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

3.0 WHAT DOES CHILDREN'S PARTICIPATION MEAN? (Part 1)

At the broadest level, children's participation in decisions relating to parental separation or divorce can be as varied as having an opportunity to be involved directly or indirectly when parents are deciding parenting arrangements that affect their lives, having input into services that are being developed for them on separation and/or divorce, or participating in discussions about broader policy issues that directly affect their lives.[13]

There are also different levels of participation. Hart's (1992) ladder of participation in decision-making involves eight steps. As one moves up the ladder, children become more involved. At the lower level of the ladder, children do what adults say. At increasingly higher levels, they may instead be asked to take part in planning a family or community activity or to provide their thoughts and feelings—but without being given the opportunity to make choices. At the highest level of the ladder, children are able to set the agenda themselves and invite adults to participate.

Shier's (2001) pathways to participation associates children's involvement with a range of openings, opportunities and obligations. Similar to Hart's ladder, there are succeeding levels of participation from just listening to children to providing children with opportunities to share power and responsibility for decision-making with adults.

Sinclair (2004) describes children's participation as involving four dimensions:

This model begins on the premise that, given the diversity of children, it is important to start from the dimension of the fourth factor—the children and young people involved—and to consider, for example, age, gender, culture, economic and social circumstances and disability. That dimension must then be matched with all other dimensions relating to the nature of the activity, its purpose, and the decision-making context, if children are to meaningfully participate in decisions that affect their lives.

3.1 The different ways children's voices are being heard during separation and/or divorce

In the context of mediation or other ADR processes specifically, children's involvement is highly varied and does not follow any one particular model. In considering how children are currently being included from the perspective of where their participation fits along the various participation models identified above, children are usually involved at the lower end of the spectrum. That is, children are not automatically given "voice" in the decision-making process but rather continue to rely on adults asking them first. In turn, this leaves children feeling less empowered in the decision-making process.

Currently, children and youth participate in separation and divorce mediation and ADR processes in a variety of ways:

Some of the child-inclusive models in mediation and other ADR processes have been discussed in the preceding sections (e.g., Goldson, 2006; Kelly, 2002; McIntosh, 2000; Saposnek, 2004). The following provides further clarification on what is meant by mediation[14], child-inclusive mediation, ADR processes and the use of a child specialist in collaborative family law practice.

Mediation

The practice of mediation is largely dependent on who is conducting the mediation (lawyers or mental health practitioners), where it is being offered (private vs. public service), and what is being mediated (custody/access/property). Additionally, there are different types of mediation (i.e., facilitative, transformative, evaluative, and therapeutic) that are being practiced. However, in general, mediation shares four common elements:

The use of mediation in separation and/or divorce proceedings has been part of the family landscape for many decades and a preferred alternative to court (Folberg, 1983; Folberg, Milne and Salem, 2004; Folberg and Taylor, 1984; Haynes, 1980; Irving, 1980; Saposnek, 1983, 1998). Mediation has provided an alternative to the traditional adversarial approach that focuses on a zero-sum game and a win-lose outcome. Rather, mediation provides parents with a neutral third-party professional who assists them in reaching an agreement on parenting issues. Parents benefit as they are not engaged in a win-lose mentality that is often associated with litigation. Children benefit through a model that encourages greater cooperation between parents. In turn, parent-child relationships are less threatened than in the adversarial process where one parent often blames the other in a fault-finding exercise.

However, children's involvement in the mediation process has been quite limited (Austin, Jaffe, and Hurley, 1991) until recently (Goldson, 2006; McIntosh, 2007; Ministry of the Attorney General, British Columbia, 2007; Saposnek, 2004). Saposnek (2004) indicates that mediators included children's direct input in only four to 47 per cent of all completed mediations across public and private sectors, and across the United States, the United Kingdom, and Australia.

While much has been written on the possible benefits and limitations of including and/or excluding children in mediation, less attention has focused on research that either supports or refutes children's participation in the process (O'Connor, 2004). The divergent views that are expressed over whether to include or exclude children in mediation are not dissimilar to those in the debate over how children are fundamentally viewed during the divorce process—through the lens of a rights-based approach versus a protectionist approach (Elrod, 2007; Schoffer, 2005; Woodhouse, 2000).

Child-inclusive Mediation

Child-inclusive mediation refers to the involvement of the child in the mediation process in either one of two ways. One method is where the same mediator who interviews the parents also interviews the child separately, and then provides a feedback loop to the parents or brings the child into the mediation session with the parents. A second version of child-inclusive mediation involves a child specialist who interviews the child separately and provides a feedback loop to the parents or is present with the child in the parents' mediation session as a support person (Gamache, 2005, 2006; Gentry, 1997; Goldson, 2006; Kelly, 2002; McIntosh, 2000; Mosten, 1997; Saposnek, 2004).

