Are we losing the child's voice in mandatory mediation models?

Abstract

The cornerstone international instrument on children's rights protection that has become widely ratified since its adoption in 1989 is the Convention on the Rights of the Child. Аmong other things, it seeks to ensure that children are entitled to express their views on all matters affecting them. In 2009, Comment No. 12 was adopted by the UN Committee on the Rights of the Child to clarify that additional national legislation is needed to guarantee children's right to participate and state their opinions on matters of importance to them in proceedings before public authorities, including courts. With the growing trend for mandating parties of family conflicts to amicable dispute resolution processes, statutory regulations on mandatory family mediation often remain silent on the way the voice of the child should be integrated in these procedures. This article seeks to outline the problem that the voice of children is often marginalized in the field of mandatory family mediation in Europe given the lack or insufficiency of regulations and application of different protocols for children inclusion during mediation. Review of scientific literature and analysis on the practices deployed in some European countries established that different approaches exist on how children are integrated in mediation and there is a lack of synchronicity on the role of children in the procedure. This leads to the insurmountable paradox that while in court proceedings, hearing the child's view on matters that affect them is imperative. Children have no guaranteed seat in mandatory mediation, which has been designed to replace traditional justice. Herewith, it is suggested that the lack of such rigorous approaches and coherence in an ever-changing mediation setting jeopardizes the importance of children's voice in the process and endanger the best interest of the child. Thus, this article suggests the adoption of cross-European uniform guidelines on the specific role of children in mediation and particularly in its mandatory models and to suggests standards of practice that ensure adequate ways of hearing children's views and opinions in mediation.