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<xTITLE>Children and Teenagers: When their right to be heard challenges us as conflict resolvers</xTITLE>

Children and Teenagers: When their right to be heard challenges us as conflict resolvers

by Maria Paola Felibert, Maria Eugenia Sole
May 2019
One of the biggest challenges for us as conflict resolvers is to help parents recognize their children’s vital role not only in the family system, but also in society. When we listen to children and adolescents in any proceedings affecting them, we are not denying the duty and the right of parents to provide direction and guidance in accordance with their children’s evolving capacities. On the contrary, more accurate decisions can be made in relation to children’s future if their opinions are known and parents can understand, share and learn from their children's experience as part of the family.

Conflict resolvers who work in family conflicts need to rethink their work, asking themselves: Is it useful to listen to children in situations that involve them? And if so, should they be listened to in all cases? What difficulties or risks may arise? Who decides the participation of children? Who interviews the child? How, when and where will the hearing take place? Who will be present? What degree of privacy and confidentiality will apply to the child’s views? How will his/her views be taken into account? When will decisions be made, and by whom? How will these decisions be communicated to the child?

To answer these questions, it is necessary to:

  • Rethink the risks that children’s and teenagers’ participation may generate in different proceedings, and be prepared to act accordingly.

  • Prepare special interventions to encourage the consideration of children’s interests when they differ from those of their parents.

  • Analyze the ethical responsibility of professionals to promote consideration of the interests of those affected by family disputes.

Apart from all the above mentioned considerations, it is absolutely necessary to consider the evolving capacity of children and adolescents, their right to be heard and their best interests.

Based on the degree of trust that the mediator achieves, he/she can offer and design a special approach to ensure that children are "heard" by their parents in an age-appropriate and helpful way.

However, some experts have raised strong arguments against the child's direct participation, stating that:

• Children lack the ability or experience to participate.

• Children cannot be heard until this right is respected for adults.

• Their childhood would be disrupted and even ended prematurely.

• Respect for their parents could be lost through hearing or witnessing parental conflict

• It could damage their development in the future, as well as causing harm in the short term

• Parents are clearly responsible for decisions concerning their children.

Actually, listening to children is important because:

• Participation contributes to their personal development: it helps to improve cognitive and social skills and respect for others. It recognizes their status as human beings in their own right, not as object of protection because of their vulnerability.

• When the opinions of children are known, the decisions that are made are more accurate, relevant, effective and sustainable.

• Participation serves to protect them: it is a powerful tool in situations of violence, abuse, mistreatment, injustice or discrimination.

•  Listening to children and young people helps to prepare them for life in a democratic civil society.

There are different ways of enabling children to participate in the mediation process using various possible interventions by the mediator:

• Including children symbolically (for example: through photos): the mediator would ask parents to imagine the children are with them in the room.

• The mediator might simply communicate to children the decisions that were made by their parents following the mediation, without the children's direct participation.

• Some mediators prefer to meet with children early in the mediation process so as to gain an understanding of their feelings and thoughts about the issues and use this information to guide parents.

•One mediator works with the children, and another mediator with the parents, regarding the same issues; then, the mediator who meets with the children joins the other mediator in a meeting with the parents to provide feedback to them in mediation.

• Children are invited into mediation at specific stages, when their parents are discussing issues directly related to them.

• Children might be included in the mediation from the beginning as equal decision makers.

ETHICAL FRAME FOR CONFLICT RESOLVERS

It is an undeniable ethical responsibility for mediators to consider adults’ difficulties in sustaining parent-child relationships when they are disturbed by separation and conflict. If mediators ignore such problems, they risk increasing the child’s vulnerability which is already under threat.

In times of changes of family structures, mediators have the responsibility of restraining parents from transferring their own vulnerability on to their children.

As mediators we must take into account the following ethical considerations:

• Parents run the risk of projecting their own vulnerability on to their children

• This may cause parents to withdraw and stop acting as guides to signify reality

The family justice system and society as a whole should provide opportunities for the appropriate and sensitive involvement of children in family transitions and changes in their lives, to help them understand the narrative and their place in the family as they move through adolescence towards independence. Mediators should act in accordance with these principles and understanding.

