The Involvement of Children in the Process of Mandatory Family Mediation

Abstract

Mediation is mandatory for all separated divorcing/separating spouses and co-habiting partners in Norway with children under the age of 16. A mediation model called “Children in Mediation” (Barn i mekling, known as BIM) systematically includes children in the mediation process. In the article, we address two key issues based on statements from children to their parents as well as questionnaires completed by mediators and children in 250 mediations. Our first focus is on how the children’s actorship is expressed in the mediation context. We show that when given the opportunity, children largely choose to speak up, and we present some examples of their statements. We thematise the contradictory considerations of participation and children’s right to protection and assert that children’s potential vulnerability cannot, in general, justify preventing them from participation. Our second focus is on children’s experiences of their own participation and their general views on the inclusion of children in mandatory mediation and relationship breakdowns. In this analysis, we include how the level of conflict and problem accumulation in the family impacts the children’s decision-making about whether to participate or not. In the absolute majority of cases, children have positive experiences of their participation and encourage other children to participate. These assessments were made regardless of the level of conflict and degree of problem accumulation in the family.

1 Introduction and Presentation of the Question

In Norway, it is mandatory for all spouses and co-habiting partners with children in common under the age of 16 to attend a one-hour-long mediation in the case of relationship breakdown.¹ Further mediation is offered up to a maximum of seven hours as and when required. The purpose of mediation is to help parents arrive at good custody arrangements, including parental responsibility, support maintenance, living arrangements, and time with the children. Mediation is also mandatory before any instigating court procedures on child custody and visitation. These two different types of mediation are called mandatory mediation in conjunction with separation and mandatory pre-action mediation , respectively. In Western societies, children are increasingly regarded as actors who should be given the opportunity to be heard. This also applies in mediation situations. This is in line with the UN Convention on the Rights of the Child and Norway’s national legislation, which both state that children have the right to express their own opinions in cases that are important to them. Separation and divorce are regarded as one of the important contexts in which children must be heard.² How this is to be done in practical terms is a topic for discussion both in the field of mediation and in policy development. Children depend on adults looking after and taking care of them, and the right to be heard must be balanced against their need for and right to protection. There are many objections to involving children. One is that it is unnecessary, since most parents agree on care arrangements. Another objection involves fear that children shall be made to feel responsible for decisions, and that they will be involved in conflicts between parents or find themselves in a conflict of loyalties. Other objections are that children may feel manipulated by their parents and under pressure to make certain statements, or tell lies (see e.g. Bondevik and Meren 1997; Langballe 2007; Schoffer 2005). Such objections may be characterised as concern that the involvement of children in mediation may be a further burden on children who already find themselves in a difficult, high-conflict or stressful life situation. It is particularly the latter that is being addressed here. Our aim is to make the wishes of children visible, as well as their experiences, assessments and preferences on the inclusion of children in the mediation process.³ The questions we are trying to answer in the article can be summed up as follows:

• Do children want to participate in the mediation process?

• How do the children view their own participation in the mediation process?

• Do children involved in different divorce processes want to participate in the mediation process?

• What are the important “messages” communicated by children to their parents by participating in the mediation process?

• Which general recommendations about participation do children who have participated in the mediation process give to other children?

• Are the children’s experiences and assessments of their own participation related to the conflict level, mediation type or level of problem accumulation in the family?

2 Frameworks for and Practice of Children’s Participation in Family Mediation

The general principle of mediation is that it takes as its starting point only the subjects of the mediation (in our case mothers and fathers), and the norm is not to involve children in the practice of mediation. General Comment no. 12 of the UN Committee on the Rights of the Child, however, states that children have a right to be heard in mediation on family breakdown. Sandberg (2010) refers to the statement of the Child Committee, and points out that the general principle of mediation cannot be the norm in cases where the mediation also deals with another person (in this case the child), and the agreement which is reached impacts on child and parents in equal measure. One question yet to be resolved is who should hear the child. Sandberg points out that it can be difficult for parents to distinguish between their own interests and those of the child in decision-making about where to live and custody arrangements, and therefore recommends that the child is heard by someone other than the parents.

