Mediation – a child’s voice is heard? - Boodle Hatfield

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23 Jan 2024

Mediation – a child’s voice is heard?

4 min read

This week marks Family Mediation Week (22 – 26 January), an annual calendar event designed to raise awareness of family mediation and the benefits it can bring to separating couples and families. 

There are various options available to separated parents who find themselves at odds with one another when it comes to the arrangements for their children. Such disputes could range from how much time the children should spend with each parent to what school they should attend. Whilst, sadly, there are some cases which will inevitably find their way into the Court process by their nature, the vast majority can settled outside of Court, facilitated by mediation. This is undoubtedly less financially and emotionally expensive for the entire family.

Mediation can offer a confidential, neutral and guided forum where both parents can work towards narrowing the issues they have between them. A mediator's role is not to take sides; is not to give advice; and is not to tell the parties what the outcome ought to be. Rather, the mediator's job is to guide the individuals through their discussions. The process gives the parties ownership to try to reach an outcome which works for their individual circumstances in a non-confrontational way. Ultimately, it is usually always preferable for parties to agree matters themselves when it comes to their children rather that have an outcome imposed on them by a third party (judge) which could be in place for years to come. 

It is possible for mediation to also consider the child’s perspective to help inform the discussions in a collaborative way. 

What is Child Inclusive Mediation

Child Inclusive Mediation offers children the opportunity to have their voice heard; it helps to inform and focus parents’ minds on a child-focused outcome (which can sometimes be lost in translation as part of tense disputes with ex-partners). If it is considered appropriate for your child, the mediator can meet with them separately to hear their worries and concerns and communicate their wishes and feelings regarding the dispute in question. This has the benefit of removing the immediate pressure which inevitably comes with a child speaking to one parent or another; understandably, children can feel torn and worried about upsetting either parent in doing so. 

The meeting itself is confidential which means that the mediator can discuss with the children what views are to be passed on to the parents and how they might be communicated. 

Child Inclusive Mediation is by no means a requirement but many families have found this process beneficial in providing the child with ownership and recognition of their voice, which can be especially empowering for older children. 

But is it normal for professionals to meet with your children as part of a dispute? 

Whilst some parents may be daunted by the prospect of their children speaking to professionals in Child Inclusive Mediation, it is important to remember that your children would usually be required to meet with a social worker or family case worker if the dispute were to proceed to arbitration or to Court in any event. 

The ascertainable wishes and feelings of the children is one of the key elements which an arbitrator or judge would need to consider when deliberating what is best for them. For example, if you were to attend arbitration (a form of out of course dispute resolution which is confidential and binding – also thought of as “private court”), you would usually appoint an Independent Social Worker to complete a welfare analysis. Alternatively, if you are in the court process, it may be a CAFCASS (Child and Family Court Advisory and Support Service) case worker who does so. In either case, it is common for your children to meet and share their views so that the arbitrator or judge can consider these in the context of the case worker’s analysis of what is best for the child. 

It is important to note that a child’s view is not determinative. The weight that is placed on such views will depend on a number of factors such as the child’s age and maturity. It is also important to be aware that case workers and judges alike are very aware that a child’s views are not always authentically their own and, in fact, sometimes meeting the child can in itself reveal the extent of any concerning influence or alienation by one parent. In cases such as these, it would be less likely that mediation would be an appropriate forum – although not impossible. 

Not sure if it is for you? 

Before you are able to make an application to Court regarding the arrangements for your child, you are first obliged to attend a “Mediation Information Assessment Meeting” which is designed to provide you with a greater understanding as to whether mediation might be appropriate for you. This can sometimes provide a helpful nudge in the right direction. For some parents, the Court process is somewhat inevitable, usually because one parent may fail to take a child-centred approach or consider any level of compromise. However, for many, mediation can provide a faster, cheaper and more collaborative form of dispute resolution which has flexibility to put the children’s voice at the heart of the discussion. 

If you have any questions regarding mediation, do not hesitate to get in touch.

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