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

2.0 REVIEW OF THE LITERATURE REGARDING THE DIFFERENT VIEWS OF CHILDREN'S PARTICIPATION DURING PARENTAL SEPARATION, DIVORCE, CHILD CUSTODY MEDIATION AND OTHER ADR PROCESSES

This Section explores the debate from a legal, social science and research perspective between those who argue in favour of the inclusion of children the decision-making process during times of separation and/or divorce, and those who argue against it. Neale (2002) asserts that, "underlying these arguments is a subterranean debate about which group of adults (mothers, fathers, legal, welfare or therapeutic professionals) are best equipped to take charge of children's welfare needs, a debate from which children themselves have been largely excluded".[8]

2.1 Those who say that we should include children and why

Those who are in favour of listening to children during times of parental separation and/or divorce cite a number of rights-based and interest-based reasons for doing so. First and foremost, children have a legal right to be heard and listened to according to the United Nations Convention on the Rights of the Child.[9] Children's rights theorists see children not as property, but as persons who can and should be participants in the decision-making processes that affect their lives (Atwood, 2003; Brennan, 2002; Elrod, 2007; Lansdown, 2001, 2005; Woodhouse, 2000). The Convention on children's rights implicitly incorporates a recognition that children should not only be respected and heard, but also ensures that children have access to the civil, economic, political, and social rights that are accorded to everyone.

Second, those who are in favour of including children report that children generally want to be active participants in the decisions that affect their lives post-separation and/or divorce (Cashmore and Parkinson, 2007; 2008; O'Quigley, 2000; Parkinson and Cashmore, 2007; Parkinson, Cashmore and Single, 2006; Neale, 2002; Smith and Gollop, 2001). However, this does not mean that they wish to make the decisions or take sides with either of their parents. Children understand the difference between providing input into the decision-making process and making the final decision (Kelly, 2002; Morrow, 1999; O'Quigley, 2000; Neale and Smart, 2001).[10]

More importantly, children want to be kept informed, want access to information about the separation and/or divorce process and want their needs and interests heard during times of parental separation and/or divorce (Birnbaum, 2007; Marchant and Kirby, 2004; Neale, 2002). Smith (2007) argues that providing children with access to information and allowing them to participate in the separation and/or divorce process translates into more respectful listening of children's wishes, needs, and interests and takes them into account. Taylor, Smith and Nairn (2001) report that children themselves rate their participation rights as important when it comes to issues of the family as well as issues relating to legal and social welfare systems.

Third, children's participation is inextricably linked with social inclusion from a broader policy perspective. That is, more effective policies, services and programs are developed by including children's participation in their design, planning, delivery and implementation (Lansdown, 2005; Ministry of Social Development, 2003). James and Gilbert (2000) argue that unless children's views are incorporated into the policy development that impacts directly on them, decision-makers do not have the benefit of hearing the children's perspectives on the problem, suggestions, and/or thoughts about what should happen about the problem. The same argument can be made with respect to children's participation in the decision-making process during family breakdown. Smart, Neale and Wade (2001) suggest that family policy issues must include children's viewpoints if children are to be treated ethically and given the respect they deserve.

Fourth, some have also cited the social science and research literature that demonstrates that children's participation in a number of decisions, including their experience of parental separation (Cashmore and Parkinson, 2008; Butler et al., 2002; Dunn and Deater-Deckard, 2001; May and Smart, 2004; Neale, 2002; Smith et al., 2003; Smart, 2002), correlates positively with their ability to adapt to a newly reconfigured family (Butler, Scanlon, Robinson, Douglas and Murch, 2003) as well as to their ability to regain mastery and control over what is often a confusing time for them post-separation and/or divorce (Brown, 1996; Butler et al., 2002; Saposnek, 1998).

Fifth, still others have argued for children's inclusion as being important because it provides the most direct enunciation of the needs of children. Focusing on the needs of children early in the process of parental litigation can reduce both the intensity and duration of conflict (McIntosh, 2003) as well as enhancing conciliation between parents to communicate more effectively on behalf of their children (Goldson, 2006). Gray (2002) has also suggested that children's participation in decision-making can facilitate children being clear about their own wants and needs which can translate into enhancing their advocacy skills regarding communication and negotiation with their family.

Sixth, others have also argued that meaningful participation can be a protective factor during times of parental separation and/or divorce (Brown, 1996; Pryor and Emery, 2004; Pryor and Rogers, 2001) as it provides children with a sense of responsibility and improved parent-child relationships (Brown, 1996; Goldson, 2006; Sanchez and Kibler-Sanchez, 2004) through their role in the decision-making process (Cashmore and Parkinson, 2007, 2008). Including the voice of the child can also enhance their sense of self-esteem and control over their fate, thereby enhancing their resiliency (Kelly, 2002, Marchant and Kirby, 2004; Pryor and Emery, 2004; Williams, 2006).

