The Voice of the Child in Separation/Divorce Mediation and Other Alternative Dispute Resolution Processes: A Literature Review

1.0 INTRODUCTION

When parents separate or divorce, decisions have to be made that will have significant impacts on their children. Finding ways to include children's participation in those decisions is often referred to as promoting "the voice of the child".

Promoting children's participation in decision-making in the context of family law is a relatively recent development. Historically, children were viewed as objects of concern, lacking the capacity to participate in family law matters and in need of protection from parental conflict (Graham and Fitzgerald, 2005; Morrow and Richards, 1996; Roche, 1999; Taylor, Smith and Tapp, 1999) or from being put in the middle of their parents' disputes (Emery, 2003; Warshak, 2003). It was assumed that, if children could be insulated from post-separation decision-making, they would be sheltered from the turmoil of their parents' relationship breakdown (Smart, 2002). A related assumption was that parents know what is in their child's best interests (O'Quigley, 2000; Timms, 2003), and, hence, that children's views are adequately represented by adults.

The continuing high numbers of children experiencing parental separation and divorce have generated an interest in helping children voice their needs and wishes. As the importance of children's right to be heard and for their wishes and feelings to be considered have gained prominence in child theory (Aries, 1962; Campbell, 2004; James, Jenks and Prout, 1998; Kaganas and Diduck, 2004; Lansdown, 2005; Prout and James, 1990; Smart, Neale and Wade, 2001), as well as in the social science literature and research regarding children's involvement during times of family breakdown more specifically, perspectives on including children in decisions around their parents' separation and divorce have been shifting (Kelly, 2002, 2003a, 2003b; McIntosh, 2000; Morrow, 1998; Neal, 2002; O'Quigley, 2000; Pike and Murphy, 2006; Smart, 2002, 2004; Smart and Neale, 2000; Smith, Taylor and Tapp, 2003; Strategic Partners, 1998; Tisdale, Baker, Marshall and Cleland, 2002; Schoffer, 2005; Thomas and O'Kane, 1998; Wade and Smart, 2002; Williams, 2006; Williams and Helland, 2007).

Increasingly, children are understood as being rights-bearing individuals, rather than objects of concern or subjects of a decision (Eekelaar, 1992; Lansdown, 2001). Moreover, the social science literature and research have increasingly demonstrated that not listening to children may cause more harm than good (Kelly, 2002; Lansdown, 2001; Pryor and Rogers, 2001; Smith, Gollop and Taylor, 2000), and that meaningful participation of young people in child custody and access disputes can protect them during a time when family breakdown puts them at risk (Amato, 2001; Butler, Scanlon, Robinson, Douglas and Murch, 2002; Cashmore, 2003).

Children's participation in the separation and/or divorce process has also been enshrined since Canada ratified the United Nations Convention on the Rights of the Child in 1991. The Convention has been a significant underlying factor in the growing concern for, and commitment to, allowing children more say in the legal decisions that affect their lives. Article 12 of the Convention states that:

Article 3 requires states to act in the best interests of children:

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.[2]

In 1998, several years after Canada ratified the Convention, the Special Joint Committee on Child Custody and Access recommended that children in Canada have the opportunity to, "be heard when parenting decisions affecting them are being made" and to, "express their views about the separation or divorce to skilled professionals whose duty it would be to make those views known to any judge, assessor, or mediator making or facilitating a shared parenting determination".[3]

These shifts in thinking have all been occurring within the context of a broader global movement towards fostering children and youth's participation in both political and personal issues. Increasingly, young people are themselves expressing that they want to share their "voice" in the legal processes that fundamentally affect their lives and in post-separation arrangements (Cashmore and Parkinson, 2008; Freeman, 1997; O'Quigley, 2000; Raitt, 2007; Smart and Neale, 2000; Parkinson and Cashmore, 2007; Parkinson, Cashmore and Single, 2006). The existing research on children's desire to be included suggests that they want to be kept informed, and want their needs and interests heard. Adolescents, in particular, are much more likely to want to be present when major decisions affecting them are made, and to want to express explicit preferences about these decisions (Neale, 2002; O'Connor, 2004).

Thomas and O'Kane (1998) assert that there are now clear demands in public policy to give children a voice in the decisions which affect their lives. Smart, Wade and Neale (1999) argue that children have much to provide to the discussion about divorce and family change such as what it is like, how to cope and what it means to them. The authors suggest that rather than excluding children, "we may have a lot to learn about divorce from children if we suspend the presumption that they are damaged goods in need of protection" (1999: p. 366).

Yet certain tensions remain with respect to allowing children to participate in separation and/or divorce-related matters. These tensions are created by attempts to balance the vulnerability of children, given their age and development level, with their rights as individuals. There is also debate about how the goal of including children ought to be achieved—in what circumstances and in what ways children should be included. There are various perspectives on this matter. Several different mechanisms for encouraging the voice of the child are currently used in Canada, such as views of the child reports, custody and access assessments, child legal representation, parenting coordination, and the use of child specialist coordinators. Various models are also employed internationally.

The available literature on voice of the child approaches has, however, tended to focus mainly on approaches occurring under the auspices of litigation. Although most post-separation decisions are made outside of courtrooms, comparatively little has been written about approaches to integrating children's voices into all other aspects of the family justice system—how or whether children are involved at the front end of the family justice system, at the stages of informal discussions or negotiations within the family, or early consensual dispute resolution.

