Best Interests and Little Voices: Child Participation in the Family Mediation Dialogue

by Jennifer Winestone
January 2015 Jennifer Winestone

Mother knows best
Listen to your mother
It's a scary world out there
Mother knows best 1 - Mother Gothel, Tangled

What a bunch of stupid children I have.” - Jim Anderson, Father Knows Best

Introduction
            In 2010, Walt Disney Pictures released the computer animated film “Tangled,” a film based on the classic “Rapunzel” story about a young girl locked in a tower, who leaves the tower to find adventure, against the wishes of her mother. 2  In 1949, NBC Radio broadcasted a program “Father Knows Best” about a family and its father-patriarch, Jim Anderson. 3  The entertainment industry has long poked fun at the old adages “Mother/Father Knows Best,” and elicited decades of comedic dialogue born from the divergent perspectives between parents and their children. 
            Social realities are often not very different from their fictional portrayals.  While parents often strive to do what is best for their children, their ability to make these determinations can be clouded by perception, self-interest, fear and emotion.  What is “best” is an entirely subjective standard and difficult to define with any sense of accuracy or certainty.  Notwithstanding, the “best interests of the child” is the standard employed “in all family law proceedings, including mediation, litigation, and custody evaluations.” 4 
            This paper examines the circumstances in which the child’s perspective and inclusion is appropriate in the divorce mediation process and how to achieve a safe inclusion process.  Specifically, this paper examines how a child’s inclusion may inform the “best interests” doctrine and aid mediation participating parents in making the “best” decisions in respect of their children.

Getting to Best
            Historically, in the English common law, child post-separation issues were decided according to “ownership rights,” with a presumption that fathers would be awarded custody of their children; 5 custody, being both a possessory right and power to make decisions in respect of the children.  By the late nineteenth century the “tender years doctrine” reversed this presumption in favor of women, based on the assumption that mothers were better nurturers to young children than fathers. 6  Different standards replaced these historical gender-based presumptions by the late 1960’s, giving rise to the best interests doctrine, which remains the prevailing standard today. 7
            The best interests doctrine seeks to determine the best situation for a child by comparing the respective situations between the child and each parent, including parent-child and sibling interactions, adjustment to parents’ homes, mental and physical health factors, and the child’s wishes. 8  Notwithstanding this seemingly “fair and child-centered” approach, it is also indeterminate, uneven, and encourages adversary between two fit parents, “with the child caught in the middle.”9   Moreover, by relying on these imprecise and seemingly arbitrary standards, parents may be encouraged to resort to litigation of their disputes, 10 as opposed to utilizing alternate forms of dispute resolution.

Respecting the Childs Voice
            Children were historically excluded from post-separation decision-making, because of the  assumption that children lacked the “legal and psychological capacity” to participate in decisions and that insulating children from the decision-making process would somehow protect them from the turmoil of divorce. 11  But these were not the only reasons children were left out of the post-separation conversation.  In accordance with the old adages “father/mother knows best”, “[a] related assumption was that parents know what is in their child’s best interests, and children’s views would, therefore, be adequately represented by their parents.” 12
            Studies show that these assumptions are false; in fact, “children’s  meaningful participation in decision-making can reduce the negative affects of family breakdown” and “often promotes their social well-being.” 13  Empirical findings suggest that children want to have a “voice” in the processes that “fundamentally affect their lives,” and that not listening to children’s voices “may do more harm than good.” 14 Accordingly, there has been an increase in developments aimed at promoting  the “voice of the child” in family law processes. 15
            Recognition and respect for the “voice of the child” has evolved not merely as a value-added phenomenon, but from a social recognition of children as “rights-bearing individuals rather than as merely objects of concern or subjects of decisions.” 16  Despite growing recognition of the value and importance of the child’s voice, 17 there are divergent views as to how and in what circumstances the child’s voice ought to be implemented in the legal processes.

