Giving children a voice in mediation provides clarity

By Staff

Including the voice of the child in mediation can shed light on how they feel about certain parenting arrangements — without going through the expensive process of a full custody and access assessment, says St. Catharines family lawyer Sharon Silbert.

“It can be a tool to help get through an impasse in discussions about parenting-related issues where each parent has a different perspective on what the kids themselves think or how they feel,” says Silbert, principal of Sharon B. Silbert Professional Corporation.

“It’s not uncommon for children to say different things to each caregiver as they can be very sensitive to what is going on in their parents’ lives and don’t want to disappoint them.”

Since mediation is not about making rulings based on facts, like the judicial process, incorporating the voice of the child is one way to help solve differences that might otherwise require a weighing of evidence outside the court, Silbert tells

“Sometimes, one of the obstacles to a settlement can be a difference of opinion about what it’s going to be like for the child and what they would prefer,” she says. “The obvious solution would be to get some real feedback rather than speculating, as long as it’s done in a way that is sensitive to the child’s need, takes their age and stage of development into consideration, and ensures they are not placed in a loyalty bind.”

The clinicians who conduct the interviews are usually social workers and ensure the child knows they’re not being asked to make the decisions, Silbert adds, but rather contribute their views.

“They are often professionals who have done work for the Office of the Children’s Lawyer, so they have the training and experience of working with children in situations of separation and divorce” she says.

While there are many similarities between using the voice of the child in mediation and the court process, the most common difference is the report’s scope, Silbert says.

A full custody and access assessment, including a report on the child’s views and preferences, as well as clinical recommendations, can cost tens of thousands of dollars, she says. “But it may not be necessary in every case.

“In alternative dispute resolution process, such as mediation, there’s more flexibility to incorporate informal feedback and less in-depth investigation based on the circumstances,” Silbert says. “Not every situation requires a comprehensive assessment. A less formal approach can still allow for helpful information to be brought to the attention of the parties, and can do so in a way that is more affordable.”

In the context of mediation, both parents must agree to include the child’s voice in the resolution, she says. This can be done either by having the child sit in on group discussions, or more commonly by gathering the child’s feedback in a one-on-one setting, either by the mediator or by a specialized clinician.

Silbert says including the child’s perspective is an important principle of family law. According to Article 12 of the United Nations Convention on the Rights of the Child, children with sufficient maturity must have the opportunity to be heard when courts or tribunals are making decisions that affect them.

The process, however, is not embraced by all parents. For example, parents may raise concerns if they are worried about the child being stressed when meeting with a clinician, she says.

“Sometimes parents are really focused on the adult perspective and don’t see the value of getting their kids’ feedback,” Silbert says.

“Ultimately, most people just want to do what’s best for their kids, but it can be really challenging to know what that is. When there is so much uncertainty, transition, and emotion, engaging a neutral third party to identify and articulate the children’s views and preferences can be extremely useful in determining the kind of outcome that would be in their best interests. It’s also not overly expensive and is more efficient than some of the other processes.”