There is particularly a dearth of published research with respect to children's involvement in mediation following parental separation or divorce (Mantle, 2001b; Saposnek, 2004). Mediation, or assisted negotiation, is an alternative dispute resolution process for working out disagreements with the assistance of a trained, impartial and neutral third party. Recent research has produced little systematic information about how children are currently being included in mediation or other alternative dispute resolution processes, the outcomes of child-inclusive mediation and alternative dispute resolution processes for parents, children and the broader family justice system, or any lessons learned based on the work that has been done to date.

1.1 Objectives

As part of a broader discussion designed to address the participation of children in separation and/or divorce processes, this review focuses on a relatively new and controversial aspect of the family justice system, namely child-inclusive separation, divorce and custody mediation and other child-inclusive separation, divorce and custody alternative dispute resolution approaches. Specifically, the focus is on exploring initiatives that help give children a voice in the decisions made about post-separation family arrangements, as opposed to therapeutic or educational programs that help children adjust socially, emotionally or psychologically to the separation process and/or subsequent family arrangements. The scope of this review excludes young people's involvement in child protection mediation and will instead be limited to child-inclusive mediation and other child-inclusive ADR processes used in the context of separation and/or divorce.

The purpose of this review is two-fold. First, this paper provides a discussion of the issues raised by the participation of children in separation, divorce and custody mediation and other alternative dispute resolution processes (hereafter referred to as ADR). This includes an overview of different theoretical views and lessons learned about including children in these processes. It also identifies unanswered research questions that warrant further exploration.

Second, this paper provides a discussion of the different methodologies that are being employed—both nationally and internationally—to give children a voice in the context of separation, divorce and custody mediation and other ADR processes.

1.2 Methodology

A review of the literature consisted of searches in scholarly periodical university indexes including, but not limited to:

Searches for secondary articles related to the voice of the child, children's wishes, and separation and/or divorce were also performed in legal search engines including, but not limited to:

Searches for fugitive articles such as unpublished manuscripts, conference proceedings, topical bibliographies, and curricula vitae lists were also completed using the Internet search engines:

All electronic searches included, but were not limited to, the following search terms in various combinations: children's ages and stages; children's rights; children's wishes; the voice of the child; children's voices in separation and divorce; child-inclusive mediation; alternative dispute resolution; child custody assessments; child legal representation; child custody; child access; child participation; child specialist; family court processes; judicial interviews; child development; development; divorce; separation; custody and access; child support programs; parenting coordination; and children's resources.

In order to gain a more fulsome picture of the issues raised by including children in separation and divorce-related mediation and ADR, and in order to learn more about the various approaches to doing so, both in Canada and internationally, selected family justice practitioners (e.g., family mediators, child specialists involved in collaborative family law practice and collaborative family lawyers) were contacted by telephone and interviewed about the methodologies presently being used to incorporate the voice of the child. Selected senior administrators from court-connected facilities and policy advisors in the justice system were also contacted by telephone in order to gain a greater awareness of the strengths and limitations of incorporating the voice of the child into mediation and other ADR processes. Finally, selected key informant interviews were conducted with individuals who provide legal representation to children before the court in separation and divorce related matters from Alberta, Ontario's Office of the Children's Lawyer, and Quebec[4]. All interviews incorporated standardized questions[5] tailored to each type of stakeholder group in seeking information about the various methods presently employed. Specific attention was given to identifying those methods that were the most and least successful in achieving objectives. Attention was also paid to understanding what is required to incorporate the voice of the child in mediation and other ADR processes.

1.3 Structure of the Paper

The paper is organized into five main sections. Following this introductory section,

1.4 Limitations

There are several important limitations to the information presented in this review that should be acknowledged. First, it was not the intention of this literature review to provide a complete listing of all the practice initiatives related to child-inclusive mediation and other ADR processes across Canada and internationally. Rather, this literature review is solely intended to provide a point of discussion of the issues raised by child-inclusive mediation and other ADR processes in family law proceedings related to separation and divorce. The review excludes discussion of young people's involvement in child protection mediation.[6]

Second, the key informant interviews were limited and selectively chosen from expert practitioners in law and mental health, research, and policy in Canada and internationally who have demonstrated practice and research expertise in children's participation with child-inclusive mediation and other ADR processes.[7] Therefore, the information obtained is not representative of all the professionals in this specialized area of family law.

The interviews were particularly important as a means of gathering additional information given that, other than the empirical research in Australia and qualitative research in New Zealand on including children in mediation, there remains a paucity of research literature in this area beyond anecdotal information. There are a number of excellent reviews and summaries that provide information about different child-inclusive mediation and ADR processes as well as on children's resources and programs that focus on separation and/or divorce (Ministry of Attorney General, British Columbia, 2007; O'Connor, 2004; Williams and Helland, 2007). However, there is no comprehensive review that integrates both the empirical research and social science literature with the practice experience of mental health clinicians, law and policy experts.

Third, unlike other research projects which outline a rigorous methodology and design regarding the analysis of telephone interviews with key informants (i.e., audio-taped and thematic analysis by different qualitative computer-generated programs), a less formal structured telephone interview was conducted with the participants involved in this report. However, themes are distilled from the different key informants that highlight practice, research, and policy planning options.

Finally, due to time constraints and issues of consent and confidentiality, young people were not interviewed about their experiences and participation in mediation and other ADR processes.

1.5 Theoretical Framework

From a theoretical view, the social science and research literature is presented in this review through the lens of empowerment and/or enhancement theory, which is premised on an understanding that children and youths have strengths and expertise that should be acknowledged and capitalized on to their benefit. Moreover, this framework is based on the belief that children and youths can change their circumstances, and that they can become more effective ‘social actors’ provided that they are kept informed and are allowed to participate in the family law decisions that affect them (Biddulph, Biddulph and Biddulph, 2003; Birnbaum, 2007).