THE NOTION OF CHILD-INCLUSIVE MEDIATION - Essay Example

?THE NOTION OF CHILD-INCLUSIVE (AS OPPOSED TO CHILD-FOCUSED) MEDIATION IS ILL CONCEIVED AND MISGUIDED. INVITING CHILDREN INTO THE MIDDLE OF THEIR PARENTS’ DISPUTE IS LIKELY TO AGGRAVTE RATHER THAN IMPROVE THEIR SITUATION: CRITICAL DISCUSSION This essay is primarily based on critically analyzing the mediation approach of including child during the process of parental conflict based on separation or divorce. This approach definitely has its merits. Attaching considerable importance to the voice of the child is highly important during mediation processes and leads to reduced conduct problems among children.1 This also facilitates both the parents and the jury to acknowledge in a better way the child’s experiences, concerns, and desires2 and how to design parental responsibilities in accordance with those experiences later. But even after myriad benefits offered by the child-inclusive notion, the opponents of this mediation approach deny its credibility and argue that openly dragging children into the middle of the hot mess created by the parental conflict could inflict a wide variety of deteriorating effects on the raw minds of the young children. This could also make them experience divided loyalties, suffer from anxiety and confusion as they may feel overburdened by offering their opinions.3 In addition to this, a child may feel disappointed when he/she expresses his/her views but realizes later that those views were not listened to.4 This essay aims at contemplating the arguments both in favor and against of child-inclusive strategy by exploring research literature in an attempt to evaluate the credibility of the argument that child-inclusive mediation is flawed and misguided. In order to validate discussion, the relevant research is also presented with special reference to the rights of the child. A growing body of research could be found presently related to the concepts of child-inclusive and child-focused mediation both of which are child welfare oriented strategies but stand in stark contrast to each other in terms of practical procedure. While child-focused intervention encourages parents to address the child’s needs without any direct involvement of the children,5 the child-inclusive intervention includes separate consultation by a specialist with the children.6 Mediation is important because otherwise post-separation court visits, legal affairs, and acrimonious family disputes together inflict a profoundly devastating influence on the minds of innocent children related to aggression, impulsivity, delinquency, depression, peer difficulties, and academic achievement.7 It is further claimed that for about 10% of all divorcing couples, the unremitting animosity will shadow the entire growing up years of their children.8 General consensus is that long-standing, unresolved, and harsh conflicts prove to be highly risky for not only the parents but for the children also9 and it has been repeatedly suggested that family disputes which are tried to be resolved by involving courts take considerably more time than which are resolved through the aid of cost-effective10 mediation. Ineffective communication between parents following separation readily fosters flawed parenting which leaves the child stuck in the middle of chaos11 and it is advised that the quality of parenting provided by both parents following separation and divorce is as important as conflict in determining children’s outcomes.12 Mediation is effective in this regard because not only it seeks to resolve chronically bitter family disputes but also provides opportunities to exit the legal system at the earliest point possible.13 Though the basic aim of child inclusive practice is to enable parents to become bigger, stronger, wiser, and kinder,14 there is much conflict regarding which mediation approach should be used and the issue is hotly debated so as to find out which way would produce least ruthless effects on the children. It is widely believed that the voice of the child is important and should be heard during times of parental separation15 but when their voice should be heard and which way is the most effective to hear them remains less clear.16 Child legal representation as part of parents’ mediation is important because its objective is to allow a child have his/her voice heard during times of parental dispute.17 Children’s involvement in separation or divorce conflicts as a way of resolving the dispute faster makes the communication between parents effective and agreements reached are more durable.18 An important thing to mention here which the opponents of this approach should acknowledge too is that this also sets in accordance with the United Nations Convention on the Rights of the Child (UNCRC) which expresses that everywhere it should be made a priority to consult the children when decisions are made about their future