Little Ghosts in the Room: Maximizing a Meaningful Process in Family Mediation

One of my mediation mentors talks about the Greek chorus,those well-meaning friends, siblings, parents an confidantes who tell people what they should have done in mediation.  I call them the ghosts in the room.  The parties children should always be among those unseen voices.18

            Family alternative dispute resolution processes offer parties a different forum for the best interests dialogue and decision-making:
Legal consumers who wish to opt out of family court have available to them a peacemaking menu that includes mediation, gendered co-mediation, collaborative mediation, child-centered mediation, and collaborative law processes, among other styles.  This enables practitioners to generate choices for legal consumers that can be adjusted ‘on the fly’ to meet the specific needs of each family. 19

The flexibility of mediation and related dispute resolution processes provides parties with the opportunity to broaden the dialogue in a safe non-adversarial dynamic.  Because it is resolution-focussed, various influences (ghosts) may provide assistance to parties in reaching an agreement.  In appropriate circumstances, it offers a welcoming space for “little ghosts,” seen or unseen, to be heard as well.
            Mediation is a self-empowering and cooperative process, which “provides an opportunity [for parents] to engage the knowledge and skills of a neutral professional who can assist a couple in negotiating around their respective differences to effectuate a settlement.” 20  However, mediation is not a process in which the “ends justify the means;” 21 to the contrary, the integrity of the mediation process is derived from its process-driven principles:
[t]he goal of mediation is not simply coming to an agreement.  Agreements could be reached through strong-arming, manipulating, or coercion.  These would not be considered mediated agreements.  The goals of mediation lie in its underlying values of self-determination, voluntariness, impartiality, confidentiality, and safety.  The process is as important as the ends, or as Marshall McLuhan once famously said, “[t]he medium is the message. 22

            The decision as to when and how to include children in the mediation process is not to be made lightly.  The inclusion of the child’s voice must be consistent with the core principles of “self-determination, voluntariness, impartiality, confidentiality and safety,” 23 and careful not to pervert the autonomy of the process.
 
Taking a Time Out: Considering Inclusion
            Notwithstanding the complexity of the inclusion decision, mediators tend to have polarized views when it comes to children’s participation in the mediation process: some mediators do not support the involvement of children at any point in the process, while others believe children participation is always beneficial. 24  In practice, the decision as to whether or not to include children in the mediation process depends on a variety of “personal, professional, and contextual variables.” 25  Mediators are more likely to include children in the process if they have subject-matter knowledge (i.e. developmental stages of children), professional training on interview techniques and a personal comfort level in working with children. 26   Logistical constraints, like time and finances also play in a role in the inclusion decision; as do general mediation theories/philosophies and styles. 27  Cultural variables also play a role. 28
            Despite personal, professional, philosophical and cultural differences, the empirical research and professional standards direct mediators to consider whether inclusion is appropriate on a case by case basis.  The Model Standards of Practice for Family and Divorce Mediation were developed by the Symposium on Standards of Practice and approved by the American Bar Association House of Delegates in February 2001. 29  Standard VIII provides guidance on the family mediator’s role in assisting participants in determining how to promote the best interests of the children in the process. 30  With respect to the inclusion of the children in the process, the standard provides:
14. Except in extraordinary circumstances, the children should not participate in the mediation process without the consent of both parents and the children’s court-appointed representative.

15. Prior to including the children in the mediation process, the mediator should consult with the parents and the children’s court-appointed representative about whether the children should participate in the mediation process and the form of that participation.

16. The mediator should inform all concerned about the available options for the children’s participation (which may include personal participation, an interview with a mental health professional, the mediator interviewing the child and reporting to the parents, or a videotaped statement by the child) and discuss the costs and benefits of each with the participants. 31

The standard seeks to preserve mediation principles of self-determination and voluntariness, but also recognizes the potential advantages of child inclusion, and seeks to promote a dialogue with parents about options for inclusion.

