The rights of children include the right to be involved, in an age-appropriate way, in decisions that affect them. This includes the right to be involved in mediation and arbitration.
The question of whether judges, arbitrators and mediators should interview children is not a new one. Judges used to bring children into their chambers and chat with them. Then ensued years of debate about whether this was a good practice. Arbitrators have always had great liberties to structure the arbitration process in whatever way the parties contracted, provided the fundamental elements of fairness and due process were respected. Arbitrators were therefore free to meet with the children if the parties consented. And many mediators have been meeting with children for many years, in both open and closed mediations.
The implications of interviewing children are of course different for judges, arbitrators and mediators. Many parenting mediators are mental health professionals who have the skills and experience to effectively interview a child. And mediation is a voluntary process, with the mediator not authorized to make decisions based on such interviews.
For judges and arbitrators, however, the risks are greater. A one-time interview with a child in a court room or arbitrator’s office is not always going to be a reliable source of information. The judge or arbitrator may not be well trained in child interviewing techniques. And the challenge for the judge or arbitrator is that he or she is in the somewhat awkward position of hearing evidence from a person who has his or her own legal rights yet is not a party, not a witness, not subject to examination and, often, not legally represented.
At the same time, the goal of the justice system is to do justice in the fairest, most cost-effective and least destructive way possible. The child needs to have his or her views respected; his or her experience validated. What better way than to allow the child to speak directly to the mediator or the decision-maker?
Respected London family lawyer Alf Mamo recently spoke to the Ottawa Bar Association on this subject. He favours judicial interviews. His interesting speech can be heard here.
In Ontario, unlike Quebec, judicial interviews are not common. And so a committee of the family law section of the Advocates’ Society and the Ontario Chapter of the Association of Family Conciliation Courts, chaired by Martha McCarthy and Dan Goldberg, is examining the issue in great depth. We can look forward to their report by the end of the year.
