contact point of the ADR Institution. Application must be made directly to the ADR Institution. (The Central Authority will assist you until the decision as to which ADR Institution to be used is made. The parties will be responsible for submitting application for mediation or other specific procedures.)
- c. In cases where preferences of the parties for the ADR Institution did not match, we will inform both parties of that occurrence. After that, we will ask if the parties have the intention to use another ADR Institution, and the parties are requested to notify their intention. If they intend to use another ADR Institution, the Central Authority will again help communication between both parties on the ADR Institution of their preference.
- d. The Central authority will make effort to coordinate the parties’ preferences over which ADR Institution to use, however, if the coordination fails, commissioned ADR Institution will no longer be available to seek mediation.
- e. In cases where the ADR Institution is successfully coordinated for mediation and a mediation session is held, please inform the Central Authority of the matter before the mediation session begins and when the result of mediation becomes known.
(5) If Mediation for Discussion is not carried out
The parties can choose court proceedings if he or she requests. In that case, please file a petition directly to the court. (The Central Authority cannot assist you in filing a petition to the court. If you are keen to hire legal professionals, please contact the Central Authority). (Refer to this page as well.)
If you live together with the child, please note that the left behind parent may file a petition for the court proceedings. If you are interested in consulting with legal professionals on how to respond to that, please contact the Central Authority.