Capturing the child’s voice in mediation – what now?
By Will Story for the Family Advocate, Summer 2023
Family Dispute Resolution or FDR as we know it has had a facelift.
In the FDR process, it has traditionally been the mediator’s responsibility to determine and facilitate an appropriate process to assist parties to reach agreements that are in the welfare and best interests of children[1] – or rather at least their welfare and best interests according to their parents! It has also been up to suppliers to have a robust process for obtaining their views.[2] Since introduced by FDR suppliers in 2018, the Voice of Child model has existed to achieve these ends. This previous methodology of including children’s views is best described as child-informed mediation, i.e. a third party meets with children, ascertains their views and attends mediation as their “voice”.
Since 2018, most FDR mediations have deviated between being child-informed and child-focused where parents/caregivers may have their children’s welfare and best interests in mind but elect not to have a Voice of Child appointed to liaise with their children directly. In these instances, children are not asked for their views and are not present at mediation.
On 16 August 2023 the Family Court (Supporting Children in Court) Legislation Act 2021 (“the Act”) came into effect. The Act includes a key amendment to the Family Dispute Resolution Act 2013 which now requires mediators to ensure that children are given “any reasonable opportunities to participate in the decisions affecting them that the FDR provider considers appropriate.”[3] The change brings New Zealand more into line with the United Nations Convention on the Rights of the Child, to which we are a party.
FDR is therefore set to move from a child-focused or child-informed model to a child-centric or child-inclusive one. In simpler terms, we are moving away from a process centred mainly around parents’ objectives but keeping sight of children’s best interests (often from afar) to one that is focused squarely on children’s needs. But how will this change be achieved, and what will it look like in practice?
Child Specialists
In July 2023 the Ministry of Justice announced that it had secured funding for 8 FTE (full-time equivalent) Child Specialists. The funding is being divided amongst FDR suppliers who will each be responsible for employing the Child Specialists. The Child Specialist role will be a subject matter expert on child inclusion and be responsible for providing mediators with support to ensure that children can participate in FDR in a safe and age-appropriate way. How Child Specialists work for each supplier may vary a little, however key facets of the role are likely to include:
- Engaging caregivers to prepare them and their children for a child-inclusive mediation process.
- Completing an assessment of children’s readiness to participate in the process of mediation (note, this doesn’t mean the children will attend mediation, necessarily).
- Engaging with children to understand their feelings, views and experiences.
- Ensuring children understand the mediation process and their rights.
- Prioritising children’s safety and wellbeing in all interactions.
- Providing specialist support, recommendations, advice and guidance to mediators facilitating child inclusion.
- Deciding how children's views are fed into mediation and documented in a way that meets their psychological needs and socio-legal requirements.
- Representing children’s perspectives and preferences to mediators and caregivers or, where appropriate, supporting children in directly expressing their views in the mediation setting.
The new Child Specialists will need to be suitably qualified with a relevant qualification, for example in child or family-focussed clinical psychology, social work or counselling, educational psychology, child and adolescent mental health or human services. Recognising what’s at stake, the bar has deliberately been set high. The roles are expected to be distinguished from the current Voice of Child practitioner role by a higher level of training and experience working with children and families. The new roles will be advertised by FDR suppliers soon, so watch this space!
Child Specialists and Voice of Child providers will be informed by a quality practice framework containing guidance and tools for use by all professionals involved in the FDR process. As at the time of writing, the framework is in the final stages of development prior to being released by the Ministry. The quality practice framework is being designed to achieve consistency across suppliers and to improve the safety of participants in the FDR process. In that regard it is expected it will be grounded on trauma/adversity and violence informed practice.
Child-inclusive model of mediation
In summary, FDR is essentially moving further away from a model in which parents are given an option to a model which is far more focused on children’s rights. This does create some tension with the traditional, facilitative model of mediation whereby parents are empowered to be the decision makers and are encouraged to design their own process, suited on their own needs. However, it can also be viewed as not so much of a departure from mediation as we know it, but rather an evolution and strengthening of the FDR model and toolkit available to parties in dispute.
The new model of child inclusion will be a central part of the FDR mediation process (if it is not already, for some providers) and while practices may vary a little across FDR suppliers, it is possible that rather than opting in, it will now be on parents to opt out of this part of our service (at least, that is how FDR at Fair Way will be offered). Providing information to parents and caregivers and preparing them for a child-inclusive mediation process is therefore going to be key to converting parents to this new approach.
While the quality practice framework being developed by the Ministry of Justice has yet to be finalised, based on what has been socialised with FDR suppliers to date we know that best practice is likely to include greater interaction for practitioners working with children. This is likely to include reporting to children on more than one occasion (including reporting on outcomes of mediation), giving children the opportunity to provide feedback and raise complaints, as well as providing a clear process for redress of those complaints. Importantly, best practice will also be tikanga and te ao Māori informed.
Over the coming months, the Ministry of Justice has signaled its intent to establish and deliver training to FDR and Preparation for Mediation (PFM) providers, Voice of Child practitioners and Child Specialists alike. As a supplier, we will also be ensuring requisite training opportunities are provided to our own providers.
It is envisaged that by early 2024, the new Child Specialists will have been onboarded by suppliers. This is a tight deadline, and there is some work still to be done. However, when reflecting on the observation made in Te Korowai Ture ā-Whānau, the 2018 report of the independent panel commissioned to review the changes to the Family Court in 2013 that “decisions about children’s care arrangements are decisions made about children not decisions involving children”, we are far closer to achieving something which will effect true change, for the betterment of our children.
About the author
Will Story BA LLB (will.story@fairwayresolution.com) is an experienced family lawyer (not practising) and Operations Manager of Family Services at Fair Way Resolution Limited.