The right of children to be heard in mediation has traditionally, at least in Norway, been interpreted as the responsibility of the parents, and common practice has been for parents to attend mediation without their children. Section 2 of the Regulations concerning mediation pursuant to the Norwegian Children Act and Marriage Act states that the mediator may speak directly to the child in connection with a mediation, but is not obliged to do so. However, the mediator must inform the parents of the right of the child to state an opinion and of the parental duty to talk to the child about the separation and the approaching change in the family circumstances. An evaluation of the mediation service in Norway showed that mediators only rarely gave parents such information. In 38% of the mediations the mediator had not informed the parents of the children’s right to speak, and in 41% of the mediations the mediator had not informed the parents of their duty to hear the children (Ådnanes et al. 2011). International studies show that children are often not informed or heard when decisions are made in connection with separation.⁴ This has also been the situation in Norway, where mediators talking directly to children has been the exception rather than the rule. Mediation has to a large degree been about the child and what is the child’s best interests, but without the child itself stating an opinion. In their study, Ekeland and Myklebust (1997) found that a mediator talked to the child in 2% of mediations. Fourteen years later, Ådnanes et al. (2011) found that children were heard in 4% of mediations. In the past few years there has been an increase in this number in Norway, and a mediator talked to the child in 8.4% of the mediation processes in 2015 (Bufdir 2016). This increase is to a large degree linked to the spread of the mediation model “Children in Mediation” (BIM).⁵ In international literature, the various models for hearing children in mandatory mediation are divided into Child-focused mediation, where the mediator attempts to “bring the child into the room” indirectly by focusing on the child in conversation with the parents, and Child-inclusive mediation, which implies that the child is in various ways directly included in the mediation process (McIntosh et al. 2007). The BIM-model must be regarded as child-inclusive mediation . In the BIM-model, children are systematically included in the mediation process from the beginning.⁶ The mediator initially has a brief, informative conversation with both children and parents present where the procedures and intentions of the meetings are described.

The parents subsequently leave the room, and the mediator continues the conversation with the child on its own . This conversation, which lasts for approximately 20–25 min, is known as the children’s conversation. Where there are several children in a family they all take part at the same time, as long as they and their parents are happy with that. The purpose of the children’s conversation is threefold: helping the children to understand what is happening in the process of change which the family is going through; preventing subsequent difficulties by giving the children the opportunity to “express their own reactions and feelings in connection with the separation”; and the main aim, which is linked to Article 12 of the UN Child Convention and the child’s democratic right to participation. The child must be given the opportunity to “have their opinions taken into account […] and to say what they think should happen”.⁷

The three different aims are reflected in the following three questions that structure the children’s conversation: (1) What is happening/has happened? (2) How are you feeling? (3) Is there anything you would like to say to your parents? What the child wishes to communicate to the parents is called the children’s message. The mediator formulates the children’s message in writing as closely as possible to the child’s own wording. When the child conversation is over, mediation is carried out between the parents without the child being present. The mediation starts with the mediator communicating the children’s message to the parents. When the mediation is over, the child is brought in for a new inclusive conversation between the child, the parents and the mediator. In this concluding conversation the child learns what the parents have decided. If the parents fail to reach agreement, the children are informed of this and that the parents will continue with mediation for several sessions. The children do not participate in the subsequent mediation. However, children and parents are invited to come back for an evaluation and any adjustment of the plan after 6 months. The structure of the evaluation conversation is the same as described above.

The BIM-model has triggered several discussions about the role of children in mandatory mediation. Should children always be invited to join their parents in mediation or are there situations where children ought not to attend? If so, who should decide—the mediator, the parents or the child itself? Other questions are about when the mediator should talk to the child, how children should be informed of the purpose of mediation and their right to be heard, and what being heard in connection with mediation actually implies.

A review of international research shows that children are rarely heard in cases where the parents agree (Ask and Kjeldsen 2015). Mediators assume that parents in such cases make decisions that are in line with what is in the best interests of the child, and that a conversation with the child is therefore unnecessary. Children are also rarely heard in very conflicted mediations. This is because of difficulties in obtaining consent to children taking part from parents in conflict, but also because of a desire on the part of the mediator to shield the child from potential risk, pressure and conflict of loyalty: “Most mediators agree that it is important to shield the children, and that there should always be an assessment as to whether inclusion would involve a risk to the child, both in relation to the degree of conflict between the parents and the child’s level of development” (Ask and Kjeldsen 2015). Knowledge reviews show, however, that there is no research base for the claim that inclusion of children in the mediation process poses a risk to children’s development and well-being (Ask and Kjeldsen 2015; Rapport RBUP 2017). Children’s participation in mediation processes is not common—research thematising the involvement of children in such processes from a child’s perspective or showing the consequences of their participation is therefore very limited.