Finally, while studies in this area have been limited to date, research-based programs in Australia and New Zealand demonstrate the potential benefits to separated families of including children's experience and their voice in a therapeutic mediation process (Goldson, 2006; McIntosh, 2000, 2003, 2005, 2006, 2007; McIntosh and Deacon-Wood, 2003; McIntosh and Long, 2005, 2006, 2007; McIntosh, Long and Moloney, 2004; McIntosh, Wells and Long, 2007; McIntosh, Wells, Smyth and Long, 2008; Moloney, 2005, 2006; Moloney and McIntosh, 2004).[11] For example, McIntosh (2007), along with her research colleagues in Australia, has evaluated an evidence-based practice model of child-inclusive mediation. They report on outcomes that were common to both groups, specific to the child-inclusive intervention, and the differences in outcomes. The study compared outcomes over 12 months for 275 separated parents (142 families) and their children (a total of 364 children, with 193 between ages five to 16 years) in two different forms of mediation interventions.

The first type of intervention was a child-focused intervention, where the mediator assists the parents in parenting arrangements for their children based on their developmental needs. The second type was a child-inclusive intervention, which is the same as a child-focused intervention but also includes a direct brief assessment of children's experiences of the separation and their relationships with each parent. In this second type of intervention, feedback from the children's session is brought back to the parents' mediation session by a child specialist in order to assist parents to better understand their children's needs.

Information was collected at the beginning of both interventions as well as at 3 months and 12 months post intervention to explore what differences, if any, were present between the two types of interventions. Specifically, the outcomes explored included:

In both groups, there were high rates of poor parental communication, parental conflict, and children who were experiencing significant psychological distress at the outset of intervention. However, one year post intervention/mediation, there was a significant and enduring reduction in conflict for both groups. The majority of parents in both groups reported that they had improved or resolved the initial dispute that had brought them to mediation in the first place. The children in both groups, across all ages, perceived less frequent and intense conflict between their parents and were less distressed in relation to their parents' conflict.

Of interest, certain findings were unique to the child-inclusive intervention that were not evident in the child-focused intervention; mainly the effects of child-inclusive intervention on fathers and children. One year post intervention demonstrated that there was lower conflict reported by fathers in relation to their former spouse, and a greater improvement in the parental alliance for fathers. As well, children reported that they experienced more closeness to their fathers and more emotional availability of their fathers; the children were more content with the parenting plan and less inclined to want to change it. Fathers were likewise more satisfied with the parenting plan despite less overnight contact than the child-focused fathers. Finally, there was a greater stability of care and contact over the year.

In New Zealand, Goldson (2006)[12] conducted a qualitative study that explored child-inclusive mediation with 17 families and 26 children between the ages of 6-18. The interview questions explored the lived experiences of the children and their parents related to their parenting plan arrangements one month after mediation. Unlike the previous study, the mediator who met with the parents also met individually with the children in this program. Feedback from the children's session was brought back to their parents. The children were aware of what was being discussed with their parents and were provided with an opportunity to decline information that they did not want shared with their parents. The parents and children were then brought together in a joint session to discuss the parenting plan and a subsequent session was held two weeks later to discuss how the implementation of the parenting plan was working as well as to examine outstanding concerns, if any.

The study's findings showed that the children uniformly reported that they liked having their voice heard and were more satisfied with the final parenting plan. The children expressed a strong desire to have an active role in the actual restructuring of their family relationships. The parents reported that there was a reduced level of conflict between them and that each experienced an overall higher satisfaction with the process. Both children and parents acknowledged that the children preferred to speak to a mediator who had previous contact with both of their parents simultaneously. Overall, the findings demonstrated that parental conflict was reduced and that conciliation and cooperation increased. Furthermore, in each family there was an increase in the parents' awareness of the impact of the conflict and the significance of working together on behalf of their children. As a result of having their voices heard and listened to by their parents, children reported feeling more relaxed and better able to adapt to their parents' separation.

The studies in Australia and New Zealand lend support to the social science literature on the reasons of why it is important to include children in the decision-making process. However, how they should be included is less clear. Additionally, differences exist between using the same mediator to interview children and having a separate child specialist interview the children. This latter issue will be explored more fully in examining child custody mediation. At the very least, the results of these studies demonstrate that children's participation can be beneficial to their emotional well-being and provide them with a voice in decisions that impact their lives. In addition, the findings confirm that further research initiatives that are grounded in evidence-based interventions are important to assist children and their families post separation and/or divorce to explorewhat is most helpful to children and how.

