Voice of Child Specialist involvement from the perspective of the mediator and the VOCS

This article was originally published in The Family Advocate, Volume 21, Issue 2 - Written by Kate Lash

As a practicing Family Dispute Resolution (FDR) mediator and Voice Of Child Specialist (VOCS) with FairWay Resolution Limited, I have had the benefit of seeing this new VOCS role in action from both sides of the story.  A VOCS won’t be necessary in all FDR mediations, but in many it can be helpful, influential or even pivotal.  I have covered several case studies below for an insight into the process.

From the VOCS perspective

I was asked to be the VOCS in a matter where the mother and father had recently separated and had not yet moved into separate houses.  They were very focussed on who should move and why and were still reeling in the hurt of the separation.  Their 9-year-old son was caught in the middle of them both.

Thankfully, although they were both dealing with their own hurt and anger, they agreed that a VOCS was needed. I met with the wee boy in a private space at a local café. His father was in the car just outside and the boy knew he could go out to dad whenever he liked. We had some food and I brought out my “bag of tricks” (bag of things kids can fiddle and play with) so he didn’t have to look at me when he talked. We had a casual conversation about sports, books, computer games for a while until he himself brought up that he couldn’t bring his friends home from school. That led into what was going on for him at home. He let me know how his parent’s conflict was impacting on him on a daily basis.

I could then take back to his parents the actual consequences for their son of how they were dealing with each other. I attended the first hour of the mediation to explain their son’s views. He couldn’t bring friends home for fear they would see the arguments. He couldn’t hang out with just one parent because the other one would get upset. He couldn’t go out with one parent because the other one would be upset. He forgot things from home when he was going to school because no one was helping him to remember what he needed to take. He couldn’t relax at home because he didn’t know what was going to happen next.

The explanation of this to his parents helped them see that the way they were dealing with their separation was hurting their son. Starting with this at the beginning of the mediation helped them keep the focus through the mediation (so I was subsequently told by the mediator) on their son and resolving this in a way that supported him. It put things into perspective for them. They were able to agree on a way forward with new homes that met their son’s needs (as well as their own) and importantly they realised they had to work together to get through this. They agreed to go to communication counselling and to meet regularly to discuss their son and how he was coping. A positive result from a previously toxic situation.

In another situation I used the flexibility that mediation has for families as opposed to what they experience in the true legal system.  The family were mediating over the care of their two younger children (10 & 12) but they also had a 16 year old daughter. Clearly the courts would not be intervening in the care of a 16 year old, but in this situation the father was trying to direct what she did. Both parents agreed that some of my time should be spent meeting her and ascertaining her views, which I did at her school.

It was a really worthwhile process as she had desperately wanted her father to understand some things that she felt she hadn’t been able to say to him (they were not on speaking terms). She also felt that it was important she be considered in this process as the mother was relying on her to look after the younger two when the mother was at work. She needed to be able to express how this impacted on her. She also had views on how the younger two were coping because they had a close relationship.

To be able to give the parents all this information was of great assistance to their mediation. It was as though they had all the pieces of the puzzle so they could clearly see how to put it together. They would not have got this if they had gone through court as they had both been threatening each other to do. Importantly the 16-year-old felt a part of both families, and that she was valued and respected.

From the FDR provider’s perspective

I had the privilege to mediate a dispute between separated parents about which college their son should attend the following year and why.  The son had visited one school with his father and been very enthusiastic about attending while he was there with his father. He had conversely told his mother that he wanted to attend a different school, where his siblings went.

The mediation occurred in an area where FairWay did not have any VOCSs, so I through my own contacts, reached out to a local Lawyer for Child. I explained the role to her and asked if she would be interested. She was. We discussed the parameters of the role and agreed on the best use of the three hours available for this process.