3 Clarification of Concepts and Analytical Starting Point

Our starting point is the understanding of children in childhood sociology, i.e. that children are regarded as actors who participate in their own representations (James et al. 1999). As family members, children are both influenced by and influence co-operation, communication and relationships in the family. This is also the case when families break up. In BIM-mediation, children have the opportunity to influence the agenda, and participate as more than just informants who are being “heard” on the issues that are of interest to parents or mediators. Children are involved in the process of family change, and are actors who, as well as being influenced by their parents’ break-up, can influence the establishment of new family practices afterwards. This ontological starting point has epistemological implications. Research that starts with a view of children as actors emphasises that a child perspective is not only a perspective on children – but children’s own perspective. A consequence of this is that children are important participants in this study.

The concept of participation is defined in various ways in the literature. We lean towards Hodgkin and Newell (2007) who define participation as being included in the decision-making process through discussion. The participation of children, which is the main aim of the BIM-model, does not imply participation in the actual mediation between the parents, but to be included in the mediation process as follows: (1) joint conversation between parents, child and mediator before the child conversation; (2) separate child conversation between child and mediator before mediation, and formulation of the children’s message; (3) joint conversations between parents, child and mediator after mediation; (4) participation in the evaluation of the co-operation agreement 6 months later; and (5) children themselves may contact the mediator.

There are differing understandings in the literature of the concepts of conflict, conflict level and high conflict. Ekeland (2004) identifies conflict with factors like unequal distribution of power and emotional engagement, dependency, and differing needs and interests. Conflict level can be defined and evaluated through factors like the subject matter of the conflict, the problem accumulation in the family and psychological aspects (Ottosen 2016). In their research review Helland and Borren (2015) estimate the proportion of high conflict cases to be “between 12 per cent and 25 per cent of couples in mediation or after a break-up in Norway, depending on criteria and population”. Ottosen’s (2016) analysis of the development in family law conflicts in Denmark describes approx. 20% of divorcing parents as having considerable conflicts. “Of those, around half appear to have serious conflicts. These so-called high-conflict couples are as far as can be judged a relatively constant number”.

The Norwegian Directorate for Children, Youth and Family Affairs (Bufdir) employs the term “high conflict” about arrangement for contact or custody of children/parental disputes that end up in court and about mediation where “ the conflict between the parents is acute, in deadlock and/or the children’s care situation is at risk as a result of the parental conflict.” ⁸ Gulbrandsen’s (2015) study of the interaction during mediation between parties where both felt there was high conflict, elaborates on the term “high conflict”: The parties had enduring, contrary views on important issues, a strong distrust of each other, high emotional pressure and defensiveness, absence of any positive response, irreconcilable presentation of the case, repeated negative exchanges, interruption of constructive clarification, and both seeking support for their views from others involved in the case. In our study we asked the mediators to assess the conflict level between the parents without an explicit definition of the concept. There is still reason to believe that the mediators based their understanding on the elements described above.

4 Method and Data Collection

The data collection followed the trial of the BIM-model during the period 2012–2014, where 21 mediators at 4 family counselling offices in 2 regions participated.⁹ The family counselling offices were recruited to the study at different times in 2014. Quantitative and qualitative data were collected through questionnaires and interviews. The results that are presented in this contribution are based on analyses of the text material from “the children’s message” in 250 mediation cases during the period 2012–2014 and quantitative and qualitative data collected through questionnaires from children and mediators in 217 mediation cases in 2013–2014.¹⁰

The questionnaires were completed by the mediators after the final joint conversation between children, parents and mediator, while the children completed their form immediately after the children’s conversation.¹¹

The mediator questionnaire had information about the type of mediation (separation mediation or child legislation mediation), the mediator’s subjective assessment of the conflict situation between the parents and whether the case had other worrisome conditions. The categories under “Other worrisome conditions” were “issues around drugs/alcohol”, “violence issues”, “psychiatry”, “failure of care” and/or “referred to children’s services”. The more categories that had been ticked by the mediator, the more troubled we can assume the family is. Conflict between parents can be evaluated and measured by the use of various parameters and informant perspectives—both the parents’ own, the children’s and the mediators’ perspectives (Nilsen et al. 2012). In our study, the mediators assessed the conflict between parents immediately after the first hour of mediation, by marking a visual, analogue scale from “no conflict” (0%) to “very high conflict level” (100%). Research by Guldbrandsen and Tjersland (2013) show that mediators are accurate in their assessment of conflict level between parents at the start of a mediation process.