life affairs19 following parental dispute as participation of children themselves in the critically important decision making processes is not something that should be overlooked. Now CI intervention is unique in respect that it incorporates consultation with school-age children about their experiences of their parents’ separation and dispute, conducted by a trained specialist in a supportive20 environment. The importance of the voice of the child has not been appreciated properly always which is why children have remained largely absent from the mediation processes21 for quite a long time and still are not involved in places where there is not proper awareness about what a structured process child-inclusive mediation is. In a study analyzing mediation parents vs. adversarial parents, the former were reported to have significantly less conflict, more cooperation, more child-focused communication, and more non-residential parent participation in decision making about the children.22 Though the critics of child-inclusive mediation agree on the resolute reality that children need very special kind of care, love, guidance, and attention as they happen to be very raw, vulnerable, sensitive, and immature, but what they seem to forget is another deplorable reality that many children around the globe are subjected to ignorance on extreme levels when decisions holding huge future ramifications for them are deliberately made without them. When children are not included in the post-separation decision-making issues, they are seriously neglected and their rights are abused. It is the primarily important right of children around the globe irrespective of race, sex, religion, culture, or language to be rescued from negative societal attitudes like discrimination, neglect, and abuse, and this is also described to be the main objective of United Nation’s Convention on the Rights of the Child (CRC).23 CRC is actually a convention of 1989 of United Nations that sets very clear and comprehensive standards for protecting rights of children and also mentions specifies areas which should be focused for granting those rights.24 Including children in the mediation as a way of making them aware of the need to contribute in reaching certain decisions is one such area which was not considered before but credibility is awarded to it by CRC now. Actually, the bedrock of CRC is formed by four general provisions which specifically guide all the countries as to how to protect and promote rights of a child and transform mere philosophy into real life effect. This means that CRC stresses on making the mere philosophy of including children in mediation functional and effective. The major CRC provisions focus on rights of children to life, survival, and development, non-discrimination, thinking visions of the child, and valuable interest of the child.25 It is very obvious from this that children certainly do have a right to be included in their parents’ dispute as this right comes under the headings of thinking visions and valuable interest of the child. Child-inclusive mediation specifically aims at exploring the thinking visions of the child by giving the children a voice in the resolution of the dispute.26 Every government and legal authorities should focus on the four major provisions of CRC if betterment and social welfare of children is intended in reality in context of post-separation trauma and actions should be taken on international, regional, and domestic levels in harmony with UN’s CRC and international law of human rights which clearly express that child-inclusive mediation is not an ill-conceived and flawed mediation approach. CRC differs from previous conventional international treaties for granting rights to children in that it calls for solid actions to be taken by legal institutions, the State, and parents or guardians in addition to granting children from all backgrounds to freely hold and express their views.27 CI intervention in accordance creates rights for children in areas not considered earlier and expresses them very realistically and with a multi-dimensional approach. This means that children have an absolute right to express their views which outrules the possibility that dragging children into mediation process could be anything close to devastating or toxic for them. However, proponents of CI intervention claim that children are vulnerable to external pressures when involved in residence, specific issues and contact disputation.28 But the opponents of CF mediation suggest that particularly in areas where there is much conflict like the area of family mediation, children’s rights are subjected to abuse to avoid which CI intervention is an effective solution because children will typically be more accepting of an arrangement in which they have had input.29 Effective incorporation of children rights as detailed by international law like CRC into regional and