Gentry (1997), Kelly (2002) and Saposnek (2004) include children in several different ways. For example, they may interview the child early in the process to get their views and feelings about the situation and introduce the information to their parents. They may bring the child into the mediation sessions when an issue comes up that the child can bring clarity to. They may consult with the child regarding his/her opinions after the parenting plan has been agreed upon in order to explore if any changes might be required. Or they may bring the child in at the final mediation session to be informed about what agreement was reached by his/her parents.

Kelly (2002) describes other ways to include children's participation in the separation and/or divorce process, depending on the child's age, emotional ability and cognitive ability. These range from including children in the discussions within the family at one end of the spectrum (e.g., parents talk directly to their children) to more formal discussions (e.g., talking to a judge) at the other end. These latter processes will be explored later in order to more fully capture these important forms of child participation in the separation and/or divorce process.

As noted earlier, there remains a paucity of research literature regarding child-inclusive mediation (Goldson, 2006; McIntosh, 2007; Saposnek, 2004), in addition to a lack of consensus on whether or not children should be included from participating in the decision-making, as well as how they should be included. In the final analysis, Smart and Neale (2001) assert that asking what matters must come before asking what works. In other words, children's participation must be viewed as the primary issue following separation and/or divorce as it is central to their sense of well-being providing children are adequately protected from harm.

Alternative Dispute Resolution Processes

There has been an increasing acceptance and understanding that the traditional adversarial system does not meet the needs of children and families. Since the 1980s other approaches have been developed that focus on reducing reliance on the adversarial process when it comes to parent-child relationships post separation and/or divorce (Emery, Sbarra and Grover, 2005; Irving, 1980; Kelly, 2002). These other processes have been commonly referred to as alternative dispute resolution processes. They fall on a continuum from simple negotiations between the parents at one end of the spectrum (i.e., parents sort out a parenting plan together) to negotiating with the assistance of lawyers, to appearing before a judge and litigating the dispute at the other end. Along the continuum, a number of different options remain available and can simultaneously occur. For example, parents can proceed with litigation while negotiating a resolution to the dispute and/or engage in mediation. In other words, there are numerous options before and during litigation that parents can still avail themselves of, rather than proceeding directly to court.

Parenting coordination (PC) is an ADR process that targets chronically-conflicted separated and divorcing families (Boyan and Termini 2004; Coates, Deutsch, Starnes, Sullivan and Sydlik, 2004; Fidler and Epstein, in press; Sydlik and Phelan, 1999). Unlike mediation where the parents meet with a neutral professional to resolve a dispute and obtain agreements, parenting coordinators facilitate the implementation of an existing parenting plan. Specifically, their functions include, but are not limited to:

Children's participation varies depending on the issues presented and the skill level of the parenting coordinator.[15]

Many of these ADR processes also provide children with different levels of participation. The levels of participation can also be characterized along an ADR continuum that stretches between voluntary and mandatory participation, such as:

Parent and Children's Programs

Many parent and child programs offer both information and didactic exercises that focus on reducing conflict as a result of parental breakdown and promoting positive parent-child relationships. These programs are offered through court-connected and/or community-based programs throughout Canada, the United States, and internationally, both on a voluntary and mandatory basis (Arbuthnot and Gordon, 1996; Bacon and McKenzie, 2004; Grych, 2005; Kelly, 2002; O'Connor, 2004). Kelly (2002) maintains that these programs should be mandatory across every jurisdiction as they help educate parents about the negative effects of their behaviour and attitudes regarding their children.[17] Moreover, she adds, that many of these programs have benefited parents and children alike by offering clinical and therapeutic components, important information about the negative effects of conflict on children, and skill-building exercises for parents to learn to better communicate with one another.

However, while these programs respond to the needs of the court and separating and/or divorcing parents, there remains little empirical evidence that the programs improve the quantity of nonresidential parent-child contact, foster quality parent-child contact, reduce inter-parental conflict, improve co-parenting, reduce relitigation and/or improve outcomes for children (Grych, 2005; O'Connor, 2004). The reasons vary from methodological limitations in the design of the programs (i.e., the use of comparison groups and how parents are assigned to groups) to not differentiating the reporting of consumer satisfaction with the program as distinguished from a more rigorous evaluation (Grych, 2005).