2.2 Those who say we should not include children and why

Just as there are strongly held viewpoints about including children in decision-making post separation and/or divorce, there are equally a number of compelling arguments against including children. First, from a rights point of view, academic scholars cite some cautions to be aware of when it comes to children's rights. Atwood (2003) argues that there are competing goals between protecting children from emotional harm on the one hand, and protecting litigants' due process rights, on the other, when it comes to ascertaining children's wishes. Guggenheim (2003) asserts that while there are important reasons to advance children as rights-holders, there are certain costs associated with rights—that is, rights are relational. If children have a right then someone else has a duty and children's legal rights are always in the hands of adults.

Second, concerns have been expressed by mediators themselves who suggest that children may be manipulated by one parent or the other to take sides during a disputed custody and access matter, thereby creating anxiety and loyalty conflicts for children (Brown, 1996; Emery, 2003; Garwood, 1990; Gentry, 1997; Saposnek, 2004). Others have expressed concerns that involving children could undermine parental authority and cause further negative intrusion into children's lives and family relationships (Brown, 1996; Emery, 2003; Lansky, Manley, Swift and Williams, 1995). Garrity and Baris (1994) argue that involving children can also lead to having them tell each parent what s/he wants to hear, which would be of little benefit to the child. Moreover, Warshak (2003) argues that presenting children's wishes without understanding the basis of those wishes can create more problems for children. In other words, children's wishes must be accompanied by an understanding of the context in which those wishes are being made. He also argues that delegating too much authority to children instead of helping them develop coping strategies during times of parental separation may burden them with too much power.

Third, qualitative findings from research reported by Goldson (2006), McIntosh (2000, 2007) and Garwood (1990) suggest that children would not benefit from being involved in child-inclusive mediation approaches in certain circumstances. These include, for example, when parents are feeling so overwhelmed that they cannot make use of the positive feedback given to them; where the conflict between the parents is characterized as high; and where parents have mental health issues that impede any positive working relationship. Kelly (2003) and Saposnek (2004) also conclude that not all children necessarily need or want to be heard. They suggest that unless there is a request from the child and/or their parent for the child to be interviewed, there is no reason to do so.

Another concern raised in advancing the argument against child participation is that once a child has been asked to express his/her views, s/he may be disappointed if it is discovered that his/her views were not listened to because they may believe that their views will be determinative of the outcome. This can lead to feeling angry and hurt if they were not listened to or feeling too much responsibility for the decision. In either case, the child can be emotionally compromised. Similarly, one parent or the other may use the child's wishes as a trump card to obtain an agreement or alternatively, claim that the child is traumatized by the mediation process, thereby sabotaging the process (Emery, 2003; Simpson, 1991). Additionally, some children may not express their true feelings if they fear their parents' retaliation or anger about their views and therefore should not be placed in that position (Brown, 1996; Drapkin and Bienenfeld, 1985).

2.3 Summary of when to include and not to include children's participation

There are no easy answers as to whether children's participation in post separation decision-making should be included or excluded. As can be gleaned from the above discussion, there, is no consensus in the clinical and social science literature about this issue. O'Connor (2004) suggests that one of the reasons researchers and practitioners have such divergent views about children's participation in decision-making post separation is that they are examining very different approaches to including children. She argues that while they may say they oppose or support including children, in reality, they only support or oppose some of the approaches that include children's participation.

There are pros and cons to both sides of this debate. It seems that much depends on the "context" of each situation. From a theoretical point of view, children's participation depends on the theoretical and conceptual lens of the mediator. That is, the mediator would have to have the conceptual viewpoint that children have rights and should be heard and recognized. Moreover, the mediator would also have to have an appreciation and understanding of the evolving capacities of children. From a practice point of view, children's participation depends on the clinical orientation of the mediator and how comfortable s/he is with interviewing children as well as assessing the individual needs of the children and their parents. From a research point of view, children's participation depends on the available research on evidence-based approaches that focus on the risk and resiliency factors of children and families. This research can, in turn, help guide practice and inform policy with respect to child-inclusive mediation and other ADR processes. From a policy point of view, children's participation depends on resources, training and policies and legislation governing children's inclusion before, during, and after parental separation and/or divorce.

Saposnek (2004) and Kelly (2002) provide some helpful tips on when to include and exclude children in the mediation process. Both stress that the mediator must have the requisite skills, training, and knowledge base, in addition to being comfortable interviewing children if children are to be included at all. They suggest that children should be included in the following circumstances:

They also suggest that children should be excluded in the following circumstances: