As mediation takes an in-creasingly prominent role in the family law arena, elements of the process have become more familiar culturally. Among these are: the opportunity to craft individualized solutions; autonomy in decision-making; voluntary participation; and low costs. Parties choose to mediate, as an alternative means to crafting a divorce settlement, for a broad range of reasons, including to maintain some measure of goodwill, peace and cooperation—particularly when the divorcing couple has children. In fact, attempting to mediate a divorce conflict, rather than entering a court process, is itself indicative of the parties’ mutual hope to create a foundation for communicating and cooperating for the benefit of their children. Such couples realize that they are inextricably bound by their parenting role. And, an important by-product of this effort to cooperate: some insulation of the children from the stress and conflict inherent in divorce.
Indeed, that mediation will yield dividends to the entire family has been borne out by the academic and scientific research in this area. Most widely cited is the longitudinal study by Professor Robert Emery of the University of Virginia.1 Published in 2001, Emery’s 12-year study followed high-conflict families who participated in short-term mediation not necessarily resulting in a final agreement, as well as a control group of families who instead litigated. The mediation group received an average of just five hours of services, much less than the average mediated divorce case. Nevertheless, that group reported, over the 12 years, more consistent and frequent contact with the non-residential parent and better communication and cooperation between the parents around issues such as discipline and how to celebrate special events and holidays. In other words, even a minimum of exposure to the process positively impacted the families.
The substantive decisions reached in the mediation group and the control group, were strikingly similar. What differed between the groups was not the results; rather the process engaged to achieve those results and, in turn, the long-term benefits of the mediation process. Specifically, Emery cites “having a voice; taking the long view; working together; learning about children’s needs and co-parenting; recognizing your own grief and how it causes anger” as essential to the positive long term results of mediation.
As the benefits of mediation are better understood, a dimension of the process that is being explored, and even incorporated in some jurisdictions, is to what extent and how the child has input in the mediation. Such input focuses on all non-financial aspects of a parenting plan. This philosophy has been coined as “child-focused” mediation. In other words, maintaining a close focus on the needs and interests of the child through the parents or the use of experts. This is distinguished from “child-inclusive” mediation, which actually gives the child a direct voice with the mediator and, in turn, the parents.
SHIFTING THE FOCUS
Every divorce negotiation entails a conscious effort by the mediator to engage the parents in a conversation not only about their values and concerns regarding scheduled time with their children, but also how they will make decisions affecting the children’s upbringing. A child-focused mediation may include a conversation about how each child views the choices. The mediator will intentionally ask, for example, “How do you think the child wants to spend weekend time with each of you?” For parents struggling with shifting away from a win-lose paradigm, placing a photo of the child on the mediator’s table may serve as a gentle reminder that the child, too, is a party to the decisions being made. In fact, some mediators will even engage parents in a role-play, during which they have a conversation with the mediator posing as their child. The parent then tells the “child” what they’re hoping will happen going forward and may even assume the role of the child, and respond.
Eliciting such empathy for the child’s experience is intended to help expand the parents’ views of acceptable outcomes, shifting the focus from their own needs to those of the child. Another strategy for bringing in the child’s perspective is to work with an expert called a child specialist, who meets separately with the child, often several times—and perhaps with the parents as well. In contrast to the mediator, the child specialist is an expert well-poised to deliver helpful assessment information to the parties.
Child-inclusive mediation is much less common in New York and indeed in the United States as a whole. But we may learn another way of conducting mediations by turning to common practice in countries such as Australia, New Zealand and Canada. A study by Jill Goldson of Auckland University, concluded, “the airing of the children’s issues is vital for the rearranged family as a whole. It is not suggested that children should be given responsibility for making decisions, but that they be accorded their rights in democratic processes of negotiation.”2 To amplify the benefits of child participation, Goldson works to debunk concerns that children will be traumatized by being included in the divorce process. Rather, her interviews with children lead her to conclude that “they yearn for a chance to make sense of their situation by being part of the negotiations.”3
In the United States, in addition to the custody and visitation context, the child’s voice is brought into the room in foster care mediations. These foster care mediations range from pre-fact finding to post-termination of parental rights and all stages in between—disposition, permanency planning, service plans, custody, whether to surrender parental rights–with the exception of fact-finding, which remains the domain of the judge.