domestic legal systems presents a tough challenge and introduces huge responsibilities for the state authorities, courts, and lawyers. Finding effective ways to help out families stuck in child custody disputes remains one of the great challenges in the family law arena.30 Commonly in the absence of mediation people have no other option but to seek help from local courts following separation or divorce to resolve conflicts, but truth is that conflicts are better solved through mediation. It is sad that over 80% of child custody mediators do not include children in the process.31 The argument of not including the children into their parents’ dispute following separation or divorce is indicative of not the welfare of the children but of depriving them of their rights to freedom of expression. The notion of child-focused mediation which stresses on involving only parents stands in contrast to child-inclusive mediation and actually works to ensure disproportionate provision of rights. This is because due to CF mediation, majority of children have a parenting plan imposed on them without their input.32 Proponents of child-inclusive mediation consider the child-focused mediation to be an error made at regional and domestic levels in direct violence of the UN’s international human rights law because it stresses on depriving the children of their right to express their thoughts for sake of their own benefit but it is hard to imagine what solid benefits could be obtained if the decisions are not made in accordance with the desires and preferences of the children. Child-inclusive mediation in particular makes children feel that someone cares about their needs33 and requires the parents to resort their affairs in accordance with the child’s preferences before heading to the court to resolve long-standing conflicts. It stands in contrast to the child-focused approach which focuses on the children’s needs but rejects the notion of including them in the process of designing post-separation parental arrangements. Another major area of focus in child-focused mediation is inviting parents to seek solutions to long-standing bitter arguments in a facilitated, court-free, and constructive environment but unlike child-inclusive approach, it does not invite the children to share their views and thoughts directly. Instead it encourages the parents to talk about what their child wants and how he/she prefers the decisions to be made. Children are not allowed full participation in the parenting arrangements that are about them.34 This strategy could seriously interfere with the fair procedure of reaching decisions because understandably, both sides during the negotiation process get the freedom to hide whatsoever details they want to hide respecting the child’s preferences. This could camouflage the child’s original intentions, desires, and vision of thought because obviously he/she him/herself is not invited by the mediator party to share their opinions in person about how the parenting arrangements should be designed. This could be safely said that the child-focused mediation is based on good intentions as it aims at providing an opportunity to the parents to explore and scrutinize their concerns but the route this approach takes to reach this target is ill-conceived and misguided because the children do not get the opportunity to explore their preferences openly. Instead they are represented by the parents and this could create a lot of chaos and interfere negatively with child’s welfare. It is opinioned by the proponents of child-inclusive mediation that it provides for more autonomy and direct input into the decision-making process.35 The children’s interests and concerns can be represented in the best way possible by themselves alone and not even by their own parents. This idea forms the bedrock of child-inclusive mediation and the route also through which decisions are reached between the parents. The major conflicting feature between child-inclusive and child-focused mediation is that in the former, the children in addition to parents are given an opportunity to express their vision of thought in a protected, facilitated, and constructive environment and in the latter, parents alone are given this same opportunity. So it can be seen that the point of focus of these two mediation approaches is the same which is to explore the child’s concerns and choices but the route taken by each of them to achieve the end target stand in stark contrast to each other and the arguments and criticism also revolve around the dissimilar routes in an attempt to decide to which route could more credibility and effectiveness be safely attached. It is true that mostly in post-separation cases, children happen to be in a stage where there brains are still in the process of development and increased involvement in the parental disputes could inflict deleterious effects on their raw minds and foster waywardness and aggression in them. But the absence of children from the periphery of mediation processes to resolve post-separation parental arguments and lay out constructive parental arrangements could result in aggravating the bad consequences for the children in the long-term. If child-inclusive mediation could foster depression in the children among other negative effects as claimed by the critics, then child-focused could as easily instill a rancorous behavior in them because in the later years they could feel hurt and indignant over not being given the chance to have a say in the important decision-making processes. The disputes may be resolved for the time-being through child-focused mediation but decisions made in the process are often at a high risk of not being foolproof because they are made only by the parents and the mediator party. The child-inclusive mediation could be labeled anything but ill-conceived, misguided, and flawed because in addition to granting the children the right to freedom of expression and decision-making, it allows the parents and mediators to appreciate the child’s personal opinions, better grasp how he/she is handling the post-separation trauma, and build flexible arrangements based on the children’s needs rather than parental desires.36 Myriad views that cannot or may not be expressed by the children in the confines of the child-focused mediation are allowed and even encouraged to be expressed and explored by the child-inclusive approach. Research conducted by Jennifer McIntosh who practiced both types of mediation compared the benefits offered by both types and research findings revealed that families involved in child-inclusive mediation went to court half as often over parenting matters – but usually due to property disputes.37 The Federal Government in Australia also as a way of determining the best approach to resolve family disputes before seeking refuge in the court conducted an evaluation of family law reforms and the findings suggested that acrimonious separations are less likely to end up in court if the children's views are included during mediation, compared to cases where only parents are involved.38 Except in cases of domestic violence39 or physical abuse, the efficacy of child-inclusive strategy is such that it is made compulsory all over Australia for post-separation parents whenever they find themselves on the verge of violence due to any unresolved dispute over child contact, living arrangements or property.40 Such compulsory mediation programs financed by the government particularly aim at keeping the parents from heading to the court to resolve matters but research suggests that child-focused mediation has not remained as successful and effective as child-inclusive approach to achieve this aim. Most divorce education or mediation programs are designed only for parents41 but the major goal of child-inclusive mediation programs is to enable children to cope more effectively with separation or divorce42 by not turning them into decision makers43 but by synchronizing their needs with their parents’ agenda. It is a deplorable reality that many consultation centers around the world still do not attach considerable importance to consulting children as part of their parents’ negotiation. After tracking as many as 130 families, the same Australian government-study further found that cases in which children were consulted as part of their parents’ mediation, the children four years later reported lower conflict between their parents44 than cases in which children’s input or views in firsthand were not included. In addition to resolved conflict and functional communication between parents and healthy parenting arrangements, the benefit of the family avoiding the risk of ending up in court is always there. Another striking feature of the study is that when children whose parents went through child-inclusive mediation were asked about the state of their lives, 81% of children said it was either good or great compared to only 47% of the children whose parents chose to resolve family disputes through child-focused mediation.45 Unless a conflict between the parents is exceedingly gruel and deep-rooted, it is claimed by Professor McIntosh who has a long experience of family mediation that otherwise child-inclusive mediation has proven to be a powerful intervention which has the potential to put families on a firmer footing post-divorce.46 Opponents of child-inclusive strategy claim that it is an ill-conceived approach because it does not pay attention to the best interest of the child and those interests are based on excluding him/her from the parents’ mediation as a way of keeping him/her from facing the bitter, agonizing, and shocking post-separation situation. Directly getting involved in such mature, hard, and tough adult situations could make a child feel increasingly insecure and paranoid and such negative deleterious emotions may change the course of his/her’s life.47 Compelling research evidence also points out that children placed in the middle of the parental dispute by one or both parents are more likely to be depressed and anxious48 compared to children who are not involved in such adult affairs. It is also claimed that child-focused mediation should not be considered an approach not based on child’s interests and concerns because it keeps the children’s needs at the center of the discussion and supports parents in creating or regaining a healthy post-separation alliance.49 It also encourages the parents to listen to a child counselor as a way of acknowledging their children’s experiences and what they would be needing most in such time of trauma, pain, and agony. Involving the child in his/her parents’ mediation can better enable the parents to appreciate how their child is coping with the separation and parental conflict—views that may not be expressed in the confines of the family dynamic.50 It is reported that the family justice counselors in British Columbia51 practicing child-inclusive mediation feel more personally rewarded by the work because they see changes being made by both parents and children as the focus shifts to parent-child relationships as opposed to who is the better parent52 as is mostly the case in child-focused mediation or court trials. It is suggested that the court trials do not make the best option because parenting disputes are prosecuted through allegation and counter-allegation, with an emphasis on the deficiencies of the other parent.53 Same idea is also suggested by the growing body of divorce and child adjustment research according to which the adversarial process pits parents against each other, promotes polarized thinking about each other’s deficiencies, and discourages communication.54 This is why child-inclusive mediation should be seen as a cost-effective and time-saving approach which not only seeks a long-lasting solution but also allows the child’s vision of thought to be heard and explored. Research analyzing the child adjustment post separation suggests that child-inclusive mediation helps in gradually increasing contact of children with parents and also leads to better management of parenting disputes and children feeling less caught in the middle.55 Concluding, this much remains clear from the above discussion that child-inclusive and child-focused are two kinds of family mediation which reflect on seeking ways to avoid prolonged conflict by involving children in the first case and only parents in the latter. The welfare of the children in CI intervention is set in accordance with the globally acclaimed theme that the voice of the child holds immense importance and should not be overridden. This is important as all the decisions made after separation or divorce always have prodigious ramifications for the children. Since children happen to be particularly and naturally vulnerable and innocent, so they need to depend on others and understandably hesitate to exercise rights independently which is where the parents, counselors, and law-enforcing bodies should step in to actively include the children in the mediation. Children’s rights are violated when they are not included in the mediation, when they are not approached by any child counselor, or when they are not given the authority to make decisions about shared parental responsibilities. It is easy to see that every stage of child-focused mediation excludes the full participation of children and prefers to include the advice of a child therapist to help the parents appreciate their children’s needs which is not a suitable strategy because no one but children themselves should be allowed to express their views as it is their legitimate right. Endnotes: RE Emery, Renegotiating Family Relationships, Second Edition: Divorce, Child Custody, and Mediation (Guilford Press 2011) 215 2 Ibid 3 R Birnbaum, ‘The Voice of the Child in Separation/Divorce Mediation and Other Alternative Dispute Resolution Processes: A Literature Review’ (Department of Justice Canada 2009) accessed 02 December 2012 4 Birnbaum (n 3) 5 JE McIntosh, YD Wells, BM Smyth and CM Long, ‘CHILD-FOCUSED AND CHILD-INCLUSIVE DIVORCE MEDIATION: COMPARATIVE OUTCOMES FROM A PROSPECTIVE STUDY OF POSTSEPARATION ADJUSTMENT’ (2008) 46 FAMILY COURT REVIEW 105 6 Ibid 7 K Kuehnle and L Drozd, Parenting Plan Evaluations:Applied Research for the Family Court: Applied Research for the Family Court (Oxford University Press 2012) 72-73 8 J Johnston, V Roseby and K Kuehnle, In the Name of the Child – a Developmental Approach to Understanding and Helping Children of Conflicted and Violent Divorce (Springer Publishing Company 2009) 9 Birnbaum (n 3) 10 Ibid 33 11 BD Garber, Keeping Kids Out of the Middle: Child-Centered Parenting in the Midst of Conflict, Separation, and Divorce (HCI 2008) 51 12 Kuehnle (n 5) 