Learning to Listen: When and How to Incorporate Child Participation in the Process
            The first step in exploring options for child inclusion with parents is to determine the child’s stage of developmental readiness.  Children from eighteen months to five year are poor candidates for participation in mediation due to limited language and lack of cognitive maturity for understanding divorce. 32  From five to seven years old, children may benefit from participating in the process, but are also susceptible to manipulation and prone to loyalty conflicts. 33  Beginning at around eight to ten years of age, children are prime candidates for participation. 34  These children can understand the process and verbalize their interests. 35  When  children reach ages eleven to thirteen, they tend to try to cover up feelings of insecurity and fear about the divorce, often holding one parent responsible for the family breakdown. 36  For these children in particular, participation requires “guidance, assistance, and support” to help them learn the communication and relationship skills they require to help them through this period of transition. 37  Finally, children ages fourteen to eighteen can benefit from full participation in the mediation process, which can provide them with a forum for addressing issues and “hopefully avoid possible destructive behavior choices resulting from circumstances surrounding the change in the child’s family dynamic” (such as substance abuse and other “risk-driven” behaviors). 38
            Once the mediator and parents are satisfied of developmental readiness, the mediator should inform the parents of their options for inclusion, so the parents can make an informed choice as to if, and how, they would like to involve their children. 39  Methods of inclusion may  include the following:

    1. An early stage interview of the child by the mediator to discuss the chid’s “views, concerns, feelings, and spontaneously stated or implied preferences”; 40
    2. Inviting an independent child therapist or assessor to interview the child and report back to participants and the mediator; 41
    3. Periodic inclusion or “issue-specific” inclusion, as needed to gain clarity from the child’s preferences or perspective; 42
    4. Decision-making inclusion, as equal participants to the decision-making process; 43
    5. Inclusion in consultation, after decisions have been made, but before agreements are finalized; 44
    6. Inclusion in the final session, to inform the child of the agreements reached. 45

            The objectives of inclusion, by any of the forgoing means, are “functional” and not “superfluous.” 46  The objectives seek to inform parents, respect children, and further the principles of the mediation process.  The objectives are never to cause children harm by including them in the process, and accordingly, there are circumstances in which it may be inappropriate to include children, including:

    1. where there is agreement between the parents as to the best interests of the child; 47
    2. where the child is not developmentally ready for meaningful participation; 48
    3. where one or both parents object to inclusion; 49 and,
    4.  where inclusion may cause the child harm by causing or increasing their stress and anxiety. 50

Learning to Listen: Techniques for Inclusion of the Childs Voice
            The decision to integrate a child’s participation into the mediation process should be made early in the process, “because a child’s involvement necessitates significant preparation.” 51      First, the parents must be properly prepared by the mediator in terms of process and expectations.  For example, a mediator should prepare parents by “discussing the range of possible outcomes from the child’s interviews and then [ask] the each parent to imagine his or her reaction to each outcome.” 52  Next, the child must be properly prepared by the parents.  The mediator should coach the parents in their dialogue with the child about their participation (i.e. the mediator interview). 53  The mediator or independent assessor must work to build trust and rapport 54 with the chid and create a safe and suitable environment for inclusion. 55  Some mediators create a waiting room with age appropriate books, toys, crayons, etc, in their offices to help create an inviting environment for child participation. 56 
            The interviewer should then set the context of the situation for the child, assess the child’s awareness of the situation, and engage in a “wide latitude” dialogue with the child in order to assess the child’s preferences. 57  There are a number of tools to assist interviewers in orchestrating the “wide latitude dialogue”, which is not limited to the conventional interview dialogue.  For example, games can present a helpful means for child-centered dialogue. 58  One such game that is recommended to mediators is “Life and Stories.” 59  In Life and Stories, players land on one of three spaces, each of which correspond to different game cards: Memories, Etchings or Valuables.  The game cards require players to answer questions such as “What is one of the ways you and your parents are alike?” (Memories Card) or “What would a perfect day (or weekend) be like for you?” (Valuables Card). 60  Importantly, children are not required to play the card they are dealt, and may reserve the right to trade the card for an “Alternatives Card”, which may ask the player to tell a favorite joke or share a favorite color. 61  The game may be played with the child and mediator or inclusive with both parents. 

Conclusion
            The goals of the family mediation process are to provide parties with self-determination and control over their own destinies.  However, the parties’ destinies are not the only destinies at issue.  Separation and divorce have significant impact on the lives of the children and the dynamic of the family.  The guiding principle for decision-making regarding children’s issues is the best interests doctrine.  Determining what’s best in any given circumstance is a complex,  imprecise and uncertain undertaking.  The determination may be assisted by thoughtful investigatory endeavors.  One such endeavor invites the voice of the child to the process, respecting the child’s autonomy and dignifying the child with a forum for his/her personal and unique perspective.  When the circumstances deem it appropriate, mediators should welcome the child’s voice to the table and encourage parents to embrace the benefits that it may bring.

