Family Law

Gillian Krajewski, Mediator

Minister of State for Justice and Civil Liberties, Simon Hughes, gave a notable speech at July’s ‘Voice of the Child’ conference, convened by the Family Justice Young People’s Board. Why notable?

First because Simon Hughes actually mentioned mediators and mediation - several times in fact, which is not something I’m used to. Secondly, I think, that we mediators were invited to contribute, too. The Minister said: ‘[I]t is at the moment less clear how children and young people are involved in other processes, such as family mediation. That is why I have announced the policy of involvement in the future in mediation and other out of court processes too.’ He went on to say, ‘We will also work with the mediation sector to arrive at a position where children and young people of 10 years old and over have appropriate access to mediators too in cases which affect them.’National Family Mediation mediators and others, have been listening to children and young people in mediation for many years. We don’t do it often enough, that’s for sure, but it is happening and here’s one of the ways how.

My approach to listening to young people in mediation departs, in some ways, from standard models and I am interested to hear feedback from anyone, and particularly from young people as well as mediation practitioners, about how this approach could be developed or improved. Here it is, in broad outline:

Step 1 – Parents are working well in mediation. 
Method – Parents have had at least one joint, face to face mediation meeting where they have reached or are working towards agreement on some issues.
Rationale – there is little point inviting a young person to mediation if there is no mediation. Parents have to do their part and demonstrate a willingness to work together on resolving, in a future focused way, the challenges which the family and its members face. In my personal view, it is disrespectful to invite a child into mediation, to take the trouble to share his/her views, if the adults are not themselves ‘stepping up’.

Step 2 – Check: are these parents really ready and willing to hear their child/children’s views?
Method – I’m likely to ask parents what might they hope their child/ren would say as well as what they might be afraid of hearing? I am sure to book and secure a follow up meeting with the parents within a week or so after the consultation with the young person has taken place for them to discuss and process any messages.
Rationale – If parents aren’t ready to hear the worst, as well as the best, from their child, then let’s not invite the child under the pretence that their parent is willing to hear their views, whatever those views may be.

Step 3 – Find out more about the child(ren) from their parents.
Method – Some questions I might ask: what’s s/he like? What’s s/he in to? How would s/he describe her/himself? What does s/he enjoy, not enjoy. How might s/he feel meeting me here if s/he decides to come? Are there things you think I should know that could help her/him to speak freely?
Rationale – I capture this information so it can be shared with the young person(s) at the start of their meeting so they know what’s been said about them in mediation (and can correct it if they wish). This information can also potentially help me in connecting, knowing what kind of things – books, snacks, magazines, toys – I might have around in the room.

Step 4 – Invite the young person(s) to take part (and plan logistics in some detail).
Method – I usually discuss the best approach with the parents and tend to send the child/ren a letter or email. Often, this letter or email is from me but is sent to each parent to share with the child.
Rationale – I’d like the young person to have a direct invitation from me and for each parent, where appropriate, to be able to support their child in deciding whether or not to come.

Step 5 – It’s OK not to take part. Sometimes children say thanks but no thanks.

Step 6 – Hold the meeting involving the young person.
Method – It is here in particular that my approach seems to depart from more standardised practice. Both parents come to the meeting with their child/ren. With the parents and children all in the room together, I reiterate: that the parents have assured me that their child/ren will not be ‘in trouble’ with either parent for anything they do or don’t say, right Mum? Right Dad? I say that, whatever the child/ren choose to say today, they are completely free to change their minds tomorrow, next week or whenever they want to and check this is understood and agreed by all. I explain that I will not share anything with their parents unless they specifically want me to (and cover risk of harm exceptions). There are other things I do here to set the scene but these are key things – I then invite the parents, with the young person’s permission, to leave the room and wait down the hall separately or together, depending on levels of conflict.
Rationale – A key aim is for the consultation with the young person(s) to be the start of something much more important, a process in which all family members listen to what matters to the others. My view – and that of mediation, I think – is that, if one person in a family is not happy with the arrangements then the family needs to take a look at those arrangements and re-arrange them so that they are OK for everyone. Having Dad and Mum present for the consultation, having Mum and Dad show they are serious about agreeing a way forward by requiring that they are ‘working well in mediation’ before including a child in that mediation, is a chance to do this openly. It’s a chance to demonstrate to the young person(s) that their parents want to know, care to know what they think and feel, not just today on the day of the mediation consultation but every day going forward.

Step 6b – The meeting with the young person alone/with siblings/both
Method – Listen. Agree what, if anything, the young person(s) wants to feed back; agree who will feed back and how
Rationale – I’m there to listen and seek to understand. I’m curious; I’m there to figure out how I can help get any messages to where the young person feels they need to go, so I’m there to listen.

Step 6c – The feedback to parents
Method – Parents invited to return to the room with the mediator and their child/ren. Feedback is given, either by the young person(s) or by the mediator as agreed with the child/ren. The child/ren are normally in the room too (their choice). Check that the feedback has been clearly received but it is not discussed at that time. Ideally, if possible during Step 6, get some feedback from the young person(s) about how they’ve found the mediation experience to be. Children leave in the way that was arranged and agreed before the consultation. They are clear that their parents have agreed to return to mediation to discuss any messages and decide about next steps.

Step 7 – Joint Mediation meeting following the consultation
Method – normal mediation meeting: future focused, aimed at reaching workable agreements regarding raising/care of the child/ren and incorporating wishes, views, concerns, questions of the young person(s).
Rationale – the child consultation is in the framework of mediation. The mediation continues, aimed at reaching agreements which take into account the views of the people upon whom those agreements will likely have the greatest impact.

A child may, in theory, come back into the mediation process at any later date – although this has happened only once in my practice, where a 13 year old wanted to come back 6 months or so after her parents had put in place an arrangement based very much on her wishes. She returned because she wanted to tell them both that she felt ‘shipped like a bag’ between the two homes and wanted to make some changes. Her parents listened and subsequently decided to amend the arrangements in some key ways.

In my mediation practice, I’ve met with 32-year-old ‘children’ invited to their parents’ mediation, as well as some ‘children’ in their 20s and some – one amazing 9 year old I recall whose participation, after years and years of court battles, transformed the relationship between her parents – under the age of 10. In fact, I recently wrote up a case study about a 2-year-old child whose voice was heard through the medium of mediation, which you can read about here. 

Much of my mediation work involves financial matters, including international pensions and property; trusts; maintenance disputes and so forth. Mediation involving children is not the preserve of mediators with a counselling qualification, certainly that’s not my background. But just as child only mediators have had to learn how to do finances too, it’s my belief that financial mediators need to step up to include children’s voices and that this can be achieved with proper training and support and by their using a model that is right for them – not necessarily this one by any means.

So, Simon Hughes – we’re here already, mediators who can and do listen to young people and I’m hugely grateful to now have our voice included in your forward thinking plans.