A Critical Examination of Child-Inclusive Mediation

The process of separation or divorce is a stressful time of uncertainty and unpredictability for children, which can put them at risk for a range of adverse outcomes (Campbell, 2008; Hart, 2009). During this critical stage of transition, communication between children and their parents tends to break down and can result in children not receiving adequate information about the dissolution of their family (Hart, 2009). Children are often left in a position of powerlessness where they are unable to advocate for their own needs and interests, and are not consulted about decisions that directly impact them (Hart, 2009).

In keeping with the United Nations Convention on the Rights of the Child (CRC), over the past decade there has been increasing recognition of the need to take children’s views into account on matters that directly impact them (Cashmore & Parkinson, 2008). These efforts have generated an interest in helping children voice their needs and perspectives in cases of parental separation or divorce through child-centered legal practices, such as child-inclusive (CI) mediation. This paper examines CI mediation as a promising approach to including children’s views in the post-separation decision-making process, while considering both the strengths and limitations of this method. The role of social workers as child consultants will also be discussed, with a focus on the challenges they may encounter and how best to address these barriers through practice skills.

Defining Child-Inclusive Mediation

CI mediation is a process that seeks to refocus the parental separation or divorce process on the best interests of the child by including their voice in decision-making about post-separation arrangements (Moloney & McIntosh, 2004). Differing from child-focused (CF) mediation, which encourages parents to consider the needs of their children in their absence, CI mediation involves direct consultation with each child to better understand their experiences and perspectives (Moloney & McIntosh, 2004). The objective of CI mediation is not to put children in a position of making choices; rather, it is aimed at exploring more deeply their views of their current living and visiting arrangement, the conflict between parents, and their hopes for the future (Bell, Cashmore, Parkinson, & Single, 2013). Hewlett (2007) explains that through CI mediation, parents are also supported in better understanding the impacts of separating on their children and are encouraged to reach a resolution that is more aligned with the child’s needs.

There are different models of CI mediation, which include inviting the child to participate directly in the mediation process by sharing their views with the mediator and their parents, or alternatively, having the child meet with another professional (e.g. social worker) independently, who may then share the child’s perspectives with the mediator and parents (Birnbaum & Bala, 2017). This feedback may be offered verbally, or alternatively, in a report form that summarizes the child’s views and preferences (Birnbaum & Bala, 2017). In Canada, the report method is referred to as “Views of the Child Reports” (VCRs) and has been increasingly used across the country as relatively low-cost and efficient alternative (Birnbaum, 2017). For the purposes of this paper, I will be focusing on the latter approach of a social worker (as child consultant) meeting with the child separately and then providing feedback to the parties involved.

Research & Theoretical Foundations

The movement towards CI mediation has grown substantially over the last decade and is backed by a large evidence base that highlights its many benefits (Bell et al., 2015; Birnbaum & Bala, 2017). It is now widely recognized that compared to children from intact families, children from separated homes have an increased risk of experiencing psychological and behavioural problems, as well as academic and social difficulties, which can persist into adulthood (Amato, 2001; Holtzworth-Munroe et al., 2010). Studies suggest that including children in decision-making can help buffer against these risk factors by raising parents’ awareness of the impacts of their separation and conflict on their children, which can promote greater parental cooperation and the resolution of disputes between them (Bell et al., 2013). CI processes have also been found to help parents be more emotionally available and make more developmentally appropriate arrangements for their children (Ballard et al., 2013). Additionally, research suggests that involving children in mediation can have long-term positive effects on the relationship between children and non-primary care-giving parents, while also helping them to better adapt to new family arrangements (McIntosh et al., 2008).

CI mediation is informed by rights-based and empowerment theoretical models, which are based on the belief that young people have inherent strengths and rights “that should be acknowledged and capitalized on to their benefit” (Birnbaum, 2009, p. 7). The United Nations (UN) Convention on the Rights of the Child (CRC) is the most widely sanctioned and internationally accepted statement of children’s rights standards (Lundy & McEvoy, 2009). Included in the CRC is Article 12, “respect for the views of the child”, which recognizes the right of children to voice their opinions about issues that affect them and for those views to be taken into account in decision-making (Bala & Houston, 2015).

