Hearing the Child’s Voice in the Mediation Process – Julianne Dowling

The breakdown of a family unit can be a traumatic time for all members of the family. However, parents are encouraged to maintain positive communication between each other as well as their children during this often very difficult period of family re-organisation. One effective way to achieve this, without involving the intervention of the courts, is through mediation. The main purpose of family mediation is to facilitate and empower the parties to negotiate and resolve issues swiftly, cost-effectively and confidentially, rather than having a decision imposed upon them by a judge. Moreover, mediation, involving a neutral third party, allows the parties to retain control and to negotiate flexible and creative solutions.

The Irish family mediation service has increased in popularity, mainly as a cost effective approach to dispute resolution. It is also seen as having a more effective outcome to issues which the couple wish to resolve. These can include financial and property affairs, custody and access of any children they have, etc. In addition, mediation may serve as a useful forum to remind parents of the child’s perspective in the relationship breakdown. While it is an extremely difficult time for the parents, children are also affected negatively by the situation. Unsurprisingly it is hard for a child to grasp the fact that their parents are no longer living together in the same house.

It can be quite common for children to experience psychological damage and low self-esteem as a result of the breakdown of their parent’s marriage. It is therefore important that the voice of the child is not lost amongst the resolution process and that the confusion and pain the child is experiencing is considered. Traditionally in the court setting, children have not been included in the decision-making process, with the couple typically making decisions by agreement or orders being imposed by the courts, with an often associated presumption that children lacked the capacity to participate in the decision-making process. However, it is wrong to presume that parents understand what is best for their children in such situations and it is therefore essential that the child’s voice is heard, as required by the UN Convention on the Rights of the Child, now reflected in Irish law.

During the period 2003-2010, the voices of children were rarely directly heard during the mediation process in Ireland, with each mediator having, on average, just one direct contact with children per year. This has been confirmed by the Family Mediation Service, which asserted that only 1.1% of families participate in a family session at the end of the mediation process. Direct consultations between children and mediators also occurred in less than 1% of cases. Similarly, in Australia it was found in a study that 52% of the children interviewed indicated that they had little or no say in the resolution process and would have liked the opportunity to have more. This is clearly a problem in need of resolution because, with the importance of the voice of the child being recognised through the UN Convention on the Rights of the Child and under Article 42A of the Irish Constitution, it is imperative that the child is given the opportunity to be heard during the mediation process.

There are a number of ways in which children can be considered during the mediation process. These include:

  1. Directly, where the mediator meets with the child;
  2. Indirectly, where the child is not physically present during the mediation sessions but attention is drawn by the mediator to how the marital breakdown will affect him/her; or
  3. Through family meetings which can be organised after the mediation process is finished and an amicable agreement has been reached between the parties.

Having the voice of the child heard in the mediation process can have a number of benefits. In particular, as many experts in this area have realised, it provides children an opportunity to talk about how they are dealing with the separation or divorce, what the situation is like for them, any conflict they are experiencing as a result, what advice they want their parents to hear, and any ideas or opinions they could have regarding, perhaps access and visits with their parents that they feel would work for them. As well as this, their involvement can result in better outcomes of the mediation process, more follow-through and an improved understanding of the child’s feelings of the situation; along with the improvement of relationships between parents and their children. It may also increase a child’s self determination and confidence.

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