NEUTRALIZING RISKS: A SPECIAL INTERVENTION FOR EACH CASE

To avoid or at least minimize the possible risks that may arise in the process of family mediation, the following should be taken into account:

• The difference between the interests of children and those of their parents. Mediators have an ethical responsibility to consider the interests of all those who may be affected by the decisions made.

• The possibility to agree between parents and children as to the scope of a child's participation: who will be present, the confidentiality of what is said and the method of sharing the information, how the child's opinions will be taken into account, who will make the decisions and who will communicate them to the child.

• Interventions by mediators do not remove parents' responsibilities. Parental disputes can generate anguish and conflict of loyalties for their children. It should be made clear both to parents and to children, who will carry responsibility for deciding the outcome.

Respecting children's views does not mean that they can choose whatever they wish. Parents have the right to provide direction and guidance, but this requires parents  to listen to their children, take their points of view into account and recognize children’s right to contribute to the decision-making process.

ACKNOWLEDGEMENTS

We would like to express our very great appreciation to Lisa Parkinson for her valuable and constructive suggestions during the planning and development of this article. Her willingness to give her time so generously has been very much recognized.

ENDNOTES

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>    CAMPBELL Alan, “Escuchando a los niños. La práctica de la mediación con niños y la Convención de la ONU de los Derechos del Niño” Revista La Trama Nro. 7.

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>    CURI, Sara, GIANELLA Carolina “La participación de los hijos en la mediación en divorcio. Parte II” en Mediadores en Red, La Revista, Año II Nro. 4

>    DELORS, Jacques “Los cuatro pilares de la educación”, en “La Educación encierra un tesoro”; El Correo de la UNESCO, México, 1994

>    LANSDOWN Gerison, “Every Child’s right to be heard” A resource guide on the un committee on the rights of the child General Comment Number 12, publicado por Save the Children UK on behalf of Save the Children and UNICEF, 2011.

>    MEDIADORES EN RED, La Revista, Edición Especial noviembre 2004, “Divulgación de métodos para la resolución pacífica de conflictos”

>    PARKINSON Lisa, “Mediación Familiar, Teoría y práctica: principios y estrategias operativas”, Editorial Gedisa, primera edición en castellano, Barcelona, abril 2005

>    PARKINSON Lisa, “Family Mediation”, 3rd edition, Family Law 2014

>    PARKINSON Lisa, “Child-inclusive Family Mediation”, ADR Professional, Fam Law, June 2006

>    PARKINSON Lisa, “Adults should talk to kids more”, ADR Professional, Fam Law, March 2012

>    PROYECTO “CIUDADES AMIGAS DE LA INFANCIA”, UNICEF, disponible online enhttps://ciudadesamigas.org/

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>    ROSSIN, Susana, “Infancia ¿Para qué sirve la voz? Participación de los niños, niñas y adolescentes en el proceso de mediación”, material de la materia “Mediación Familiar” de la Diplomatura Universitaria de formación avanzada en mediación y negociación - competencias para el liderazgo. APEP yUTN.BA.

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>    VALDEBENITO Caterine; “Presencia de los niños y niñas en la Mediación Familiar en Chile”; Rumbos TS, año VII, N° 7, 2013, ISSN 0718-4182

>    ZELMANOVICH Perla, “Contra el desamparo”, material de la cátedra Nuevas Infancias y Juventudes, del Tramo Pedagógico para Nivel Medio, Instituto Superior Juan XXIII, Bahía Blanca, Argentina

Biography



Maria Paola Felibert is an attorney mediator and a labor conciliator. She is a specialized Lawyer for the Judiciary. Postgraduate program of Instruction for Lawyers HARVARD LAW SCHOOL. Secretary of the Defender's Office of the Judicial Department of Bahía Blanca, Mediation Area. Node Bahía Blanca of Mediators in Network Foundation. Vicepresident of the Institute of Mediation (Bahía Blanca Bar Association).


Maria Eugenia Sole is an attorney mediator. She has a Holborn College Diploma in Law of Tort and Law of Contract. University degree in conflict resolution and mediation. Pre-trial mediator with registration granted by the Provincial Direction of Alternative Means of Conflict Resolution of the province of Buenos Aires, Argentina. Aspirant to the Executive Latin American European Master in mediation and negotiation of IUKB-Institut Universitaire Kurt Bösch (Switzerland). Applicant to the postgraduate course on Education and TIC of the Ministry of Education of Argentina. Ambassador of ODR Latin America.