Here's an article by our convenor, Scott C. Docherty, on child-inclusive mediation.
If you, or your client who is separating with kids, are thinking that it might be of benefit to involve the children in some way in the separation process, here’s a little bit of information to help you decide how best to consider it.
when is it ok to involve kids in family mediation?
So what’s clear from the research is that although a ‘child inclusive’ approach should be encouraged in supporting families experiencing parental separation, it’s not always appropriate. The obvious examples include:
- where there are protection issues that need to be addressed first
- where it becomes clear that the children are too young or of a lower level of maturity and understanding
- where the parents are finding it difficult to reflect and listen to each other during mediation
- where they, or at least one of them, refuse to co-operate and communicate in the interests of their children, or
- where there is an unwillingness to address controlling behaviour
These are just some of the scenarios where consultation with children may not be in their interests. I will always be alert and on the lookout for such issues throughout mediation sessions, and in particular in individual sessions prior to the arrangement of any joint sessions, I will screen for domestic abuse and coercive control. If, during the course of mediation sessions, a child protection issue does arise, or if issues like domestic violence or coercive control arise or become apparent notwithstanding earlier screening, my approach will always be to discuss my concerns carefully with the parties, and to continue, adjust or terminate the process depending on my assessment of all relevant information to hand, and having confidentiality in mind, in anonymous consultation with, for example, the Law Society of Scotland a decision may also be made in respect of possible referrals to third parties in respect of the children and/or alleged victim(s).
Certainly in relation to the behaviour of the parents in separation, although the views of their children may help them understand more what is really important for their children rather than what they may have believed until now, they still need to be ready, to be in an appropriate frame of mind to listen and reflect on what they hear.
At the beginning of the child-inclusive process, therefore, it is vitally important to consider carefully the appropriateness of seeking the views of the children. Much will depend on the timing, as one of the parents may be at a different stage of grieving or acceptance following the separation and may not be ready yet to reflect clearly on how the separation is also affecting the children. Other considerations will include the stage of the litigation or mediation process, cultural values in respect of the roles of the children in decision-making, and the involvement of any third party services.
why involve kids at all?
On the flip side, it has to be borne in mind that children have the right to have their views heard where it is appropriate, and so suggesting to parents the possibility of involving their children in the process may help where it is accepted that the children are old and mature enough to express a view, and where the parents are ready to hear that view without judging the children for expressing it, and where sufficient preparatory work is completed in advance to ensure that the children are supported. The children may have a number of things they would like their parents to understand, often which may have little to do with what has been talked about by the parents until now. And this is a crucial point. Without the involvement of the children in the separation in cases where that would be appropriate, the parents are feeding into the process only indirect views of the children, which have the potential of being skewed, disbelieved or misunderstood. Where direct views are taken from the children in such cases, therefore, there is a greater likelihood that the parents will listen to and accept what has been said by the children, particularly as a well-prepared process may help dampen any feelings that the views have been tainted by the other parent, and ultimately the chances of a more developmentally-supportive plan for the children after separation being designed will be increased. Consideration as to appropriateness or otherwise of involving the children in the process, therefore, will need careful planning by the mediator in order that a reasonable assessment can be made taking into account all the circumstances.
so what happens in child inclusive mediation?
Before children are involved in the process, it is vital that the mediator takes the parents through preparation. Amongst other things, they will need to understand what the process will involve, how it differs from counselling or therapy, what the aim of speaking to the children will be, what their responsibilities will be in the process and thereafter as decision-makers, and how confidentiality will be handled in respect of the views of the children.
If involving the children is considered appropriate, the preparation is not over. Consent will be sought from the parents, they will then be asked to reflect on how they will each speak to the children about their potential involvement, and will explore the potential feedback they might receive after the mediator has spoken with the children. They will be asked to consider how they might react to what the children might say, and also what the children might want to keep from them. Also, the parents will consider with the mediator whether the children will be seen together or separately, what the mediator might be able to do to help the children relax and engage, and also what practical details need to be worked out before contact is made with the children.
Once the preparation is complete and the mediator is comfortable that involving the children is in their interests, usually the mediator will write a letter to the children. The letter will explain who the mediator is, why the letter is being written, and will confirm their parents are happy for the mediator to meet with the children to hear their views. It will invite them to meet with the mediator and include arrangements on how the meeting will be set up.
If the children agree to meet with the mediator, on the day the mediator will ensure the room is prepared as has been discussed with the parents. At the start of the meeting, the mediator will make the introductions, with or without the parent(s) being present depending on how they have planned things with the parents, and once alone with the children will make clear the confidentiality, voluntariness, boundaries, duration, and purpose of the meeting, using age-appropriate language and having in mind the development stage the children have reached. The mediator will ease into the conversation by respectfully encouraging the children to talk about their interests and hobbies, using open questions and being careful not to lead the children or give them the idea that what they say about things like living arrangements to the mediator will definitely happen the way they desire. If the children express feelings, the mediator will take care to acknowledge and support, inviting the children gently to explore and express how they feel about what is going on. The children will be guided through the conversation in such a manner that they feel safe, free to talk, and not coerced. The mediator will also clarify with the children what information from the conversation they would be comfortable the mediator tells their parents, how that information will be fed back to them, and what implications might arise depending on what is fed back. If another session is needed to help the children think about things, this may be arranged, on the understanding that this would be in consultation with the parents.
After the meeting, the mediator will think carefully about how to feed the information back depending on what it is. Once this is decided, when feeding back any information the mediator will encourage the parents with positive language about their children, before sensitively taking the parents bit by bit through the information the children have agreed to be fed back. Thereafter, this will be reflected on, and the mediator will help the parents explore their options from here, including using the information to inform further discussions at mediation.
Children must be prepared for participation. They must be helped to understand that while their views genuinely matter, they are not making the family decisions, and they are not responsible for family outcomes… Each child’s participation should be carefully determined with the goal of meaningful participation. Finally, children who do not wish to participate should not be forced to do so—their desire to stay out of family disputes should be respected.
With great care, the inclusion of child voice in family separation cases can be a positive experience for children and parents, leading to family outcomes that better incorporate children’s wishes and needs. Child-inclusive mediation, in particular, holds great promise for children and their families.
Set Another Place at the Table: Child Participation in Family Separation Cases – Stacey Platt – 2016
So like I said at the outset, it is clear from the learning that the entire process must be designed carefully and with the positive involvement of the parents. Much of the process will involve building trust and a feeling of safety with the parents and then the children, applying a bespoke and flexible approach depending on where the parents are in the separation process, and also on the age, maturity and developmental stage the children have reached together with how they have been affected by the separation or by anything else happening in their lives at the moment.
Involving the children in the separation process like this can be an extremely powerful tool in helping families with children after separation. It should not be bolted on without question to every family breakdown, as it has been shown that conflict engagement processes operate more effectively where all options have been explored reasonably with the parents, rather than it being assumed that this or that process is the magical formula which should always work (and which can lead, therefore, to procedural injustice and to parents feeling judged or blamed or if it doesn’t work).
My feeling is that where it is deemed appropriate, the earlier this process is explored with families during separation, the more likely it is that it will prove helpful to them in resolving issues and designing their transition.
Although the focus must always be on the best interests of the child, many disputes over children following separation are driven by relationship problems rather than legal ones. These disputes are often better suited to community-based interventions that focus on how unresolved relationship issues affect children and assist in reaching parenting agreements that meet the needs of children.
Moloney, Lawrence, Family Court Review v. 51 no. 2 Apr 2013