The children’s questionnaire had six questions. In five of the questions the children were asked to put a mark along a visual, analogue scale from “sad face” , via “neutral” (-) to “smiley face” . Qualitative data material was collected through the sixth, open question, where the children were asked to formulate their own opinion after the conversation with the mediator, and their own assessment of the involvement of children in mediation. Of 356 children in 217 mediations, 345 children (97%) answered one or more of the questions in the questionnaire. Of these, 138 children (40%) also answered the open question in their own words. The children’s formulations that are presented in this text material have been analysed quantitatively and qualitatively.

One question that is often raised is whether children are credible informants in research. The hierarchical power relationship between children and adults is a factor that might contribute to a form of respondent bias. This means that the respondent expresses agreement with the researcher’s point of view or gives what the respondent assumes is the wanted answer. The design of this study enables children to respond freely to the questions posed. Neither parents, mediators nor researchers were present while they completed the questionnaires. It is worth noting that the children in our study scored the scales differently and expressed differing views in the open question, something which strengthens the impression of truthful answers.

4.1 Selection: Children, Type of Mediation, Conflict Level and Degree of Problem Accumulation

During the trial of the BIM-model there was no selection of cases that were “suitable” or “not suitable” for this type of mediation. All the parents who requested mediation were given a verbal and/or written offer of mediation according to the BIM-model. Our material has been collected from all the 217 mediations that were carried out in accordance with the BIM-model and consent was given to taking part in research. There was an even distribution of boys (49.4%) and girls (50.6%) in the age range 4–20, most of them were between 7 and 15 years old. The average age was 10.8 years. There were more 12-year-olds than any others in the selection (13.5%). Of 217 mediations, 70% were separation mediations (95 marriage breakdowns and 55 breakdowns of co-habiting partners). The remaining 35% (65 cases) were mandatory pre-action mediation, where one of the parents had taken the other to court. In 2 of the 217 cases the type of mediation was not given.

The 217 mediations in the selection represent cases with mediator-assessed differing conflict levels between the parents. The average conflict level , as reported by the mediators, was 37%, with a standard deviation of 34.6. In 17% of 217 cases, the conflict level was above 80% of the maximum, while the conflict level in 49% of the mediations was under 20%. Median conflict level in pre-action mediation was considerably higher (69% of the maximum) than in mediation in conjunction with separation (24%). A credible explanation of this difference is that these parents had previously been through mediation and failed to reach agreement (Fig. 1).

Fig. 1

Histogram of conflict level between the parents

4.1.1 Problem Accumulation in the Family

According to the mediators, several families in the selection faced challenges beyond those posed by the relationship breakdown. In 43 mediations (20%), one or several “other worrisome conditions” were ticked by the mediators. In 25 cases one such concern was ticked, in 12 cases two were ticked, in 3 cases three were ticked and 3 cases there were four. The degree of problem accumulation in the family is assumed to be proportionally increased by the increase in the number of ticks for “other worrisome conditions”. The issue most frequently ticked by the mediators was “referred to child protection services” (12% of the 217 mediations). This implied that the family already was in contact with the child protection services, or that a message of concern was sent to the children’s protection services after mediation was finished (Table 1).

Table 1 Information about cases

The degree of problem accumulation is higher in mandatory pre-action mediation compared with mandatory mediation in conjunction with separation. In pre-action mediation it is far more common to have one or several worrisome conditions in the case than in mediation in conjunction with separation. In 27 of 65 pre-action mediation cases (41.5%) there was at least one issue of concern, while the equivalent figures in cases concerning mediation in conjunction with separation were 16 of 150 cases (10.7%).

There is also a correlation between conflict level and problem accumulation , i.e. where there is a high level of problem accumulation there is also a high conflict level. In cases where the mediator had not ticked any worrisome conditions, the conflict level was 31% of the maximum. Where there was one issue of concern, the conflict level was 57%. Two worrisome conditions meant a conflict level of 66%. In the cases with the highest problem accumulation, the conflict level was 72% with three ticked worrisome conditions, and 82% with four ticked. Collectively there is a significant correlation between the number of worrisome conditions and the mediator-assessed conflict level (F = 8.4; p < 0.0005).