73 13 S Parker, Family Law: Processes, Practices, Pressures : Proceedings of the Tenth World Conference of the International Society of Family Law (Hart Publishing 2003) 294 14 J Bowlby, Attachment and Loss, vol 1, Attachment (Basic Books 1969) 15 Birnbaum (n 3) 49 16 Ibid 17 Birnbaum (n 3) 50 18 McIntosh (n 5) 106 19 Convention on the Rights of the Child, ‘Children’s Rights’ (UN.org 1989) accessed 02 December 2012 20 McIntosh (n 5) 109 21 JE McIntosh, C Long and L Moloney, ‘Child-Focused and Child-Inclusive Mediation: A comparative study of outcomes’ (2004) 10 Journal of Family Studies 87 22 D Gauvreau, ‘Mediation versus Litigation: Examining Differences in Outcomes amongst the Children of Divorce’ (Family Law Alternative Dispute Resolution 2012) accessed 02 December 2012 23 CRC (n 19) 24 UN High Commissioner for Refugees, Protecting Refugees; A Field Guide for NGOs (UNHCR 1999) accessed 02 December 2012 25 CRC (n 19) 26 F Bell, J Cashmore, P Parkinson and J Single, ‘Choosing child-inclusive mediation’ (2012) 23 ADRJ 225 27 CRC (n 19) 28 M Emerson and D Britton, ‘Involving Children in Family Dispute Resolution’ (Brisbane Mediations 2008) accessed 02 December 2012 29 DB Pickar and JF Kahn, ‘SETTLEMENT-FOCUSED PARENTING PLAN CONSULTATIONS: AN EVALUATIVE MEDIATION ALTERNATIVE TO CHILD CUSTODY EVALUATIONS’ (2011) 49 FAMILY COURT REVIEW 59, 61 30 Pickar (n 29) 59 31 Pickar (n 29) 32 Ibid 33 Ibid 34 Birnbaum (n 3) 41 35 Birnbaum (n 3) 36 G Bell, The Worried Well: The Depression Epidemic and the Medicalisation of Our Sorrows (Black Inc. 2005) 93 37 C Nader, ‘Child’s view best counter to court cases’ (09 July 2009) THE AGE accessed 02 December 2012 38 Ibid 39 Bell (n 36) 40 Nader (n 37) 41 Parker (n 11) 295 42 Ibid 43 Emery (n 1) 44 Nader (n 19) 45 Ibid 46 Ibid 47 P Parkinson and J Cashmore, The Voice of a Child in Family Law Disputes (Oxford University Press 2008) 1 48 Kuehnle (n 5) 73 49 K Shanks, ‘Child-Focused Mediation’ (kellyshanks.com 2010) accessed 02 December 2012 50 D Davey and C Simpson, ‘What is child inclusive mediation?’ (i-dont.com.au 2012) accessed 02 December 2012 51 Birnbaum (n 3) 52 Ibid 53-54 53 Parkinson (n 17) 2 54 Parker (n 11) 55 Emery (n 1) Bibliography: Bell G, The Worried Well: The Depression Epidemic and the Medicalisation of Our Sorrows (Black Inc. 2005) Bell F, Cashmore J, Parkinson P and Single J, ‘Choosing child-inclusive mediation’ (2012) 23 ADRJ 225. Birnbaum R, ‘The Voice of the Child in Separation/Divorce Mediation and Other Alternative Dispute Resolution Processes: A Literature Review’ (Department of Justice Canada 2009) accessed 02 December 2012. Bowlby J, Attachment and Loss, vol 1, Attachment (Basic Books 1969). Convention on the Rights of the Child, ‘Children’s Rights’ (UN.org 1989) accessed 02 December 2012. Davey D and Simpson C, ‘What is child inclusive mediation?’ (i-dont.com.au 2012) accessed 02 December 2012. Emerson M and Britton D, ‘Involving Children in Family Dispute Resolution’ (Brisbane Mediations 2008) accessed 02 December 2012. Emery RE, Renegotiating Family Relationships, Second Edition: Divorce, Child Custody, and Mediation (Guilford Press 2011). Garber BD, Keeping Kids Out of the Middle: Child-Centered Parenting in the Midst of Conflict, Separation, and Divorce (HCI 2008). Gauvreau D, ‘Mediation versus Litigation: Examining Differences in Outcomes amongst the Children of Divorce’ (Family Law Alternative Dispute Resolution 2012) accessed 02 December 2012. Johnston J, Roseby V and Kuehnle K, In the Name of the Child – a Developmental Approach to Understanding and Helping Children of Conflicted and Violent Divorce (Springer Publishing Company 2009). Kuehnle K and Drozd L, Parenting Plan Evaluations:Applied Research for the Family Court: Applied Research for the Family Court (Oxford University Press 2012). McIntosh JE, Long C and Moloney L, ‘Child-Focused and Child-Inclusive Mediation: A comparative study of outcomes’ (2004) 10 Journal of Family Studies 87. McIntosh JE, Wells YD, Smyth BM and Long CM, ‘CHILD-FOCUSED AND CHILD-INCLUSIVE DIVORCE MEDIATION: COMPARATIVE OUTCOMES FROM A PROSPECTIVE STUDY OF POSTSEPARATION ADJUSTMENT’ (2008) 46 FAMILY COURT REVIEW 105. Nader C, ‘Child’s view best counter to court cases’ (09 July 2009) THE AGE accessed 02 December 2012 Parker S, Family Law: Processes, Practices, Pressures : Proceedings of the Tenth World Conference of the International Society of Family Law (Hart Publishing 2003). Parkinson P and Cashmore J, The Voice of a Child in Family Law Disputes (Oxford University Press 2008) Pickar DB and Kahn JF, ‘SETTLEMENT-FOCUSED PARENTING PLAN CONSULTATIONS: AN EVALUATIVE MEDIATION ALTERNATIVE TO CHILD CUSTODY EVALUATIONS’ (2011) 49 FAMILY COURT REVIEW 59. Shanks K, ‘Child-Focused Mediation’ (kellyshanks.com 2010) accessed 02 December 2012. UN High Commissioner for Refugees, Protecting Refugees; A Field Guide for NGOs (UNHCR 1999) accessed 02 December 2012. Read More