The vaccination debate between legal guardians: to mediate or not to mediate? An opinion from a mediation supplier

Written by Will Story for the Family Advocate, Winter 2021

There is a new Covid-related issue surfacing in the family dispute resolution (FDR) world. With the launch of the Trans-Tasman bubble, many families are chomping at the bit of an overseas escape. In the context of an ongoing global pandemic, with overseas travel comes risk. As we well know, parents (separated or happily together) can have very different comfort levels when it comes to risk. The prospect of overseas travel and vaccinations (both being decisions requiring legal guardians’ consent) are quickly rising to the top of the agenda in family disputes.

What if, for example, Mum wants to take young Jimmy to Sydney to visit his stepsister who he hasn’t seen in over a year, but Dad doesn’t agree it is safe? Or perhaps Dad requires little Jimmy to have a vaccination first, but Mum is not convinced in the merits of vaccinating? Such a vexed moral issue, part of a much-wider polarising debate on vaccinations begs the question: should parents give FDR a shot (so to speak)? There are several issues which clearly arise for contemplation. Where parties are entrenched, is compromise even possible? (Purist mediators would wash my mouth out with soap!). How does a mediator move parties beyond impasse on moral issues? Should mediators be putting any disputes concerning vaccinations in the too hard basket? This article will consider these issues without verging into the vaccination merits debate itself.

While on the face of it the above musings are new considerations for us here in Aotearoa, there is precedent around the globe and thankfully many overseas mediators have already made headway in this territory. Furthermore, while the Covid vaccination may be today’s hot topic, in many ways it is no different to the issue of child immunisations which have been effectively resolved in many a family mediation.

As a colleague in the UK has discovered, mediation can offer a very effective solution to parties in dispute over whether to vaccinate. How, you ask? In looking at successful mediations abroad, it is clear that the same core ingredients were in the mix at each successful mediation: an ability and willingness to listen coupled with an understanding of the need to make a decision. But those two ingredients are not always easy to come by.

Two cases I am aware of reached a decision unanimously, although in both of those cases the decision did not accord with one party’s personal views. In other cases, the parties agreed that someone else would make the decision for them. The consistent theme of all is the skill of the mediator (and professionals involved in preparing the parties for mediation) in guiding the parties towards a position whereby they were able to put aside their own differences and animosities towards one another (manifested by their entrenched positions) to focus squarely on co-parenting responsibilities.

Parents have an obligation to make decisions. Nothing new there. It is always useful when making decisions affecting children to step back to assess what are the needs of this particular child? What is ultimately in the welfare and best interests of the particular child in his or her circumstances? That last inquiry is, in fact, the legal threshold. The reality is that no matter whether you are pro or anti-vax, or pro and anti-immunisations, it will be the parents who know the child best. The parents are in the supreme position of knowing the health needs of their child. And if they don’t, the child’s general practitioner is very likely to have an informed view on it. Encourage parents to make the most of the medical experts on our doorstep. Resist relying on Dr Google and the various conspiracy theorists who pervade the worldwide web.

Family lawyers and mediators can help to spread these messages. Vocalising such thoughts will not jeopardise mediator objectivity. It does not push the vaccination cause one way or the other. It is simply sensible to make parents aware of the supports which are available to them in making their decisions. Despite their responsibilities, parents do not need to do it solo. The beauty of the mediation process is that it underscores this theme: a skilled professional is ready and willing to help facilitate discussion between them and to support them to obtain the information they need to reach a decision.

The Family Court has been faced with making decisions where legal guardians can’t. Cases to date would tend to indicate that Judges are naturally drawn towards making decisions that reflect local (as opposed to international) expert medical advice. Lawyers advising parties on guardianship issues have a role to play in arming parties with the information which they need to make their decision. Such information, in my view, should include these recent decisions. Relying on the Family Court to make a decision when parents can’t comes at significant expense and delay, and should be avoided wherever possible.

As this article traverses, mediations focused on vaccinations are no different to any other mediations despite the somewhat polarising nature of the subject in dispute. Mediation magic in action is all about empowerment.

FDR provides parties with the perfect opportunity to explore misgivings which either parent may have as to vaccinations or overseas travel. A successful mediation does not necessarily mean that parties leave the mediation table having made up their minds or made their decision - simply that they have the support to make a decision. Whether it is agreement on the next steps of the decision-making process or simply agreement to respect one another’s views, the co-parenting relationship has thereby been strengthened moving forward.

Mediation does have a role in the great vaccination debate.

About the author

Will Story BA LLB is Operations Manager of Family Services at Fair Way Resolution Limited.

Before joining Fair Way, he was a practising Lawyer with significant experience in family law, property law and general practise (both in Hawke’s Bay and Wellington).

If you would like to get in touch with Will, please contact him by email at will.story@fairwayresolution.com