Separating parents in mediation commit to less conflict and agree to different custody arrangements when children’s needs are clear

Innovative family mediation focused on children’s feelings leads to parents agreeing to decrease conflict, act in the child’s best interests, and provide more father parenting time, finds small, pilot study.

According to a small-scale but pioneering U.S. pilot study, when children’s needs are clearly articulated during family mediation, divorcing and separating parents are more likely to agree to work together, committing to reduce their conflict and to communicate more effectively.

An additional, unexpected finding was that the agreements forged during this innovative, child-informed mediation more than doubled the parenting time agreed for fathers. If larger-scale studies repeat these results, it will raise questions about how best to support separating parents in facilitated negotiations.

“We should take a closer look at whether a more child-informed approach to mediation can save courts time and money, and produce less adversarial separations and better solutions for children.”

Getting mediation right is vital. Over 1 million children in the United States are affected annually by parental divorce or separation. There is considerable interest in interventions to mitigate the potential negative consequences for children. Yet, although family mediation is widely heralded as a better solution than litigation, it has been subject to limited research. It also varies greatly in format, and we know little about its capacity to get parents to act in their children’s best interests.

In our small randomized controlled trial, conducted at the Indiana University School of Law Family and Children Mediation Clinic, a group of separating parents participated in innovative “Child Informed Mediation.” This came in one of two forms. The first was “Child-Focused” (CF) mediation, in which parents were presented with information about children and divorce that highlights how separation and inter-parental conflict affect children. These parents were then invited to discuss a host of issues about their offspring, such as their hopes for them in 20 years’ time and what they would want their child to say about how mom and dad handled the separation. They were encouraged to consider their children and the information reviewed with them when negotiating a mediation agreement.

The second form of this mediation was “Child Inclusive” (CI), in which a child consultant interviewed the children for about 90 minutes about their experiences and fed the main themes back to the parents at the start of mediation. (This is used only for children ages 5 and above.) In CI, the consultant puts together a few core themes that will not overwhelm the parents but that make a coherent story of what their child says and needs. Based on our observations, this approach seemed more moving for the parents than CF mediation. Sometimes, we saw the parents realize: “My God, this is my kid’s picture of what’s happening.”

We then compared these two ways of “bringing the child into the room” with “Mediation As Usual” (MAU), in which a neutral mediator acts as a facilitator between the parents.

Our samples were small: 47 cases of Child-Informed Mediation (13 CI and 34 CF) were compared with 22 cases of MAU. We found no differences between the approaches in terms of parents’ satisfaction and their feelings of fairness or of being listened to. However, mediators preferred Child-Informed Mediation and parents liked the focus on their children.

Comparing CI and CF to MAU, differences in eventual agreements were considerable. Parents in Child-Informed Mediation approaches were more likely to agree not to disparage each other and not to fight. They were more likely to include in their agreement that the child should have a strong relationship with both parents.

The average time agreed for fathers rose from 2.7 nights every four weeks under Mediation As Usual to 6.9 nights for couples who used Child-Informed Mediation. Under MAU, the mother’s home became the sole or primary residence of the children in 92.9 percent of cases. This fell to 61.5 percent under Child-Informed Mediation, with 38.5 percent of parents agreeing that physical custody should be shared or primarily with dad.

The findings regarding custody and parenting time were unexpected, and we can only speculate as to the reasons. One factor may be that a lot of the families in our study were young and had very young children (infants or toddlers). In many of those cases, we discussed parenting time with them and what may or may not be developmentally appropriate. During those conversations, we often discussed the idea of more frequent but shorter contact (for example, seeing a very young child daily, for a shorter period of time) versus less frequent contact that might lead to more changes in the child’s schedule (for example, half the week with mom and half with dad). As a result of these discussions, some of the fathers decided on more frequent, shorter visits with young children.

Also, some of the fathers were young and there were safety concerns about their homes. Initially, and understandably, some of the moms didn’t want these dads to have time with the children. In some such cases, after discussing the possible benefits of two parents and the realistic nature of mom’s concerns, the couple would agree to safer parenting time with dad, for example, at dad’s mother’s house.

In the first year after mediation, parents who completed Child-Informed mediation took less court time, initiating fewer hearings and motions than did parents in standard mediation. However, the differences between those in CF/CI and MAU were small, while the differences between CF and CI were medium to large in size. For example, on average, parents in CF had 2.30 motions, while parents in CI had 0.64 motions in the year after mediation.

We should not read too much into one small study. Self-selection may have played a part: nearly three-quarters of parents who could have been included in CI mediation declined to enter the study, so the final CI sample could have included a disproportionately large group of cooperative parents. Further, in this study, CI and CF were not systematically tested with cases with high levels of family violence.

The study findings do not justify mandating that all parents adopt this form of mediation – many clearly did not want to allow their children to be interviewed. However, this research suggests that we should take a closer look at whether a more child-informed approach to mediation can save courts time and money, produce less adversarial separations, and achieve better solutions for children.