Bella writes about the importance of Child Inclusive Mediation for HNW Divorce magazine
Bella featured in the HNW Divorce magazine essay competition, discussing the positive impact that Child Inclusive Mediation can have on resolving financial disputes. Read the full article below to understand why we always recommend to involve your children as part of our Civilised Separation service:
Resolving matrimonial finance matters in divorce can be dependent on the attitudes held towards the marriage itself and how it came to end. All too often, separating couples are fuelled by negative memories and opinions of one another, potentially clouding their judgement and making financial decisions harder to resolve.
High net worth (HNW) divorce cases are at risk of taking longer to settle, with dividing assets, properties, and pensions all at the forefront of the client’s mind. They may consider mediation before heading down the legal route. Predominantly, mediation only involves children when the parents or mediators see a specific need for it.
They may feel that involving the children might complicate things or that the child may come away from the experience feeling regretful. This perception is problematic because child inclusive mediation (CIM) has the potential to heavily influence the parents’ future relationship, and therefore financial matters. When the children are seen, and the interview is carried out carefully and attentively, the information gathered will have a positive effect on the parents, helping them to feel more compassionate towards one another. The mediator can use this opportunity to remind the parents of what should take priority in all family matters, whether they are a couple or not. Once the parents return to a more positive state of mind, they can communicate more collaboratively, and the discussion of matrimonial finance becomes easier. Reform should be asked for by mediators as well as lawyers, barristers, arbitrators, and all professions involved in family disputes. CIM should be encouraged in all mediation cases, regardless of the reason the mediator was consulted in the first place.
For mediation, CIM should be a service that clients opt out of, rather than opt in.
As Lady Hale made clear during the law commissions Scarman Lecture in 2019,
“There is a growing understanding of the
importance of listening to the children
involved in children’s cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a view that is quite distinct from that of the person looking after them. They are
quite capable of being moral actors in
their own right.”
Considering the strong emotions around divorce, it is unsurprising that mediators might be cautious to discuss the existing relationship between their clients. Two people, who at some point created a life together and started a family, are now facing the painful process of separation.
They often arrive at mediation with a whole range of personal problems including loss of identity, isolation, disbelief, anger, and an inability to parent the way they would have wanted. Mediators will often divert attention away from their emotional experience, and instead focus on the practicalities of separation. In some cases, clients may feel that their mediator considers their narrative to be unimportant, and the mediator might advise counselling.
The issue with this process is the likelihood that clients end up in court because the mediator has appeared to be indifferent to their feelings. As an alternative, mediators could allow for more therapeutic techniques to take place. Many mediators base their methods around The Mediation Handbook (Georgakopolous, 2017). his handbook encourages expertise in justice, peace, and conflict resolution. Engagement and connection are the missing links in the mediator’s approach, which results in the clients proceeding to take their matrimonial issues to court. In this case, mediators have failed to give the necessary attention to the client’s personal experience. An effective way to connect with clients on a deeper level, is for the mediator to expand their knowledge on attachment theory and early-developed coping mechanisms. The clients will have learnt unconscious templates on how to be in a relationship, and they will have developed these throughout their childhoods, whilst observing their own parents. CIM is a very useful tool when broaching these concepts with clients. Mediators can use their interview with their child to shape the theme of the mediation process with the parents. It is highly likely that the clients will be portraying their unconscious templates to their own children, and mediators can highlight these during the feedback session.
By becoming more knowledgeable on peaceful outcomes and conflict resolution, the mediator can themselves, become more open-minded when considering the involvement of CIM. Unfortunately, where there are impacts of divorce on parents, the children experience mistrust, confusion and guilt.
They may begin to turn their focus inward, and this is something the mediator can rectify by encouraging the parents to allow their children’s voice to be heard.
Children are far more aware of conflict than parents and meditators give them credit for. As discovered during the Still Face Experiment (Barbosa, Beeghly, Moreira, Tronick & Fuertes, 2018), children begin developing their relational skills from the age of two to three weeks. After involving CIM in their practise, mediators can discuss their knowledge of the child’s current relationship schema, which has developed as a result of observing their parent’s conflictual relationship. As the parent becomes more enlightened to the detrimental effects occurring for their children, they begin to shift in their mental state. They become more empathic towards their ex-partner. This is the state of mind the mediator should encourage, as now they can begin discussing matrimonial financial matters with a more collaborative view of the future. This is why CIM is so powerful, and why it should be advised in all mediation cases.