The CRC closely aligns with the core principles of empowerment theory, which views children as “social actors” who should be allowed to participate in decision-making processes (Birnbaum, 2009). More specifically, an empowerment framework aims to reduce the powerlessness children experience as a result of their social position by giving them the information and tools needed to make informed decisions about matters that affect them (Lundy & McEvoy, 2009). In the context of mediation, an empowerment approach suggests that children become empowered and benefit most when they are provided with age-appropriate information that will help them better understand their current situation as well as future plans that will affect them (Sanchez & Kibler-Sanchez, 2004).

Despite the large body of research outlining the many benefits of CI mediation, a number of compelling arguments have been made against including children in mediation processes (Birnbaum, 2009). From a child’s rights point of view, scholars have argued that a tension exists between balancing the vulnerability of children and their need for protection from emotional harm on one hand, and protecting their rights as individuals on the other (Atwood, 2003; Birnbaum, 2009; Birnbaum & Saini, 2012). This position raises important concerns about at what age and developmental-stage children should be able to participate in mediation, as well as under what circumstances. Existing research suggests that are certain situations in which CI mediation would not benefit the child (McIntosh, 2007). These include situations where the conflict between parents is extremely high or they are so overwhelmed that they cannot adequately make use of the feedback given to them (Birnbaum, 2009). The presence of significant mental health concerns has also been found to impact the parent’s ability to work together and act in their child’s best interest (Birnbaum, 2009; McIntosh, 2007).

This position is closely related to another prevailing argument that has been raised by mediators themselves, which is that CI mediation may not always serve children’s best interests (Birnbaum, 2009). Smithson, Barlow, Hunter, and Ewing (2015) explain that the needs and wishes of children are often invoked by adults in mediation, however are used strategically to support their own positions. Moreover, children may be manipulated by one parent or both to take sides during the mediation process, which can result in feelings of confusion, anxiety, and conflicts of loyalty (Birnbaum, 2009).

It has also been argued that giving children the opportunity to participate in custody decisions can create risks for their emotional well-being and burden them with an inappropriate amount of power (Warshak, 2003). These opinions stem from the belief that children do not always know what is best for them; especially during periods of heightened family conflict when children’s emotions and attitudes are often in flux (Warshak, 2003). For example, studies have shown that children may align themselves with the parent that they fear the most or is perceived as needing the most support (Warshak, 2003). Warshak (2003) explains that although children in these positions may be outspoken about their preferences, their wishes may not be in their genuine best interest. Even in situations when children are involved, concerns have been raised about what emotional difficulties may transpire if the child’s preferences are not reflected in mediation outcomes (Birnbaum & Saini, 2012). Birnbaum (2009) explains that this can lead to children feeling angry, dismissed, and hurt that they were not listened to.

The Challenges Social Workers Face

Social workers who assume the position of child consultant in CI mediation processes confront a host of challenges that can impact their overall approach and success in working with certain children and families. Families possess distinct blends and patterns of power that can manifest during mediation “as an identifiable power imbalance between parties” (Flynn, 2005, p. 408). While the intended purpose of CI mediation is to address this imbalance and promote the position of the child, existing power dynamics within the family can serve to counter these efforts and negatively influence the child’s ability to express their views. While neutrality is fundamental to the mediation process (Flynn, 2005), social workers working with children in these situations may feel conflicted about remaining impartial given their professional and personal ethics. In reference to VCRs, Birnbaum and Bala (2017) explain that while child interviewers can evaluate and comment on the strength and consistency of the child’s views, it is more common that this does not occur. This discrepancy of input can pose a challenge for mediators, who must use their clinical judgement to decide what to include in the feedback provided when evaluating the child’s views. For example, if the social worker notices that the child is experiencing pressure by one parent (or both) when voicing their perspective, they must choose whether or not they want to provide suggestions about the weight to be given to those views. Birnbaum and Saini (2012) explain that this points to the “dual task of professionals needing to balance the rights of children to be heard while supporting them so they are not in the middle of their parents’ disputes”.

