Child-inclusive mediation
Answers to your FAQs…
By Will Story for the Family Advocate, Autumn 2023
Following the implementation of the Family Court (Supporting Children in Court) Legislation Act 2021, children are destined for a stronger voice in Family Dispute Resolution (FDR) mediation in New Zealand.
An amendment to the Family Dispute Resolution Act 2013 which came into force on 16 August 2023 requires that ‘children who are the subject of the dispute are given any reasonable opportunities to participate in the decisions affecting them that the FDR provider considers appropriate’ (see section 11(2)(ba)).
In order to aid the implementation of this legislative amendment, an FDR Child Specialist role has been designed and developed by the Ministry of Justice (in consultation with stakeholders) and is dedicated to helping enhance the FDR service by ensuring that children who are the subject of a family dispute are engaged with in an age-appropriate and safe way. Excitingly for FDR suppliers, recruitment for the new FDR Child Specialist roles is now well underway.
As well as attracting applications from a wide range of experts, advertisement of the roles has naturally prompted some questions from mediators and others both in and outside of the FDR world. Here are some of the common questions which we have received.
What’s changing and when?
Children have always been at the heart of the FDR process. The move to more child-inclusive practice is an evolution of the existing system. The introduction of the new, dedicated Child Specialists is intended to empower more children to have a voice. Their role is to help understand each child’s feelings, views and experiences so parents can keep them front of mind during the mediation. Everyone involved in the mediation process – from the Resolution Coordinator and mediator to the Preparation for Mediation provider and Voice of the Child practitioner – will need to evolve their way of working. You will begin to notice changes around the middle of this year.
Will training be provided?
Yes. The Resolution Institute has been contracted by the Ministry of Justice to provide training on child-inclusive mediation. The training will be targeted at Voice of Child practitioners (VOCs), Child Specialists and mediators alike. Jill Goldson and Robyn Leach have been asked to deliver the training, which is expected to take place in May or June of this year.
How will Child Specialists be distinguished from current Voice of Child practitioners?
Child Specialists can be distinguished from Voice of the Child practitioners by higher levels of training and experience working with children and families than their peers. For example, it is a requirement of the role that the personnel filling it must have a relevant qualification such as clinical psychology, social work, youth work, health, teaching, or human services (Level 6 or above).
Will the new roles replace current Voice of Child practitioners?
Not necessarily, however this may depend on which FDR supplier you work with. The role has been designed by the Ministry to lead existing Voice of Child practitioners; however each supplier may have its own practice needs. At Fair Way, we provide FDR services nationwide so envisage our need will be to continue to rely on our Voice of Child contractors who cover various locations and specific cultural and other requirements.
Will Voice of Child practitioners need to upskill in any way?
Yes. VOCs will need to familiarise themselves with the new Quality Practice Framework being developed by the Ministry of Justice. Suppliers will need to ensure that VOCs have the relevant skills and expertise to continue fulfilling their roles.
Will it be mandatory for all children to participate in every FDR case?
No. Parents or caregivers (and perhaps more importantly, children) will still need to provide their full and informed consent to participating in the process. Child Specialists will also need to make a decision on whether it is appropriate for a child to participate in each case. Age and stage will factor into that assessment.
What happens if parents/caregivers don’t consent?
The Quality Practice Framework which has been prepared by the Ministry of Justice, and is currently in draft form, provides that professionals involved in the FDR process must clearly explain the purpose and importance of the child's involvement in the mediation process and support this with clearly written material at the time. The potential benefits and risks associated with the child's participation need to be highlighted, as well as emphasising the voluntary nature of the process and the child's right to withdraw. Parents or caregivers should be provided with resources for further information or support. If at the end of this process, consent is not forthcoming, it may be possible in some exceptional circumstances for a Child Specialist to proceed to meet with children with only one parent or caregiver’s consent, however there are strict considerations around this.
Do the changes mean that children will physically participate in mediation?
No. It is not usually appropriate to have children present at a mediation. While providing a forum to ensure children’s voices are heard is important, children should remain protected from adult conflict. The responsibility and the decision-making process should remain firmly with the parents and guardians. The Child Specialist will discuss with each parent and child, as well as the mediator, how their thoughts and views will be presented in the mediation. For example, the Child Specialist could join the mediation to share the key themes from their conversation with the child.
How will it change the nature of FDR mediation?
FDR mediation began as a process to assist parents or caregivers to resolve their disputes over the care arrangements for their children. FDR will continue to be a process where parents and caregivers are encouraged to move from blame and the drivers behind their separation towards thinking ‘how can I best support my child through this?”. While it has been optional for parents to include their children’s voices in mediation, developing FDR into a more child-centric process will further empower parents and caregivers to make this shift. One thing that will remain the same is confidentiality. FDR will remain a confidential process, including where children share their views.
If I am a mediator, how will I work with Child Specialists?
Mediators and Child Specialists will work collaboratively. While children are always at the heart of the FDR process, mediators will now have the support of dedicated Child Specialists who they can connect with about cases. When the Child Specialists have been onboarded, we will arrange opportunities so you can get to know each other and facilitate this new way of working.
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.