The Voice of the Child in Separation/Divorce Mediation and Other Alternative Dispute Resolution Processes: A Literature Review


Increasingly, the theoretical perspectives and social science literature demonstrate that the child's voice is an important consideration during times of parental separation and/or divorce. Specifically, participation of children in separation, divorce, child-inclusive mediation, and other ADR processes is positively correlated with the minimization of harm/risk to children post separation and/or divorce. These findings are supported by the empowerment and/or enhancement theories which view children as ‘social actors’ who should be allowed to participate in the decisions that affect them. The importance of listening to children is also premised on rights-based and interest-based ideals, both from a legal standpoint and in keeping with the "best interests of the child" standard. There are some children who want to share their voices in the legal processes that shape and affect their lives when it comes to post-separation arrangements. However, there are also some children who do not want to participate in the process at all and their voices should be equally respected.

In the final analysis, the discussion is no longer focused on if children should participate in the decision making post separation and/or divorce, but rather, how. That is, children who do wish to participate in the decision-making process have an opportunity to do so. However, the question continues to be framed from an adult perspective—that is, how best to obtain a child's view on the issue for use by adult decision-makers, rather than with adult decision-makers. While children require guidance and direction by adults, they also have rights within the family and those rights also need to be equally respected, supported and nurtured.

The methodologies employed on both a national and international level to hear children in the context of separation, divorce and custody mediation and other ADR processes varies in terms of voluntary and mandatory participation requirements and type of investigative approach taken (i.e., child legal representation, child custody and access assessments, judicial interviews, voice of the child reports, child-inclusive mediation, and parenting coordination). While the legal and social science literature debate the pros and cons of children's participation in decision-making during times of parental breakdown, children's participation is not required in all matters, and can be harmful if children's safety is not considered paramount.

There remain a number of questions and challenges that still need to be considered irrespective of which approach is considered. For example, if children are heard, how much weight is given to the voice of the child? Should there be an age at which the child's views and wishes are determinative? At what age should children be interviewed and who decides whether they are competent to provide input into the decision-making process? What does children's participation really mean? How is children's safety being addressed in any of these processes? What methods can be used to ensure that there are mental health professionals, lawyers and/or judges skilled in interviewing children? What about issues of confidentiality and consent? What about children who have learning challenges and cannot express themselves verbally? What about follow-up with children and closure? What about children from different cultural backgrounds where talking about the family and feelings are not part of the culture? What about children and families with different levels of conflict (i.e., low, medium and high conflict families), in situations where domestic violence or child maltreatment is an issue? When should children be brought into the mediation process (i.e., before, during or after mediation has concluded)? Additionally, what should the focus on evaluation involve?—that is, evaluating outcomes that focus on the settlement of a family dispute is different from outcomes that focus on strengthening parent-child relationships post separation. How can adults empower children and facilitate a greater dialogue with children about their lives post separation and/or divorce? Finally, are children's voices being truly considered or are they being filtered through an adult lens about what is in their best interests? These are very important questions to examine as the legal decisions that are being made about children post separation and/or divorce can often change the trajectory of children's lives physically, emotionally, socially, and behaviourally.

While there are many excellent services and programs that have developed as a response to helping parents find other ADR alternatives to their family dispute, they continue to remain fundamentally within the traditional adversarial framework. Moreover, they also do not reach every child equally across the globe.

In exploring where we need to go from here with respect to children's participation, a number of considerations are being put forward for future consideration. They can be conceptualized as falling into three distinct but interrelated frameworks:

First, there needs to be a clear theoretical and conceptual framework that links child developmental theory, risk and resiliency theory and family relationships post-separation and/or divorce with best practice approaches to child-inclusive mediation and other ADR processes. From the information gathered through the services being provided across the globe and from the key informant interviews a sound knowledge base about child development and the evolving capacities of the child, interviewing children, parent-child relationships, and grounding in family law is essential. Additionally, training and education of the different professionals involved with children needs to be ongoing.

Second, there needs to be a coordinated research agenda that links the best practice approaches with an empirical based focus (i.e., using an array of quantitative and qualitative methods). Exploring outcomes must also include strengthening parent-child relationships and not just whether the dispute settled or not. Moreover, any research that is being considered must also include children's participation in the design, implementation, and follow-up of the different approaches. That is, "we" (adults and children) need to understand what works and what does not work for children and their families post separation and/or divorce while maintaining a clear focus on children's safety as the first priority. Each child is unique and a research agenda that incorporates a range of alternatives for children, by children, and with children that honours their "voice" is essential.[85]

Third, there needs to be ongoing discussion and coordination between practitioners, researchers, children and their families, as well as policy-makers if children's participation is to be meaningful. If children's participation is to be a truly democratic process, then they must be considered at every level of engagement. With this shift in thinking and approach, children can then be more firmly embedded in the process and their needs and interests will be informed by them, rather than by adults who presume to know what is in the best interest of children.