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Penn Law’s Mediation Clinic: Tackling international child abduction disputes

April 17, 2017

For students of Penn Law’s Mediation Clinic, most of the conflicts they mediate — employment discrimination or child custody cases, small claims, private criminal complaints, or other disputes — typically are concluded within the space of two or three hours, with many producing a mutually agreed upon resolution between the parties.

Last semester, however, two Law School students took a month to prepare for a much larger, more high-stakes mediation: an international child abduction dispute in Omaha, Nebraska. The students traveled with Professor Douglas Frenkel L’72, the Mediation Clinic’s director, to Nebraska to lead an interdisciplinary team, which included a developmental psychologist/parenting coordinator, in the mediation.

Since 2009, the Mediation Clinic has had a relationship with the U.S. State Department, which refers these types of disputes to the Law School’s program. Typically, the conflict stems from allegations that one parent has abducted or wrongfully retained a child from another country and is keeping that child in the United States.

When the “left behind” parent locates the child and fails to secure the child’s return, they contact the central authority of their country, which in turn contacts the U.S. State Department, which, after determining that the parties are willing to talk, refers them to the clinic.

Frenkel has participated in around 20 of these Hague Convention mediations, he explained, involving five continents. He is the Morris Shuster Practice Professor of Law and an expert in mediation, advising lawyers around the world on dispute resolution. He was the architect of Penn Law’s nationally renowned clinical program, having served as Director of the Gittis Center for Clinical Legal Studies from 1980 to 2008.

For these kinds of international mediations, some cases are done in person, but in most the parent in the other country is not present. (A just-concluded clinic matter involved a father in New Zealand and a mother in a southern U.S. state.) Both parties, however, have (or are provided with) a lawyer — the stakes of these cases are too high for them not to have counsel, Frenkel noted. To facilitate these proceedings, the clinic uses a method of internet video conferencing that allows participation from anywhere in the world.

“It’s really twenty-first century lawyering,” Frenkel said.

In the Omaha case, a girl had been taken by her mother from her home country (in Europe) to Nebraska, where the mother remarried. The father claimed never to have consented to the child’s relocation. He secured the services of a lawyer in Omaha through the State Department, and filed a lawsuit against the mother. That’s when the Mediation Clinic was called in.

Frenkel explained that an interdisciplinary approach involving the participation of a psychologist in the mediation effort is key in these kinds of disputes. Along with the questions of legality, the child’s development and welfare must become part of the discussion.

“Parents often do not have a clue what they’re doing to the children, what the children need, and what the children can tolerate,” Frenkel said.

Often children have been in the United States so long that they are resistant to returning to their home country — a factor that complicates the search for a resolution.

Penn Law students Chelsea Berry L’17 and Andrew Hirschel L’18 led the two-day mediation, which included preparation with the lawyers and a day-long proceeding that lasted from 9:30 in the morning until 10:30 at night. All of the parties involved traveled to Omaha specifically for the mediation.

“This was our one shot to get a resolution,” said Hirschel, who will be spending his summer working at the Mecklenburg County Public Defender’s Office in Charlotte, North Carolina.

Because the students had taken ample time to prepare, they were able to move quickly through the history of the dispute and on to the more difficult task of assisting the parties in their efforts to resolve the problem.

“We were able to ask more pointed questions and demonstrate the listening and empathy skills we developed throughout the semester,” said Berry.

At the culmination of their long day of work, the students and Frenkel were joined around a large hotel conference table by all who had participated — both parents, their lawyers, the child psychologist, two translators, a support person for each parent — and the process was brought to conclusion.

Looking back on their time in the clinic, both students noted that its emphasis on party-generated solutions has forced them to think differently. Traditionally, legal practice is based on an adversarial framework, but in mediation, the dispute only ends when both parties are in agreement.

“Unlike lawyers, mediators can only succeed if they can get two people who disagree strongly to see another perspective and change their minds voluntarily,” said Frenkel. “They can’t do that by taking one side over the other side.”

“You’re not necessarily looking for ways to pick apart something that someone else has articulated,” said Hirschel of his work in the clinic. “Ideally, you’re looking for ways to take something that the Party A has articulated as their desire and find out how that lines up with what Party B hopes to achieve.”

“From that lens as a student, it was great to be able to see a complex problem from both sides, versus just advocating for one client or another,” said Berry, who will be joining the law firm of Weil Gotshal & Manges after graduation. “It was a more holistic picture of a dispute that you don’t get in other courses.”