Notes

1 Tangled, Dir. Nathan Greno and Byron Howard. Walt Disney Pictures, 2010, Film.

2 Id.

3 Father Knows Best, NBC Radio, 25 August 1949. Radio Series.

4 Donald T. Saposnek, Working with Children, in JAY FOLBERG, ANN L. MILNE, PETER SALEM, DIVORCE AND FAMILY MEDIATION: MODELS, TECHNIQUES, AND APPLICATIONS 155 (The Guilford Press, 2004).

5 Joy S. Rosenthal, Esq., An Argument for Joint Custody as an Option for All Family Court Mediation Program Participants, 11 N.Y. City L. Rev. 127, 12 (Winter, 2007).

6 Id.

7 Id.

8 Id.

9 Id.

10 Id.

11 Rachel Birnbaum and Nicholas Bala, The Childs Perspective on Legal Representation: Young Adults Report on Their Experiences with Child Lawyers, 25 Can. J. Fam. L. 11, 1 (2009) .

12 Id.

13 Id.

14 Id.

15 Id.

16 Id at 2.

17 Id at. 2.

18 Supra note 5 at 4.

19 Thurman W. Arnold III, Strategies for Family Law in California, 2012 Edition: Leading Lawyers on Understanding Developments in California Family Law: The Growing Role of Mediation and Collaborative Law in Family Law Cases, 2012 WL 2166802, 2 (July, 2012).

20 Melissa J. Schoffer, Bringing Children To the Mediation Table: Defining a Childs bet Interest in Divorce Mediation, 43 Fam. Ct. Rev. 323, 3 (April, 2005).

21 NICCOLO MACHIAVELLI, THE PRINCE. Trans. Harvey C. Mansfield. 2nd ed. (University of Chicago, 1998).

22 Supra note 5 at 4.

23 Id.

24 Supra  note 21 at 4.

25 Supra note 4 at 156.

26 Id.

27 Id at 157.

28 Id.

29 The Association of Family and Conciliation Courts, Model Standards of Practice for Family and Divorce Mediation (approved by the ABA House of Delegates February, 2001), available at http://www.mediate.com/articles/afccstds.cfm.

30 Id, Standard 8.

31 Id, Standard 8.

32 Cassandra W. Adams, Childrens Interest - Lost in Translation: Making the Case for Involving Children In Mediation Of Child Custody Cases, 36 U. Dayton L. Rev. 353, 4 (Spring, 2011).

33 Id.

34 Id.

35 Id.

36 Id.

37 Id.

38 Id.

39 Supra note 21 at 4.

40 Supra note 4 at 161.

41 Id.

42 Id.

43 Id.

44 Id.

45 Id.

46 Id at 157.

47 Id at 160.  Note: Children may still be included in the final mediation session in order to inform them of the agreement reached.

48 Id.

49 Id.

50 Id.

51 Supra note 21 at 7.

52 Supra note 4 at 163.

53 Id at 165.

54 Id at 167.

55 Supra note 21 at 8.

56 Id.

57 Supra note 4 at 168-172.

58 Supra note 21 at 7.

59 Id.

60 Id.

61 Id at 8.

Biography


Jennifer Winestone is a mediator in Los Angeles, California, with a practice focussing on family legal issues.  Jennifer is licensed to practice law in both Ontario (Canada) and California.  A former family law and estates litigator, Jennifer now devotes her practice entirely to conflict resolution, helping families in transition and/or crisis to resolve their legal conflicts and move forward with their lives.  Jennifer obtained her law degree from the University of Ottawa and Master of Laws (LL.M.) in Dispute Resolution from the highly acclaimed Straus Institute for Dispute Resolution at Pepperdine Law School.  Jennifer believes in evolving litigation and dispute resolution processes and strives to be part of positive changes in the future of family dispute resolution.  She is a frequent trainer of mediation techniques and processes and active participant in Los Angeles’ dispute resolution community.



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