30 March 2020 - Article
Mediation and other alternative dispute resolution mechanisms are preferable to a court case; you don’t want to make a separation more traumatic for children than it already is
Most people would agree that children are very often the innocent victims of relationship breakdowns. While parents agonise over problems in the marriage, their attention is drawn away from those who they care about the most.
With divorce rates on the rise and the prevalence of co-habitating couples also separating, the number of children from broken homes is correspondingly increasing.
Research shows this can have a long-term impact on the children. Judith Wallerstein, a well-known US psychologist, followed a group of children of divorce, interviewing them periodically over a period of 25 years from the 1970s. She expected to find that they had bounced back, but unfortunately she found that even after 25 years these children continued to experience substantial expectations of failure, fear of loss, fear of change and fear of conflict.
Of course many children are resilient. Even so, research shows that even the most well-adjusted child will take up to two years to recover from the trauma of a parental separation.
There are often feelings of loneliness as the caring parent struggles to adjust to the new situation, perhaps with potential new partners or work longer hours to make ends meet.
The child may also feel loss in the absence of daily contact with both parents and regular contact with grandparents, or that it was somehow their fault.
Children generally hope that whatever was bothering their parents can be fixed. They know, and research has proved them right, that they fare better when both parents are involved in their lives. The challenge is how to achieve this when the parents no longer live together. Children do not want to be forced to choose between parents and it is up to parents to ensure that both maintain relationships with their children.
This is easier said than done, as often the parents are in a troubled state, and the last thing they want is more contact with the other party, even for the children's sake.
The way a case is handled can make a significant difference to the impact on children. If the parents are seen to be acting in the best interests of their children, negotiating reasonably with each other, the chances of the children recovering from the trauma of divorce is higher.
How can the legal process minimise the effect on children? The courts will put a child's welfare first. Parents are expected to do so too. Their advisers must remind them how the court would view the behaviour of all parties. The modern approach is to:
- Reduce conflict using alternative dispute resolution methods;
- Reduce the sense of loss by encouraging joint parenting where possible and by giving generous access to the parent who does not have the children living with them; and
- Devise workable arrangements with the children's interests at the centre
Most lawyers acknowledge that the adversarial system of litigation does not work for children; conflict is assured with the children being pulled one way and then the other. Alternative dispute resolution methods such as mediation and the relatively new collaborative practice will often put the children at the centre of negotiations on the understanding that, if the parents are able to focus, the one thing they will normally agree on is a desire to keep the impact of divorce on the children to a minimum.
Mediation allows a third party, a trained mediator, to find a solution with the cooperation of the parties, who decide whether or not to involve their lawyers in the sessions. It is a voluntary process and is without prejudice, so anything said during mediation cannot be used against the other party later. The aim is to find an arrangement that both parties can live with, and is suited to children's needs. Mediation is now very popular with the courts and some judges will penalise a party if they appear to have unreasonably refused to go to mediation.
The Family Court in Hong Kong now offers a form of judicial mediation, the Children's Dispute Resolution process. Here the judge will try to resolve disputes over children by identifying and trying to narrow the issues and encouraging the parties to put together a parenting plan.
There is more scope for detailed arrangements in a mediated agreement than a regular court order. The agreement can annex a parenting plan that sets out when each parent should see the children, organise the children's extracurricular activities and holiday arrangements and set out the joint wish that impact on the children should be kept to a minimum. A successful mediation will result in an agreement that is ratified by the court.
Alternatively, parents may choose to resolve their divorce matters within Collaborative Practice, which is designed to protect children from the negative impacts of their breakup.
Collaborative Practice is a forum where parties can resolve disputes respectfully without going to court. A compelling aspect of collaborative practice is that the parties are not only supported by qualified lawyers, but also by child specialists who can advise on the best way forward for the children. These specialists can act as a coach for the parents, be a voice for the child and help parties to co-parent.
Once divorce coaches and child specialists are engaged in the process, it creates trusted relationships and an environment that parents and child psychologists can return to should future issues arise in their co-parenting. Some parents in highly conflicted relationships may need continuous ongoing support from psychologists. Other parents may find such later assistance useful at a major juncture such as when one of them remarries or the demands of one parent's job impacts on care or access for their child.
Making the right choices for the child can affect him or her long term and such choices should be made as soon as it is apparent that the parents can no longer live together.
This article was originally published in SCMP on 31 January 2016.