The VOCS met with the son for an hour and talked to him about everything going on in his life in terms of his care arrangements and family life, and also the issue of his college education. He was able to clearly tell the VOCS why he wanted to go to his chosen college and how it would be for him if he didn’t. This also fed into some other issues at home that were making him unhappy. He felt safe in this process as I had also requested the parties to explain to him the following three points:

He would not be told what to say at his meeting with the VOCS, he was able to say anything he wanted to the VOCS without worry that either parent would be upset.
He would not be questioned after his meeting with the VOCS about what had gone on, but of course he could talk to either of his parents about it if he wanted.
Whatever the VOCS brought to the meeting in terms of his views was ok. His parents would consider it, but they would make a decision at the end of the day. Whatever the VOCS said to them was ok and he would not get into trouble for it.

The VOCS attended the beginning of the joint mediation meeting. After my opening, she explained what the son had said to her and then answered the questions the parents had. She was able to frame his views in a way that was clear and neutral, and in a way that did not cause the parents to become defensive. Importantly, she explained things to them in a way that the parents were able to hear.

The VOCS also had some other views from the son about the current care arrangements and the way the parents were interacting with each other (matters that were also being mediated).

From my viewpoint as a mediator, I could see a real shift in the dynamic. The parents went on to have a full and interactive discussion and came to an agreement that took into account everyone’s interests to varying degrees and was likely to be sustainable.

I had another situation where a teenage girl had not seen her father for over a year when previously she had been in the shared care of her father and mother.  The father wanted her back in shared care and the mother was torn as the daughter had told her that she didn’t want to see her father again.

The VOCS used a similar approach to the above and met with the daughter for an hour and a half. The daughter was very emotional in the meeting but happy to be able to give her views in a safe way.  She explained what she would be comfortable with and what had worried her. Importantly she wanted a little bit of control in the process.

When the VOCS explained this to the father he was able to see that by giving her a bit of control, she was more likely to come around and spend time with him. The daughter hadn’t been able to say what she had wanted to her parents directly because she always got upset and emotional when talking to them directly and it didn’t come out the way she wanted it to. By having the space to give her views this way, they got heard by her parents and could be acted on. The agreed plan was set up to support the relationship of a father and his daughter.

Conclusion

I strongly believe in the value of this process for families, and most importantly children. At FairWay we are dedicated to supporting the whole family through their journey, not just the parents.  It is essential that the VOCS acts in a safe and supportive way which is why all the FairWay VOCSs are specifically chosen for their expertise.

FDR is available to families even if they have commenced the court process.  In fact, under the MoJ Operational Guidelines, if they are directed by a judge to attend FDR they can access an additional 12 hours of FDR services in 12 months.  Lawyer for child can be a directed to attend or parents can elect to involve a VOCS.

If you have any questions about the policy or process, the FDR process or if you are interested in becoming a VOCS for FairWay, please do contact us.

Email: fdr@fairwayresolution.com
Phone: 0800 77 44 20

About the author

Kate Lash has been a family court lawyer for a number of years and is currently specialising in dispute resolution. She is an accredited mediator with AMINZ, Family Dispute Resolution practitioner and Voice of Child Specialist. Alongside her family services mediation, she is also practicing as an adjudicator. Within FairWay, Kate is a Duty Mediator in the Family Dispute Resolution Service. Kate practices primarily in the lower North Island.

Whilst in legal practice, Kate was an appointed lawyer for child and acted for children in a variety of cases. She trained at a post graduate level in children's issues in particular, focussing on the impacts on children within conflict.

Kate has extensive experience working with sufferers of family violence and  understands the wide reaching and varying effects of family violence. Throughout her career she has worked closely with various women's refuges and other community organisations.

Kate is passionate about supporting parties to create, and own, their own resolutions. Because she has practiced as a litigator for a number of years she is well aware of the potentially destructive impacts of the court environment and as a result is motivated to assist parties to communicate creatively to identify lasting solutions. She assists parties to think creatively and holistically about potential answers on a broad range of issues.