Mediators should be trained to include children


LEGAL OPINION:My own research in Ireland with young adults whose parents have separated clearly indicates children want matters to be explained to them in a civilised, respectful, age-appropriate way

WHILE MUCH emphasis has been placed on the importance of a referendum on children’s rights in providing an opportunity for children to have their voices heard in Irish family law, the question must be asked whether we are, in the interim, ignoring opportunities to begin to make progressive changes to draft legislation which is now the subject of debate.

If one looks, for example, at the Oireachtas debates following the publication of the General Scheme for Mediation Bill 2012 in March of this year, the discussion has focused solely on the procedural and commercial implications of the proposed Bill for mediators, the legal profession and various interested parties who see an opportunity to gain employment by providing training and information services.

While 11 interested organisations have engaged in these Oireachtas debates, one issue that has not been raised during them by any of the represented organisations is the proposal under Head 18 of the scheme to involve children in family law mediations. Head 18 proposes that if “a mediator considers it appropriate to involve the child of a party directly in the mediation process, the mediator shall:

(a) obtain the agreement of the parties,

(b) obtain the consent of the child, and

(c) provide or ensure the provision of appropriate facilities for involvement of the child in the process.”

The inclusion of this important issue in the draft scheme is to be commended. The provision as currently drafted is of little use to children where the mediator chosen by their parents deems it inappropriate to consult with them in an individual case, but nonetheless it can and should be used as a platform to begin a debate into the role of children within the mediation process.

At present, children have little or no role in the mediation process in Ireland. However, research carried out internationally, for example in Australia, has shown that there are direct benefits in child-inclusive mediation. It is important to clarify that child-inclusive in this context does not mean children sit in on all mediation sessions and witness conflict between their parents. Rather, their views are sought by the mediator in an age-appropriate way and relayed to their parents.

The research has shown children value the opportunity to have some input and to be treated with respect. Significantly, parents who took part in the research indicated the feedback they received from their children had been cathartic in terms of enabling them to reach more family-friendly resolutions.

My own research in Ireland with young adults whose parents have separated clearly indicates children want matters to be explained to them in a civilised, respectful, age-appropriate way, and indicates such explanation and reassurance from their parents alleviates many of their fears and enables them to trust their parents will promote their best interests. The mediation process has the potential to provide a “safe” place to have this discussion.

The impetus from the Government appears to be to promote mediation as a viable, recession-friendly alternative to the court process. Parties are strongly encouraged to consider the process, with on-site mediation being offered in pilot projects such as the initiative run by the Legal Aid Board and the Family Mediation Service at Dolphin House.

However, if we are to comply with the international standards laid down in the United Nations Convention on the Rights of the Child, it is essential that mediators are trained in order that they are competent to facilitate a role for children, and that children are given an opportunity to participate and express their views as part of this process, should they wish to do so.

Therefore, the debate on facilitating the voice of the child in the context of mediation should start now. Issues that need to be discussed include the capacity of children to participate in the mediation process; the age at which it is appropriate to consult them; whether indeed there should be such age considerations at all or whether such consultation should be based on the maturity of a particular child; whether, as suggested by the draft scheme, the mediator should have discretion in this regard, or whether children should be consulted as a matter of practice.

Ensuring children’s voices are heard will not be achieved by one magical referendum alone but by the systematic reform of all legislation and judicial and administrative procedures that have the potential to impact on children’s lives.

CONNIE HEALYis a solicitor and a PhD candidate at NUI Galway