The mediations can be multi-party, depending on the issues to be resolved. Even non-parties, such as foster parents, may participate. Because foster care cases often entail a range of service providers and professionals, it benefits the family when all parties with a vested interest communicate and coordinate in an evaluative and planning capacity. So, for example, a foster parent, a case worker and an educational consultant, can come together with the respondent parents, the attorney for the agency and the attorney for the child. All parties then engage in a constructive, facilitated conversation. Otherwise, a disjointed approach to servicing the needs of the family can result from communication gaps outside of the process.
The voice of the child is brought in to the process in one of two ways in foster care mediations. Most commonly, the attorney for the child (formerly known as law guardian) presents the child’s positions and wishes just as any attorney for an adult would. The notion of an attorney for a child having an equal voice in the negotiations is itself empowering.4
The second way is the child himself participates in the mediation. While uncommon, particularly for adolescents, it may provide a forum for the child to learn, listen and speak up. In other words, the child appears as an equal to the others around the negotiation table. As with all parties to mediation, the child in the mediation room is an empowered expert in his own life and is exercising autonomy by virtue of expressing his values, concerns and insights. However, as in custody matters, the ultimate decision-making lies with the adults in the room.
The process for incorporating the child’s participation is distinguished from that of the adult parties. Typically, the mediator conducts an initial meeting, one on one, with the child to discuss what the process may look like. And, post-mediation, the mediator endeavors to debrief with the child. Children may be concerned about being interrogated, may harbor anger toward a parent, case-worker or foster parent. The mediator thus attempts to craft a forum respectful of the child’s needs.5
Ann Marie Scalia, the Attorney In Charge of the Manhattan office of the Juvenile Rights Division of the Legal Aid society, draws a stark contrast between representing children in court and in mediation. In mediation, you can have a “much more humane and extensive conversation about issues that are human, that are not set up to play themselves out in a courtroom.” As an attorney for the child, she has brought clients to the mediation room, noting, “A lot of kids have a tremendous need to really be heard and [mediation] provides a safer place to do it.”6
While there are effective, best practices for including children in mediation sessions, some experts express concern for the risks inherent in child participation. Elana Katz, a licensed clinical social worker and licensed marriage and family therapist, and senior faculty at the Ackerman Institute for the Family, states that in divorce, children as well as their parents are undergoing a period of great distress, so the mediator must be mindful both of managing expectations of the participating child and of not “de-skilling” the parents. In other words, according to Katz, the mediator’s advance work with the child includes preparing the child to be heard, while at the same time understanding that not all of his/her wishes may be honored in the final divorce agreement. Moreover, the ultimate decisions lie with the parents, and Katz warns that children of divorcing parents may “get thrust into an adult subsystem unwittingly. They are at risk of losing their ability to become children.” An additional risk, according to Katz, is that parents hoping to fulfill their child’s wishes for life post-divorce may themselves unwittingly cede their executive decision-making responsibilities.
The mediator must artfully probe what underlies the child’s preferences and get underneath the positions to understand the context in which the child is expressing his or her point of view.7 Children do, naturally, have reasons they may feel closer to one parent or respond to significant life changes, at different ages and development phases. Consequently, when including or focusing on the child’s perspective, the role of the expert—be it a child specialist or an attorney for the child—is invaluable.
Abby Tolchinsky and Ellie Wertheim are partners at Family Mediation.
2. Jill Goldson, “Hello, I’m a Voice, Let me Talk: Child-Inclusive Mediation in Family Separation” (December 2006) at 17.
3. Goldson, supra at 11.
4. See Rule 7.2 of the Rules of the Chief Judge (2007), which states that the child’s attorney “should be directed by the wishes of the child” if “the child is capable of knowing, voluntary and considered judgment,” even if the attorney “believes that what the child wants is not the child’s best interests.” See also, Gary Solomon and Tamara Steckler, Perspective, New Era in Representing Children, 36 Nova L. Rev. 387 (Spring, 2012).
5. Conversation with Catherine Friedman, New York City Family Court Alternative Dispute Resolution Coordinator, July 17, 2013.
6. Conversation with Ann Marie Scalia, July 24, 2013.
7. Conversation with Elana Katz, LCSW, LMFT, July 18, 2013.