A study conducted over one year with 142 families funded by the Australian Government Attorney-General’s Department[i] compared outcomes for separated parents who attended child-focused as compared to child-inclusive mediation and made significant findings in relation to the differences between the two forms of mediation[ii]. Though families that entered either child-focused or child-inclusive mediation both reported a very high level of acrimony with their former spouses, interestingly there was still a good retention rate overall (75% for children and 83% for parents) and there was an enduring reduction of conflict and children’s distress reported in the year following either form of mediation which speaks to how useful mediation really is in parenting disputes[iii].
The study found overwhelmingly that the inclusion of children’s perspectives and wishes in mediation had distinct advantages in creating favourable parenting outcomes, and it paves the way forward to more stable post-separation parenting using the Child-Inclusive Model. The study also highlighted the inherent two part question that is being asked in current FDR research today, moving beyond whether or not mediation is successful in family law broadly and towards an investigation of which forms of mediation are most successful, and in which circumstances mediation is most appropriate.
The study took the form of a comparison between child-focused mediation which was concerned with “the psychological and relational elements” of separation and “the making of parenting arrangements that would best support the developmental needs of the children”[iv] and child-inclusive mediation which went further to also include “assessment of children’s experiences of the separation and of their relationships with each parent” [v], including careful consideration of the children’s material in negotiation with parents.
The study also found a noteworthy improvement in outcomes for fathers in the child-inclusive study group including from the father’s perspective lower acrimony towards the former spouse, an improvement of joint parenting, and increased emotional availability and closeness for children[vi]. In addition, the child-inclusive group found greater stability in parenting despite comparatively lower overnight time spent with fathers, greater durability and workability of agreements, and a 50% reduction in the instigation of Court proceedings in the year following mediation[vii]. There were also positive findings for mothers including an overall improvement of the mother-child relationship from the perspectives of both mother and child[viii]. Perhaps most importantly, the impacts on the children of child-inclusive mediation included greater contentment with parenting arrangements and less desire to change these[ix].
Certainly, the results found mediation generally had positive effects on Family Law outcomes in parenting, however the increased success of child-inclusive practice reveals that significant improvement in Family Law mediation success can be achieved by making relatively discreet changes to the mediation process. In that regard, there were a number of factors which were found to have contributed to the greater success of child-inclusive practice, including the intimacy of the material created by the children discussing their needs, the family separation and the relationship with both parents. These provided a wake up call for parents, and reflective participants were more able to alter their behavior and attitude in a “direct, compelling and impactful” way[x].
In comparison, child-focused mediation practice involved discussions that were relatively ‘generic’ in relation to the children’s views, and in this environment the assumptions each party had about the children’s relationship with each parent went largely unchecked. It was significant therefore that fathers were more responsive to child-inclusive practice where the focus was on the children’s wishes, and less importance was given to the mother’s views, as follows:
“Through the father’s eyes, [child inclusion] often functioned to remove the mother from the psychological role of “gatekeeper” of the information about their children…. this created the experience of a more level playing field”.[xi]
In fact, where the children expressed their views and preferences during mediation parents were then more able to listen and agree to ‘developmentally correct’ agreements rather than to continue push for their “equal share” of time with the children[xii].
Significantly, the inclusion of children as participants to mediation led to a focus on the children’s needs as described by the children themselves, and resulted in greater stability in parenting arrangements and ongoing improvement of attachment relationships[xiii].
In contrast, mediation which dealt with parenting but did not involve the subjects of the mediation (the children) were less stable overall, which is not surprising given the lack of input from the children regarding their own care. Moving towards child-inclusive mediation is arguably therefore a “public health issue” in that processes that include them in discussions around parenting arrangements can improve the wellbeing of children significantly[xiv]. The study was careful to point out the need for detailed guidelines however, including training to ensure child-inclusive practice is conducted competently[xv].
The study also found that mediation is arguably not appropriate in all parenting cases as it is often not suitable for high conflict families with underlying negative patterns and mental health issues. Both the child-focused and child-inclusive mediation groups saw relatively poor outcomes for families reporting mental health issues, mother-child attachment issues, high conflict, general disregard for each other and poor cooperation.[xvi] The findings further support the need for adequate screening processes to remove such high-conflict families from standard mediation programs altogether, where mediations lasting on average only 4-5 hours, are arguably incapable of, in such a limited time, shifting longstanding and underlying issues that impede the parties’ useful participation. The report found that these families should be diverted into long-term therapeutic interventions to assist parents who are at first instance unable to participate fully in mediation.[xvii]
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[i] McIntosh, Jennifer E. and Long, Caroline M. 2006, Children beyond dispute: a prospective study of outcomes from child focused and child inclusive post-separation family dispute resolution. Final report, Attorney-Generals Dept., Canberra, A.C.T, 4., 3.
[ii] Ibid.
[iii] Ibid.
[iv] Ibid.
[v] Ibid.
[vi] McIntosh, Jennifer E. and Long, Caroline M. 2006, Children beyond dispute: a prospective study of outcomes from child focused and child inclusive post-separation family dispute resolution. Final report, Attorney-Generals Dept., Canberra, A.C.T, 4., 3.
[vii] Field, Rachael. A call for a safe model of family mediation [online]. Bond Law Review, Vol. 28, No. 1, 2016: 84.
[viii] Ibid.
[ix] Field, Rachael. A call for a safe model of family mediation [online]. Bond Law Review, Vol. 28, No. 1, 2016: 84, 4.
[x] Field, Rachael. A call for a safe model of family mediation [online]. Bond Law Review, Vol. 28, No. 1, 2016: 84.
[xi] McIntosh, Jennifer E. and Long, Caroline M. 2006, Children beyond dispute: a prospective study of outcomes from child focused and child inclusive post-separation family dispute resolution. Final report, Attorney-Generals Dept., Canberra, A.C.T, 4., 4.
[xii] McIntosh, Jennifer E. and Long, Caroline M. 2006, Children beyond dispute: a prospective study of outcomes from child focused and child inclusive post-separation family dispute resolution. Final report, Attorney-Generals Dept., Canberra, A.C.T, 3.
[xiii] Ibid.
[xiv] McIntosh, Jennifer E. and Long, Caroline M. 2006, Children beyond dispute: a prospective study of outcomes from child focused and child inclusive post-separation family dispute resolution. Final report, Attorney-Generals Dept., Canberra, A.C.T, 4., 5.
[xv] Field, Rachael. A call for a safe model of family mediation [online]. Bond Law Review, Vol. 28, No. 1, 2016: 84.
[xvi] Ibid.
[xvii] McIntosh, Jennifer E. and Long, Caroline M. 2006, Children beyond dispute: a prospective study of outcomes from child focused and child inclusive post-separation family dispute resolution. Final report, Attorney-Generals Dept., Canberra, A.C.T, 4., 5.
