Page 476 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

2.3 The Nature of Convention Mediation and the Potential Criminal Charges
Involved

In this section, it is argued that the nature of Convention Mediation and

the potential criminal charges involved may impede the inclusion of the child into
mediation or make it inappropriate.

Unlike general mediation, convention mediation is considered as only a part of
the whole application process under the convention; therefore, authorities have been

much involved from the outset since the application was filed even though one purpose
of mediation in general is to reduce the interference of state authorities and leave
the disputes to be resolved by parties themselves. The decision to include children in
52
mediation, thus, is in the hand of the authorities, who are exposed to the application in
the first place, rather than the parents. Research has demonstrated that in Germany,
53
the country with great reputation of listening to young children’s voices in judicial

settings, it is rare that children are listened to in international child abduction mediation.
54
Nevertheless, even in the case that parents are invited to bring the child into mediation,
they hardly accept that invitation. On the other hand, if the authorities decide to include
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the child in the mediation, against parents’ intention, this might reinforce the harm of
the pressure burdened on children as being put in the middle of the high conflict where

even parents themselves do not want the child to be involved. In Switzerland, the one
who decides the involvement of children in mediation is the authority or sometimes
the mediator while it can be the responsibility of the court in Germany.
56
What may reinforce the authority of the state officials to take control of

the mediation and decide whether to include children in mediation is when such criminal
charges as kidnapping are involved in international child abduction dispute. Even if
the child’s voice might be heard in this kind of situation, the child might be disappointed

52 SARAH VIGERS, supra note 6 at 86-90.
53 Id.
54 Id. at 86.
55 Id. at 87.
56 Id. at 87-88.

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