Some have suggested that, while programs and resources focused on improving parent-child relationships during family breakdown are important, children and youths still have their own independent needs and require resources that focus on those needs (Hawthorne, Jessop, Pryor, and Richards, 2003). As a result, in Canada and internationally, attention has more recently focused on targeting children and youths in providing information on the legal process, how to cope with their feelings as well as the changes in their family structure, and demystifying the separation and/or divorce process (Birnbaum, 2007; Department of Justice Canada, 2007; Richards and Stark, 2000; Walker, 2001).

Child Custody and Access Assessments

Child custody and access assessments typically involve a qualified mental health professional (social worker, psychologist, psychiatrist) interviewing each of the parents and children. Observations are made with respect to parent-child interaction, and personal and professional reports on the family are collected with a view to providing a written report to the court on the best interests of the children and the parents' abilities to meet the needs of their children (Birnbaum, Fidler and Kavassalis, 2008). In Canada, every province has legislation that provides for the provision of a child custody assessment and/or investigation and report.[18] Child custody assessments are conducted either privately and/or through publicly-funded programs.

While child custody and access assessments/reports have facilitated settlement between disputing parents, questions remain about what assessors can and cannot reasonably address in the assessment given the lack ofuniformly accepted standards and guidelines, the absence of validated methodology and standardized instruments, and the lack of empirical evidence to support various parenting time schedules and methods for decision-making (Bala, 2005; Tippins and Wittman, 2005). Bala (2005) asserts that, irrespective of the concerns expressed, assessments often produce a settlement of a child-related dispute that may not be reached through mediation or lawyer-assisted negotiation.

While legislation focuses on the best interests of the child as the only issue to be determined, the child custody assessment process falls under the traditional adversarial model where each parent's strengths and limitations regarding their parenting abilities becomes the focal point. Children's participation is limited to observations between the child and each parent. Interviews with the child (typically age five and older) and observations of parent-child relationships are made in the context of who could best meet the needs of the child. Although child custody assessments play an important role in the court system in that they often facilitate settlement (Bala, 2004), they remain part of the adversarial system that pits disputing families against one another (Johnston & Roseby, 1997).

Child Legal Representation

Children can be legally represented by a lawyer in their parents' custody dispute and have their views put forward by their lawyer. While the process of appointment for a children's lawyer across Canada varies, only Ontario and Quebec have a formalized program. Many states throughout the United States also provide for child legal representation in custody disputes. Internationally, in the United Kingdom, New Zealand, Australia and Scotland, there are also provisions for child legal representation.

There are three different roles that lawyers have traditionally played with respect to representing children. First, there is the traditional advocate role where the lawyer puts forward the child's wishes based on the child's instructions. Second, a child's lawyer can act as a guardian ad litem (best interest advocate) by presenting to the court his/her opinion of what the final decision should be based on the child's best interests. Third, the child's lawyer can act as amicus curiae(friend of the court). That is, the child's lawyer makes sure that the court has as much information about the child as possible (Bala, Talwar and Harris, 2005; Bessner, 2002; Burns and Goldberg, 2004; Davies, 2004; Ministry of the Attorney General, British Columbia, 2007)

While there remains debate regarding what role a lawyer should take when representing the child's voice in their parents' dispute, child legal representation serves an important function for children—their voices are heard. Moreover, child legal representation is consistent with Article 12 of the Convention.[19]

Judicial Interviews with Children

Judges can interview children who are involved in their parents' disputed custody and access matters in Newfoundland and Labrador, Prince Edward Island, Ontario, the Northwest Territories, and Nunavut (Ministry of the Attorney General, 2007). However, not all judges are comfortable with this approach (Raitt, 2007). Judges do not wish to place children in the middle of their parents' dispute where it is felt that children may have to take sides and where it may affect the quality of their decision-making and the parents' perceptions of fairness (Bala, Talwar and Harris, 2005; Bessner, 2002; Boshier and Steel-Baker, 2007). Yet, some children who were interviewed about being able to talk to a judge during their parents' disputed custody and access matter were generally in favour of doing so (Cashmore and Patrick, 2007; Parkinson and Cashmore, 2007; Parkinson, Cashmore and Single, 2007).

Child Specialist in Collaborative Family Law

Collaborative family law is an emerging practice that is interest-based and a settlement-oriented dispute resolution process. Unlike mediation where the mediator is a neutral third-party facilitating a resolution to the dispute with the parents only, in collaborative family law, the parents and their lawyers engage in a process together to resolve the dispute. Specifically, the parents and their lawyers agree at the outset that they will not proceed to court; but rather, engage in a joint problem-solving effort as opposed to the traditional adversarial approach (Fairman, 2007; Mcfarlane, 2005; Tessler, 1999; Webb, 2000). If the parents wish to proceed to court, both lawyers for the parents have to withdraw from the case.