This challenge is closely related to another difficulty mediators face in CI mediation, which is how best to address issues of power, privilege, and difference when working with children. Child consultants must be aware of their own positionality and how uneven power dynamics between them and the child may impact the outcome of sessions. Fern (2014) explains that these power inequities can be further exacerbated when multiple dimensions of oppression are present; for example, if a white mediator is working with a child who is also racialized. These intersecting identity factors can negatively impact the therapeutic relationship if not meaningfully addressed and accounted for in one’s practice approach (McLeod (2007). Indeed, research has shown that the views of non-English speaking children or children with disabilities are more often overlooked when compared to their counterparts (McLeod, 2007). Given that the mediator-child relationship is inherently hierarchal, it is critical that mediators remain attuned to these factors not to replicate processes of oppression and marginalization that children may face in their daily lives (Albright, Hurt, & Hussain, 2017).

Practice Skills Needed for Child-Inclusive Mediation

In response to the challenges and issues outlined, there are specific practice skills that social workers can adopt when working children in CI mediation. One of the most important skills required is the ability to develop a trusting therapeutic alliance. Studies examining children’s experiences working with professionals in legal processes have found that perceived neutrality, friendliness, trustworthiness, and active listening are important skills that help children to feel heard and understood by their representation (Birnbaum, Bala, & Cyr, 2011). The ability to convey emotion and interact empathetically are also identified as key factors that allow children to connect more deeply and openly with mediators (Fern, 2014). While it is important to remain attuned to possible external influences (i.e. parental desires), mediators should continue to validate and convey acceptance of the child’s perspective as it is shared (Campbell, 2008). Essentially, social workers must be able to engage authentically with children to promote trust and create safety, which in turn, will allow the child to express their views openly and without fear of judgement (Birnbaum & Saini, 2012).

Mediators working in this capacity must also be able to identify the specific needs of each child and provide them with necessary information in a developmentally and age-appropriate way. This involves explaining the mediation process and conditions of confidentiality in a transparent and comprehensible manner. Being able to “explain things well” has been identified in the literature as an important quality children value, which impacts how helpful they perceive the clinician to be (Fern, 2014, p. 1112). This may require the mediator to use creativity or play-based approaches, such as incorporating drawing into the session, to better understand the child’s perspective. Other strategies that can be used to promote effective communication with children include slowing down the speed of sessions, using visual aids, and giving sufficient time for cognitive and emotional processing (Bristow & Roberts, n.d.). Social workers must also be able to help children put their feelings and experiences into words, while engaging in constant feedback to ensure that their interpretation is correct. Asking open-ended questions, such as “what do you worry about most?”, can support children in this process and identify common themes in their narrative.

Given the high rates of psychological and emotional difficulties children undergoing parental separation or divorce experience, mediators must also possess strong clinical skills and experience in supporting children with mental health or behavioural concerns. This can involve having specific knowledge of grounding techniques, such as practicing mindfulness, to help the child practice emotional regulation when discussing difficult content. Having appropriate relaxation or stress-reducing toys available is another strategy a mediator can use in practice to address externalizing behaviours that may occur in session.

Child-inclusive mediation, as critically examined throughout this paper, is a powerful intervention that has the potential to change the process of separation or divorce for families and promote more positive child outcomes. While not well-suited for all situations, adopting a CI approach can help parents refocus their separation on the needs of their children when making decisions that will significantly impact them (Birnbaum, 2009). Providing children with an opportunity to voice their concerns and views more formally can also be a source of empowerment for them, while simultaneously giving them a greater sense of control over their lives and increasing their ability to cope (McIntosh, 2000). In deciding to facilitate CI mediation, social workers must remain aware of the various dynamics at play and be prepared to intervene appropriately to act in the best interests of the child throughout the process.