Currently in mediation, CIM does not hold the same weight when compared to financial or child arrangements. Mediators who are working towards accreditation (WTA) are not even able to train as a child inclusive mediator until after their three-year training period. During that time, they must focus their attention entirely on assisting parents with the logistics of separation. How assets are divided fairly, who will keep the family home, who will have the kids over the Christmas break. Understandably, clients become frustrated when discussing these arrangements. This is because they are going through a divorce, one of the most emotionally damaging experiences a person can have. Why then, are mediators not firstly concerning themselves with the existing relationship between their clients? Of course, it is important to discuss practicalities. However, it should not stop the mediator from exploring how the relationship can evolve into a healthier one.
Financial arrangements, child arrangements and CIM should all play equal roles in mediation. The Perfect Trio of services, all as important as each other, and the most effective way of reaching successful outcomes for separating families.
There appears to be a perspective in mediation that CIM is damaging for children. That it could expose children to conflict unnecessarily, or that CIM could bring about unrealistic expectations for the child. The parents might be pressuring their children or coaching them. These concepts are problematic because they are a result of poor CIM practice, rather than CIM itself.
Angela Lake Carroll explains that, whilst in mediation with parents, ‘it is unlikely to be helpful for your children to be offered the opportunity to talk with a mediator if there is a lot of conflict between you’. In fact, interviewing the children with the knowledge of the conflict that exists between the parents, is very useful. Mediators should be helping parents develop a healthier co-parenting relationship, and discussing the conflict is the first step in achieving that. Once the parents manage to divert their energy towards a more constructive family unit, the mediators can start discussing the logistics of their matrimonial financial issues. Simply put, the craft of CIM needs more attention.
Mediators should believe in the necessity for involving CIM, and that it is an equal contributor in the Perfect Trio.
During the CIM session with the children, the mediator will direct the conversation towards the parents’ relationship. In this instance, the children might shift in their body language. They may harden up and begin responding with one-word answers. These indications can enlighten the mediator to the child’s attachment style. They may be worried about sharing too much and putting strain on their parent’s relationship, essentially, putting the wellbeing of their parents before their own. The child’s tendency to dampen their experience is representative of an avoidant conflict style, where the individual chooses to avoid conflict at all costs, because they do not have the relational capacity to handle themselves in an argument (Cann, Norman, Welbourne & Calhoun, 2007). The parents should hear this during the feedback session. All parents want their children to have successful, romantic relationships as adults. How the mediator connects with the child will determine how credible they seem when feeding back the information to the child’s parents. Every child is unique and will have certain traits that highlight their self-identity. They may have an eccentric dress sense, they may describe their thriving social life, they may talk about their hobbies. The mediator should describe these traits to the parents during the feedback session. It will fill them with confidence that the mediator understands their child on a deeper level. After the mediator has described the child’s individuality the parents should be praised.
The mediator focuses on the uniqueness of the child and then lifts the parent’s spirits through admiration for what they collectively achieved as parents.
Praise is important because the parents will be anxious about what came from the CIM session. They have already taken a brave step in trusting the mediator to interview their child, and this should also be highlighted. When parents feel the mediator truly understand their children, and are made aware of their child’s current attachment style, they will reflect on how their conflictual relationship has impacted the entire family. They may become more willing to cooperate with one another, regardless of the matrimonial issue.
Reform, when considering matrimonial finance, needs to occur in mediation. There should be a stronger focus on the importance of CIM and it should be delivered appropriately. WTA mediators should be able to train in CIM earlier on in their careers, and the outdated ideology that CIM is something to feel intimidated by, needs to change.
CIM should hold the same importance as financial matters and child arrangements. If Mediators can adopt the mentality of the Perfect Trio, there will be far more matrimonial financial matters settled in mediation, not in court.
If you are interested in finding out more about Child Inclusive Mediation, check out our FAQs or book a consultation.