When parents need a neutral third person to interview the children in order to bring the children's concerns and views into the process, a child specialist is then brought into the practice of collaborative family law (Gamache, 2005, 2006). Typically, the child specialist is a mental health professional and is included in the agreement with the parents and their lawyers that any information obtained by the child specialist remains outside of any future court proceeding. In addition, if the parents proceed to court, the child specialist can no longer be involved in any future adversarial action. The role of the child specialist is to report to the collaborative team (lawyers and parents) regarding what the children have said about their views and concerns about the parenting dispute. The children are aware of the limits of confidentiality and provide input into what they wish to be withheld or disclosed to their parents.

The level of child participation in collaborative family law varies depending on the issues the parents are able to agree or disagree about with respect to their children. In other words, children are not automatically involved in the collaborative family law process. Rather, parents are informed that a child specialist can be used to assist with children's issues, if necessary.

3.2 Summary of the Benefits and Limitations of the Different Levels of Participation For Children

All of the approaches discussed provide children with different levels of participation in the decision making process. Child custody assessments, child legal representation, and judicial interviews provide the court, if necessary, with assistance in their decision-making regarding children's best interests. From a child's perspective, their level of participation can be characterized at the lower end of Hart's (1992) ladder of participation. That is, while their wishes are canvassed, they are also filtered through the adult lens of what is considered to be in the child's best interest. In the final analysis, children remain on the periphery of these different levels of participation despite the extant social science literature and research that calls for their inclusion (Austin, Jaffe and Hurley, 1991; Cashmore and Parkinson, 2008; Butler et al., 2002; Goldson, 2006; Kelly, 2002; Marchant and Kirby, 2004; McIntosh, 2007; Neale and Smart, 2001; O'Quigley, 2000; Parkinson, Cashmore and Single, 2007). Additionally, child custody and access assessments, child legal representation, and judicial interviews remain under the umbrella of the litigation process. In other words, children's participation may occur a little too late in the process to have any meaningful impact on restoring and strengthening parent-child relationships post separation and/or divorce.

The traditional mediation approaches do not usually involve children and when they are involved, there is no consensus as to whether the same mediator should interview the children or whether a separate mediator should be retained to interview the children. In one study of practicing mediators in England, Murch et al. (1998) found that while mediators are aware of the importance of children's voices, the mediators addressed children's issues by having the parents think about the needs of their children, rather than directly talking to children. Child-inclusive mediation, on the other hand, provides children with more autonomy and direct input into the decision making process. However, the mediation process remains driven by an adult agenda when it comes to whether and when to include them (Gilmour, 2004; Kelly, 2002; Saposnek, 2004).

Collaborative family law and the use of a child specialist (mental health professional) in collaborative family practice have more recently become a focus of attention in Canada, the United States and internationally (Fairman, 2007; Gamache, 2005, 2006; Mcfarlane, 2005). As both collaborative family law and the use of a child specialist is a relatively new emerging area of practice, there remains little written about the use of the child specialist, the limitations, and their role in the process. Moreover, like child-inclusive mediation, it is the adults who decide if and when children are included. There have also been issues raised regarding those children who may present the child specialist with more clinical difficulties as they try to adjust to the parental conflict and separation. The role of the child specialist in collaborative family law is to provide short-term brief involvement rather than therapeutic assistance (Gamache, 2005, 2006). A similar point is made by Kelly (2002) and Saposnek (2004) who clearly distinguish the role of the mediator in interviewing children as being different from divorce counseling or other therapeutic interventions with children.

Again, it would seem that choosing to involve children in the decision-making process depends on "context". That is, the individual needs of the child must be canvassed alongside each parent's ability to use the child's information constructively.

From a broader policy perspective, comparatively little comprehensive discussions between and amongst practitioners (mental health and legal), researchers and policy analysts have taken place about whether, and in what way, children's participation can be integrated at a much earlier stage in the breakdown of their parents' relationship. Finally, there remains very little discussion and/or empirical research on: what ages are appropriate for children to be interviewed[20]; how to listen and understand children from diverse cultures, traditional backgrounds, or with language barriers; other forms of communication with children (i.e., drawing, play, writing letters); and possible learning and developmental challenges of children in providing their voice in the decision-making process.

The following section provides a description of the types of child-inclusive mediation and other ADR processes that are currently being employed in Canada, the United States and internationally. This section is meant to capture existing services and other ADR processes that include children's participation in the separation and/or divorce process.[21]