The Continuum of Including Children in ADR Processes: A Child‐Centered Continuum Model
| Date | 01 April 2016 |
| Author | Jon M. Graham,Lorri A. Yasenik |
| DOI | http://doi.org/10.1111/fcre.12213 |
| Published date | 01 April 2016 |
THE CONTINUUM OF INCLUDING CHILDREN IN ADR PROCESSES:
A CHILD-CENTERED CONTINUUM MODEL
Lorri A. Yasenik and Jon M. Graham
A four-level Child-Centered Continuum Model (CCCM) for being child focused and child inclusive is introduced as a skills-
based framework to increase the likelihood that children are considered in mediation and alternative dispute resolution (ADR)
processes. The article highlights children as parties to versus objects of family matters that affect them and begins with the
belief that children are active participants in family systems. Parent readiness to hear their children is reviewed as well as a
description of each of the four levels of the CCCM. Issues related to ADR practitioner neutrality, child and family safety, and
skills are addressed.
Key Points for the Family Court Community:
Continuum model for levels of inclusion of children in mediation
Practice tool to assist in the identification of parent readiness to hear children
Practice tool to assist separated parents to hear child and youth concerns
Approaches to working with dysregulated parents
Levels of child inclusion
Keywords: Child Focused; Child Inclusive; Child’s Voice; Family Law; and Mediation.
A focus on children as significant actors in a family system rather than objects of a family system
is emphasized in this paper. A Child-Centered Continuum Model (CCCM) for ensuring children’s
input is presented to provide guidance to those working in the alternative dispute resolution (ADR)
field with divorcing families with children.
CHILDREN AS ACTIVE PARTICIPANTS
There are a few significant factors and theoretical influences that have contributed to the claim
that children have a right to a voice and adults need to listen to their voices. In addition to the United
Nations Convention on the Rights of the Child (UNCRC, 1989), sociocultural theory and the studies
on childhood have shaped the idea of children as citizens with the inherent right to participate in
social and political life (Graham & Fitzgerald, 2010; James & Prout, 1997; Mayall, 1994; Smart,
Neale, & Wade, 2001; Smith, Taylor, & Gollop, 2000; Taylor, Tapp, & Henagahn, 2007). Histori-
cally, children were not considered active participants in cultural life, rather, they were defined
through theories of socialization in families and schools and by biological and psychological theo-
ries. Taylor et al. (2007) reports that during the 1970s ethnographic research changed the traditional
socialization studies approach and was responsible for the study of children both as people and as
independent and interactive agents. More details about children’s subjective experiences in child-
hood emerged and highlighted the fact that children were not simply passive recipients, rather they
were social actors with their own views and thoughts, despite a paternalistic society’s reluctance to
Correspondence: jon@isdr.com.au, yasenikl@telus.net
FAMILY COURT REVIEW, Vol. 54 No. 2, April 2016 186–202
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C2016 Association of Family and Conciliation Courts
cede them control over their own destiny (Dolgopol, 1993). Research began to include children and
their voices as legitimate, articulate and insightful. Children began to share widely diverse accounts
of their family experiences, coping abilities, acceptance, and satisfaction of their various circumstan-
ces (Smart, 2002). It was identified that children were actively involved in the negotiation and re-
negotiation of their family relationships. This expanded view of childhood also provided a broader
consideration of the different ways individual children feel and think about issues such as transition,
custody arrangements, and relationships with family members. It was no longer possible to provide a
one-size-fits-all guideline to divorce. It was important to recognize children’s experiences of under-
standing childhood without adult interpretations stifling these views (James & Prout, 1997). Academ-
ics and theorists were not the only ones to recognize such views; the family law courts recognized
them as well. The past Chief Justice Nicholson of the Australian Family Court stated:
If there is one thing about which there is a fair degree of consensus among experienced judges and other
relevant professionals it is that an adversary system developed in England for the determination of crimi-
nal and civil cases a number of centuries ago is not an appropriate method for the determination of family
law disputes concerning children in the 21st century. It places undue focus on the rights of parents and far
too little focus on the rights of children (2013, p. 15).
In interviews with children about this process, an overwhelming majority stated that they believe it is
important to “have a say” in the family dispute resolution process (Graham & Fitzgerald, 2010). The
research suggests they want to be kept informed and want their needs and interests heard (Birnbaum,
2009, p. 2). This is different from wanting to have control over the decision made (Cashmore & Par-
kinson, 2009).
Recently, strong arguments have been made about the approach to decision making with respect
to post separation parenting arrangements within the family law system. Of particular note are the
current debates about the amount of time that children spend with each of their parents (Pruett, McIn-
tosh, & Kelly, 2014; Warshak, 2014). While acknowledging the significance of these ongoing con-
versations, this article explores a different proposition; that children are not passive recipients of
these decisions. Rather they are active participants in family law processes, and as such should be
afforded an opportunity to safely participate as stakeholders in the outcomes.
WHO HEARS THE VOICE OF THE CHILD?
Participation of children in legal family matters is complicated. There are a number of ADR proc-
esses that may include children, but a routine opportunity for children to provide input is not in place.
Parents or other decision makers will either invite children into a process or order them into a pro-
cess. Although the enlightenment rationale (children will raise the awareness of decision makers
about their needs and preferences; Cashmore & Parkinson, 2009; Warshak, 2003), and the empower-
ment rationale (children will gain from participating in decisions that affect their lives; Cashmore &
Parkinson, 2009; Kelly, 2001; Wallerstein & Blakeslee, 1989) are strong principles in the literature,
they are not practiced as a matter of course.
The research indicates that children’s involvement with the family mediation process has been
quite limited and children were only directly involved in four to 47 percent of all completed media-
tions across public and private sectors, in the United States, United Kingdom, and Australia (Sapos-
nek, 2004). Over the last decade, there has been more activity related to including children (Goldson,
2006; Ministry of Attorney General Justice Services Branch Civil and Family Law Office, British
Columbia, 2007). There are also government funded mediation programs that have been initiated as
child inclusive (McIntosh, 2007; Ministry of Attorney General Justice Services Branch Civil and
Family Law Office, British Columbia, 2007).
Children may also be invited to meet with parenting coordinators who are quasi-judicial, mental
health, mediation-trained individuals who work with high conflict families that have difficulty
Yasenik and Graham/A CHILD-CENTRED CONTINUUM MODEL 187
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