If approached with the necessary precautions and respect for their views, the inclusion of a child in relevant family mediation matters can bring a highly valuable perspective to the process. What benefits do the participants stand to gain from child-inclusive mediation, and how can the child’s rights be safeguarded throughout? Mediation specialist Caroline Bowden explores the subject in depth in this article.
What are the primary objectives of child-inclusive mediation, and how does it differ from traditional family mediation?
Traditional child-related mediation involves the primary caregivers – normally the parents – discussing the arrangements for their child or children with the mediator as their active facilitator. I can put forward various options to the participants, but they will decide the outcomes. The discussions go wider and deeper than any court case. Judges only decide on how much time is spent by a child with their parents and perhaps some of the practical arrangements to make that happen. In mediation, parents can discuss their communication with each other and how to improve what will be a life-long relationship as co-parents, so that their children can flourish.
Child-inclusive mediation builds on the same objective, but layers onto it the direct consultation between the mediator and the child.
What are the potential benefits of child-inclusive mediation?
Child-inclusive mediation will only benefit the child if they enter the process freely. They must have a genuine choice and they need their parents’ consent to be offered that choice in the first place. Some children may decline; they may feel like talking to a third-party stranger is not for them. However, just being offered the choice may be empowering.
Other children may feel that their views have been ignored thus far and would welcome the opportunity to be heard. Perhaps they resent their parents speaking for them or feel that one parent is pressuring them into an arrangement that upsets them. Others may accept simply because they are curious!
The benefits, if they do attend, have been set out in the mediators’ go-to textbook: ‘Family Mediation’ by Lisa Parkinson1. Lisa has done more than anyone to develop and promote the practice of child-inclusive mediation. I have summarised her key takeaways:
- Offering a child the opportunity to talk shows respect for them as individuals and recognises their legal right to be consulted if they wish. Art.12 of the UN Convention on the Rights of the Child, to which the UK has been a part since 1991, states that every child has the right to express their views and wishes in all matters affecting them and to have their views considered and taken seriously.
- A child may need reassurances that a parent has been unable to give them. This can be a two-way process, as the mediator can share the parents’ messages with the child. The mediator can reassure children that their feelings about their parents’ separation are normal and that the problems they are experiencing are not their fault.
- Sharing messages from a child, at the child’s request, helps parents to take their needs into account and make arrangements that are more likely to work in practice.
- The conversation with the child may dispel misunderstandings, for example, that a child does not want to see a parent, when the child does – but in a different way.
- The process enables a child to express concerns about the family, such as the practicalities of having their parents in two different homes, or more significant risks which will need careful exploration and possibly a referral for safeguarding.
- A child may find it easier to talk with an empathetic third party who helps them to talk freely without fear of upsetting a parent.
- Some children want to explain their wishes to their parents themselves and some parents want to explain their decisions to their children. A mediator can host a family meeting for this mutual feedback, obviously needing to do this with great care and sensitivity.
It is important that the mediator makes very sure that they only feedback what the child has given them permission to say.
The child needs to be relieved of any sense of responsibility to ‘sort out’ their parents’ issues. The mediator must discuss the implications if the child wants to be very directive, as they may not appreciate the long-term impact of that.
Can judges ask mediators to see the children caught up in legal proceedings and then feedback their comments to the court?
Definitely not, but that has not stopped judges from asking! Given the delays and pressures at court, it is predictable that these requests are increasing. However, it is fundamental to the very nature of mediation that it is a confidential and standalone process. Mediators can be naturally helpful, so they can find these requests hard to refuse. Yet it is vital not to erode the clear and distinct space our profession occupies. We are not an outsourced agency of the justice system!
What is the suggested (and typical) age range of children who may be involved in child-inclusive family mediation?
All accredited mediators abide by a Code of Practice, which states that all children and young people aged 10 and above should be offered the opportunity to have their voices heard directly during the mediation.
How should children be prepared for their participation in mediation?
The preparation starts with the discussions with the parents and only after having received their joint permission to do so. It is likely now that most children will be contacted via email rather than by letter, but the parents may have their own suggestions.
In the first contact with the child, the mediator should explain who they are, what they do and how it came about that they are making contact. In age-appropriate language, they need to explain the confidentiality of the process and what the child’s participation would look like and the fact that it is entirely voluntary.
The child should be able to ask questions about the process before agreeing to engage. This is an important stage during which the child must feel a degree of trust and reassurance that what they say will be respected.
What measures must be implemented to ensure the confidentiality and privacy of children during and after the mediation process?
Accredited mediators are already skilled at working within the parameters of confidentiality with their adult clients. The main difference is to make sure that children understand that there are exceptions to the fact that the child can tell them anything and they will keep their confidence. It is vital that these safeguarding conversations are carefully handled and in a way that is age-appropriate.
Are there any significant drawbacks or potential challenges to be taken into account when assessing whether a child ought to be involved in family mediation?
There may be reasons why mediation would be unsuited for a family. These might include issues of substance dependency, domestic abuse, vulnerabilities due to a child or parent’s mental or physical ill-health or other needs. Mediators must also look out for referral fatigue, if a child is already being seen by several agencies.
An obvious challenge to arranging child-inclusive mediation is a reluctance on the part of one or both parents. This can come down to something as basic as cost, as at least one extra meeting is required. There is no additional legal aid payment to make this viable for legal aid providers either. The other common source of reluctance is fear of what the child might say and whether their opinion is authentic or reflecting the wishes of the other parent.
Another fear is that the meeting itself may be distressing for the child. One hopes that the skilled mediator would ensure that this is not the case, but it is more likely if the child feels under pressure from one or even both parents to support and echo their views.
What advice would you give to a less experienced mediator concerning child-inclusive mediation?
All mediators accredited with the Family Mediation Council must either be trained in this field, or receive awareness training, so I am not sure I could say much that they have not already heard! To qualify to see children, there are at least 40 hours of learning on both the practical and the theoretical elements of this sensitive role.
About Caroline Bowden
Caroline Bowden is a solicitor who works exclusively in mediation. She specialises in all aspects of family law, concentrating especially on financial matters and children issues. Caroline is also an accredited civil and commercial mediator whose facilitation skills acquired from her years of experience in family mediation prove invaluable in the search for solutions in the commercial and civil context. She can offer a fusion of civil and family ways of mediation, adapted on a case-by-case basis, which includes having solicitors directly involved in the mediation where needed.
About Anthony Gold
Anthony Gold is a leading law firm based in London. The firm’s solicitors specialise in various areas of law and are experts in their fields of legal services. They are negotiators and litigators, committed to doing whatever is best for their clients.
Caroline Bowden
Consultant Mediator and Solicitor
The Cottons Centre, 5th Floor,
South-West Hay’s Lane, London
SE1 2QG, UK
Tel: +44 (0)20 7940 4050
E: csb@anthonygold.co.uk
www.anthonygold.co.uk
