Outline of a Basic Family Mediation Process: Part 4 of 8 – Views & Preferences of the Child

The law requires the (mediation) process to enable the views and preferences of the children to be heard and understood…

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As with negotiation, the mediation process follows a basic framework. The framework that a mediator uses will be determined by the principles that guide through.

At Riverdale Mediation, these are our guiding principles: we see to provide a safe, fair, confidential, balanced, neutral, informed and voluntary process of self-determination that does no harm.

Each of these principles is important and sometimes they conflict with one another. It is therefore essential to have a solid understanding of the purpose of each principle, and a vision of how these principles will play out in any given situation. When confronted with a new challenge, good mediators will return to the principles that guide them for the solution.

The following series are excerpts from one of our training manuals for new mediators.

PART 4 – VIEWS & PREFERENCES OF THE CHILD 

In any mediation affecting children over the age of 4 or 5, and sometimes even children that young, the law requires the process to enable the views and preferences of the children to be heard and understood, to the appropriate extent given all the circumstances.

It is the mediator’s job to ensure that this requirement is discussed with the parties and that they agree on the appropriate steps to take. If they do not agree, outside assistance will be required, either in the form of a legal opinion, court assistance, or hiring legal representation for the children.

Your agreement to mediate should address the elements of any child interactions that might occur. Such terms should deal with:

• The parties understanding that, under the United Nations Convention on the Rights of the Child, to which Canada is a signatory, children have the legal right to be provided with an opportunity to express their views about decisions that affect their well-being, consistent with their age, capacity and desire to participate.
• The mediator may recommend that our children be interviewed as part of the mediation process to elicit the child’s/children’s views, experience and preferences as may be appropriate in their circumstances parent’s consent is required before such an interview may occur.
• Should the parties consent, which may be done verbally or in writing, a mediator who is trained to interview children, or someone the mediator designates, will meet with the child/children on the following basis:

1. The interviewer will first meet with each parent to explain the process in more detail and to agree on the time and place of the meeting/s;
2. the interviewer will then meet with the child/children;
   the specific content of the meeting shall remain confidential between the child/children and the interviewer;
3. the interviewer will meet with both parties and the mediator to share the overall impressions and concerns of the children;
4. the information shared during this meeting will be used to help the parents reach informed decisions that will be in the best interests of their children;
5. the interviewer and/or the mediator is required to disclose to a Children’s Aid Society any disclosures from the child/children that reasonably lead the interviewer/mediator in good faith to believe that a child is in need of protection, and to disclose to the police or other appropriate third party any information that reasonably leads the interviewer/mediator in good faith to believe that there is an actual or potential threat to human life or safety; and
6. the interviewer is not a compellable witness in any legal proceeding unless so ordered by a court.

illustration by Frank Guerreiro