4.2 Analysis of Quantitative and Qualitative Data

Combining different qualitative and quantitative methods involves a methodologically pragmatic position since the researcher is dealing with both constructivist and positivist research traditions. This provides answers to research questions that require different research methods. Such a method combination can be described as a “convergent-parallel approach”, where qualitative and quantitative data are collected in parallel, but analysed separately but at the same time (Edmonds and Kennedy 2013). In this way, the results of the analysis based on qualitative and quantitative data can complement, nuance or “correct” each other.

The free text (“Use this space to write anything else you would like to say about participating in mediation”) in the children’s questionnaire was analysed both qualitatively and quantitatively. We used topic-centred qualitative analysis to take a closer look at whether some topics particularly characterise, or are repeated in, the children’s free text (Thagaard 2013). During the first read-through we differentiated between the children’s expressions of positive, nuanced or negative experiences, and a last category where the statements from the child are not linked to mediation. Variations in the children’s statements are then systematised in terms of mediation, degree of conflict between the parents, and the degree of problem accumulation in the family.

The text material containing the so-called “children’s message” is analysed qualitatively, with a focus on how children execute or perform their actorship and where they position themselves in the mediation context. The categories we present were derived from the variations, common features and patterns we interpreted from the texts. Categories can be described as demarcations of topics derived from analysis, or as “containers”, where one can place observations (Aase and Fossaskåret 2007). The content analysis is not theoretically unbiased, but in the sense that the material, i.e. the children’s message to their parents, is not read or systematised based on pre-constructed categories. The patterns in the material are organised on the basis of our interpretation of the children’s life situation at the actual time when mediation took place, and where in the families’ process of change the children focused their attention. The result is formulated in four analytical categories: “breakdown”, “preservation and improvement”, “reorientation” and “security”. As with other categorisation, the categories are not fully adequate or exhaustive, but their purpose is to render visible vital features of the children’s situation, their opinions and assessments.

Descriptive analysis showed the conflict level , degree of psychosocial strain and types of mediation in the selection. The same goes for the children’s experiences, wishes and opinions connected to their inclusion in the mediation process. SPSS version 22 was used for this analysis. Significance was assessed at level 0.05. In some families more than one child completed the questionnaire, and dependency between the children’s answers might therefore occur. The children completed the questionnaires in the same room, and without anyone checking whether they talked to each other. The children’s individual answers may therefore be influenced by what their siblings wrote. Multiple level analysis was used in order to manage data dependency (Strabac 2012).

4.3 Representativeness and Relevance

Whether our results have any validity beyond this selection depends e.g. on the representativeness of the selection. That is to say to what degree the selection reflects the total population who go through mediation. All the parents who were offered BIM-mediation and consented to participate in research are included in the material. The selection is thus not chosen strategically, but based on self-selection. In 2014, the year of the majority of our cases, the selection consisted of 12% of all mediation at the four offices. Recruitment through self-selection could possibly skew the selection, in particular, with regard to the legal base, and the level of conflict and problem accumulation. However, this does not appear to be the case in our material. Mandatory pre-action mediation constituted 30% of the data material; the national average was 34% in 2014 (Bufdir. 2015). There are big differences in conflict levels and risk factors in the 217 cases. In 17% of the cases the conflict level is shown as between 80–100%. In 20% of the cases the mediator had ticked one or several “worrisome conditions”, and 12% of the cases had been referred to the children’s services. The size and composition of the selection (legal basis for mediation, age and gender of the children, conflict level, risk factors and geographical distribution) make it probable that the results yield knowledge that is valid and has relevance beyond the selection that took part in the study.

5 Results from Quantitative and Qualitative Qnalysis

First, we present the extent of children’s participation and show a few examples of children’s messages to their parents’ mediation session. We then present a descriptive analysis of children’s satisfaction with the mediation process. Subsequently, a multiple level analysis is used to further investigate any connection between children’s experiences, opinions and wishes to be included in the mediation process, and the mediator’s assessment of the degree of conflict between parents, type of mediation and number of worrisome conditions in the family. Finally, results from a qualitative analysis of children’s formulations about their own experience of mediation are presented.

5.1 Children’s Participation and Their Message to Parents

One important result in our study is that children who are given the opportunity, actually want to participate in the mediation process. Of all the 250 mediations there were only three where the child/children did not want to make a statement to their parents. Originally, children between the ages of 7–16 were invited to attend when their parents were having mediation. The fact that also older and younger siblings (aged 4–20) wanted to participate confirms this wish.

