CBM vs. international vs. intercultural Mediation
The term CBM (cross-border mediation) has been established with the 2008 EU Mediation Directive (2008/52/EC). CBM mediators should be aware of the fact that the term is limiting the scope of using CBM, because it does not cover all international cases. CBM needs to be distinguished from the international mediation.
Strictly speaking, one would have to differ CBM as to be mediation in cross-border case and cross-border mediations. Section 8 of the EU-directives defines CBM as follows:
“The provisions of this Directive should apply only to mediation in cross-border disputes. ”
Thus, the term cross-border mediation was coined – and based on the nature of the dispute. CBM is assumed therfore, if the parties are situated in different countries, for example if an Austrian wine merchant buys wine at an Italian winery (see https://www.in-mediation.eu/beispiel-onlinemediation). But what if the mediation of two parties of the same nationality and living in the same country is performed by a mediator abroad? And awaht if that mediation happens abroad? What if the Austrian parties have choosen the famous mediator from Munich and travel to him in oder to do the mediation there? Conceptually, this would not be covered by CBM in the sense of the directive. Nevertheless it is an international mediation in which “international law” might be appplicabale. The concept of CBM is therefore not entirely accurate. It would be useful to differ between cross border mediation, international mediation and since parties in different countries often belong to different cultures, intercultural mediation will be an issue as well.
Now we have to challenge that a good education to the CBM has to teach all these aspects – not to mention the technical problems that arise in some cases from international long distances. Conversely, it must be received at least as well on the international aspects of intercultural mediation training. It moight happen for example, that a Turkish couple living in Germany, will be divorced according to Turkish law. The German judge will have to provide it. The same question will be coming up in a mediation. Now questions of international and foreign law need to be clarified as well as the different cultures though that would not be CBM but international mediation.