My clients and I open the door to the creative problem solver within them, their ex and their ex's lawyer...
Why use Child Inclusive Mediation? Can Child Inclusive Mediation be used in Lockdown?
Welcome to this blog with me, Jo O’Sullivan a divorce lawyer and mediator and Louisa Whitney. I am not a Child Inclusive Mediator but I am a great believer in it. I always mention Child Inclusive Mediation to my clients in whatever role I am in. Louisa is training to be a Child Inclusive Mediator is a family mediator, a PPC (Professional Practising Consultant who supervises mediators) and a non-practising solicitor. So here goes:
Jo: United Nations Convention on the Rights of the Child... ’was agreed by governments (including ours) around the world in 1989. It says what they must do so that children grow as healthy as possible, can learn at school, receive protection, have their views listened to and are treated fairly. All the rights in the Convention apply to every child, no matter who they are or where they come from.’ (Pocket Book of Children’s Rights, UNICEF). Article 12 – ‘Every child has the right to have a say in all matters affecting them, and to have their views taken seriously’.
Could you explain what Child Inclusive meditation is and how it fits with Article 12?
Louisa: This is a very topical question to ask me because I am in the middle of my training although it has been a little interrupted by coronavirus. Child Inclusive Mediation is where children can talk to the family mediator who is meeting with their parents, and express their views about what's important to them as part of their parents' separation. I think there was a study or survey in 2015 and something like 48% of children questioned said that the changes that came out of their parents' divorce weren't properly explained to them. So, the idea of Child Inclusive Mediation is that it gives children a voice. They can say things to the mediator (who is an impartial and professional person) that they maybe feel uncomfortable saying to their parents. This could be because they don't want to upset them, or it could be because they haven't found the right words, or haven't been given the opportunity. It doesn't give the children any decision making responsibility (that will of course rest with their parents) but it enables them to have their voices heard about what's important to them, what they're worrying about. Sometimes children have really creative ideas for helping their parents. Crucially the process is confidential and the mediator only feeds back what the children want them to and the mediator will use the children's words and not add to them or interpret them so it really is the children's views that are heard. How do you think this benefits parents and children alike? What is the potential value of doing this?
Jo - There is nothing for parents to fear. Mostly, children are very supportive and loyal to their parents. It is usually a good news story. The parents, who are often worried about the effect of their separation has had on the children, are pleased to find out that that their children are so resilient. The children, overwhelmingly, want their parents to be happy. The other aspect is that sometimes the child(ren) will say surprising things. The parents can then either listen to what they say (if the child has been clear) or discuss what they might mean and put something into practice. The value is that the children get a voice. The most frustrating thing for children is that they are not part of things. I am a huge fan of a specially trained mediator speaking or rather listening to the children. My only worry is whether or not this could be effectively done on Zoom (online video). What do you think Louisa?
Louisa: I agree with you wholeheartedly about it being a good news story and that it is such a valuable process. It taking place online is a conundrum for many practitioners. I’ve had this discussion with a few mediators and I know the FMA (Family Mediator’s Association)’s advice is that they don’t recommend doing it. My take is that the main issue is safeguarding – safeguarding the clients, their children and the process and that is always down to a mediator’s judgement call and this situation is no different. Part of setting up the child inclusive mediation process is explaining to parents the way that it will work and checking that they won’t coach their children, or ask them about it afterwards. If a mediator has concerns about this then these should be raised with parents. Clearly it could be easier for a parent to interfere in the process if this takes place online and if the children live with one parent and are talking to the mediator in that parent’s house. But if both parents are on board with the value of the process then they’re less likely to do anything to jeopardise it. If the mediator continues to have concerns then they might make a judgement call that this is not appropriate right now (i.e. during the pandemic) or at all. There’s also some practical issues about how children access the technology and whether that might require an adult and that would need thinking through, because the child or children meet with the mediator on their own – away from the earshot of parents. But many children are becoming very technologically proficient accessing online learning whilst their parents are working at the current time. It also depends on how the children feel about it. Some may feel they wouldn’t want to talk to the mediator online, other children may quite like the idea of being able to talk to the mediator from the safety and comfort of their own home. Some teenagers may feel more comfortable talking into a phone, tablet or screen than in person. So my take would be that you need to take each case on its own situation and how the parents and children feel and make a judgement call on that. When weighing it up it can be helpful to think about weighing up the potential downsides of doing it versus the downsides of not doing it (as well as the upsides but they are often easier to appraise. If everyone (parents, children and the mediator) is on board with the idea of doing it then it’s a question of safely working out the appropriate logistics. Do you have any more thoughts on this, Jo? I know it is a difficult area and it’s something that understandably causes concern amongst mediators, parents and children alike!
Jo: I do feel a bit squeamish about online Child Inclusive Mediation but as you say, if all are willing and there’s no fear that the child(ren) will be under any duress or coached then why not?!
Could you explain how the mediator gets the child to speak for themselves, is it through play, story telling or how?
Louisa: It’s very much age dependant. I think it helps to have an array of different pens, paper, toys and items a child can ‘fiddle’ with. It’s also useful to get some idea of what the children you’re going to talk to are interested in so you have an ‘ice breaker’. This can be a nerve wracking experience meeting a mediator so it helps to put the children you’re talking to at their ease straight away and give them activities to focus on to make it a less intense experience. A younger child may enjoy drawing a picture or making a model from Plasticine whilst talking, but a teenager may just prefer to have something they can focus on other than the mediator (fidget spinner, Rubik’s cube) so they can talk without it feeling too intense. That’s not to say I would stop a teenager drawing a picture if they wanted to but I’d be conscious they may see it as an activity for a younger child.
What would you say to children or parents who were nervous about coming to see the mediator, Jo?
I would encourage them to give it a go. The law in relation to divorce and separation places the welfare of the children first and foremost. How can that be the case if the child isn’t involved whatsoever in what’s going on? It’s an uncomfortable internal contradiction. My view is that children will be a lot happier and reconciled to their parents’ breakup if they are involved in this small way. Even parents who use the collaborative process or the traditional letter writing process ought to be encouraged to use it. Child Inclusive Mediation gives the children a voice and just as importantly, an opportunity for the parents to listen in a structured and safe way.
So, if you are a client or a professional helping clients divorce or separate, please consider using Child Inclusive Mediation.
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