In our previous post, we reviewed the traditional view that children should be represented by the guardian ad litem in the litigation process and by the parents in the mediation process. In this post, we discuss whether children should have a greater role in the mediation process.
Because mediation takes place out of court and in more casual and conflict-free settings with parents who already believe they can work together to resolve their issues and amicably bring an end to their marriage, some experts and legal observers feel that allowing children to have a voice in this process will help them feel that their wishes will be heard if not necessarily respected. It may also help the children have a greater understanding of the nature of the process and see that their parents, while looking to a future of separate households, will remain united in loving and caring for the children. Participation thus reduces anxiety and eases the transition to life after divorce by allowing the children to voice their views about how that post-divorce living arrangement should be structured. Also, children may raise key points parents forget, whether a scheduling issue with extracurricular activities or having a certain level of clothing or toys at each house. Children who can understand their parents are getting a divorce and can express their opinions should be heard – so this theory goes.
However, while having this level of input seems valuable and even healthy, it turns mediation into a different process that some, if not many, mediators may not have the training to handle. Helping a child transition to life after divorce generally falls under the role of a therapist, not a mediator. And having a mediator take on roles of a guardian ad litem pushes the mediator into an advocacy position rather than remaining a neutral. If the children do not get their wishes represented in the parenting plan, will they feel resentful? Will they feel less obliged to follow the parenting plan? Can a process of input open a Pandora’s box of problems for the parents after mediation? One key reason we leave children out of the decision making process is that they have not yet developed to a point where they have the maturity to participate in the process and accept the outcome, which may well be a compromise. Some psychologists may believe children have stronger resiliency and awareness than we realize, while others see only a mistaken belief that every difference with a parent can become a negotiation.
As you can see, the prospect of incorporating children into the mediation process, while appealing in some respects, remains fraught with difficulties. Could some children have the maturity to benefit? Certainly. But can the process select which children can in advance? And should the role of the mediator as a neutral be challenged by having to deal with the negotiated interests of the children as well as the parents? What if the children begin to argue with the parents and cause the mediation to collapse and go to court? Can children psychologically handle making choices that could hurt one parent?
We imagine that as collaborative law continues to grow some will try and incorporate a more active role for some children in the process. As this happens, however, lawyers and legislators will have to carefully consider the issues of the manner of participation, especially with regard to actual decision making by children. In the meantime, lawyers and parents will continue to help the traditional process of mediation take more seriously the concerns of the children in terms of making a smoother transition to life after divorce.
If you have questions about children and their role in divorce mediation, contact us – we can help.