Children’s statements to the mediator contained a broad range of messages to parents. The messages ranged between “breakdown”, “preservation and improvement”, “reorientation” and “safety”, which became our analysis categories. In the “breakdown” category, statements relate to being in a process of change from one family with a mother, a father and children, to new family constellations. The next category, “preservation and improvement”, refers to the children’s wish for the parents to be reunited, or for family customs and traditions to continue after the divorce. The main issue here is the child’s wishes in relation to arrangements, co-operation, and preservation of, and maybe improvement in, relationships in the divorced family. In the “reorientation” category, children may be well into establishing new relationships with their parents’ new partners, and they talk about new family constellations. In the fourth category, called “security”, it is not the actual breakdown which is most prominent, but rather issues with varying degrees of seriousness related to the child’s care situation, and that may be intensified as a result of the breakdown. Each of the four analysis categories will be discussed in more detail with examples of the children’s message to their parents.

5.1.1 Breakdown

The children’s messages express a variety of emotions related to the family breakdown. For most of them, the breakdown of the relationship between their parents is a great burden, and they show a huge range of emotions. Many state that they are uncertain, surprised and confused. It is hard to understand that their parents are getting divorced, and some find it strange that the parents have not told them before. The relationship breakdown between their parents has come like a bolt out of the blue for many of the children, something which they are unhappy about and wish to communicate back to their parents. Some children express anger, but the most prominent feeling in this category is sadness. They spend a lot of time thinking about what has happened, and many say they sometimes cry. Many ask the mediator to tell their parents that they need more attention and to be comforted. Others communicate a wish for their parents not to constantly ask how they are, because it makes them cry.

Many of the children say it is good to be able to talk to someone other than the parents. It also emerges that the children worry a lot, both for themselves and for one or both of the parents. Several wonder how the parents are. One pair of siblings expressed it as: “The older one of us wants the parent who does not have the children with them to be all right when the children are with the other parent. Doesn’t want them (the parents) to be sad even if they live in separate houses. Wants them to do things that make the children happy.” We interpret this to mean that it can be a burden for the children to think about their parents missing them. Another example of this is from a 10-year-old girl who says she feels a little bit guilty when she spends time with just one of them, but she has a solution: “I want you to live together – be with you at the same time.” When the children talk about their parents missing them, many see it in terms of what is fair. The children often understand fairness in terms of children sharing their time equally between the parents: “I want to be fair – spend just the same time with both” (13-year-old girl). One pair of siblings say: “We are fine. We can stay one week with each of them, that makes it fair for both mum and dad. And then there is no need for dad to miss us.” The material shows clearly that the children feel particularly sorry for and/or are worried about their father. One of the children says the following: “I think about dad a lot – that he’s going to be all right. That he needs to know that I love him.”

Some of the children are worried about the future and say they miss their parents, that they are not used to spending long periods away from one of them. Some fear that the parent they see least of is going to disappear altogether. A large number of the children talk about having emotional problems as a result of the divorce. Others point to the practical consequences of the relationship breakdown. For many it is important that the parents live near each other, and also near the school. They do not want to change schools, and it is important to keep their friends after the separation. Some experience a conflict between the wish to spend time with the parents and the consequences this has for life outside the family: “I like being with dad, but I don’t have any friends there.” Some say it’s okay to have a 50/50 arrangement, while others point out that their parents wish for such an arrangement is a problem for them: “It is hard to share ourselves equally between parents. Everyday life is very busy, don’t want 50/50.”

The minority, who state that life is all right, that their parents’ divorce is almost a good thing, relate this to, among other things, increased access to material things. The relationship breakdown can provide room for negotiation or an opportunity to make wishes come true. There are several examples of children asking the mediator to tell their parents that they would like a pet. One pair of siblings ask the mediator to tell the parents that they would like a dog. Two 10-year-old girls would first like a budgie, then a dog at their mum’s and tropical fish at their dad’s. We do not know whether these are wishes the children have previously conveyed or whether they have arisen in relation to the family break-up. It could be that the children have registered sympathy and willingness to listen in the situation, something which might make it possible for wishes, which would previously not have been granted, to come true for the children.

5.1.2 Preservation and Improvement

Many children focus attention on preserving and improving relationships in the family. Hope of reconciliation is prominent. Many say they love both mum and dad, and that they wish their parents would fall in love with each other again. Even more convey a wish for family relationships and traditions to carry on as before even if the parents have separated. One pair of siblings say the following: “We want the houses to be as similar as possible (rules, arrangements). We want mum and dad to spend more time together, not be alone all the time. We want to have a nice time in cafes, and go on holiday together. We don’t want to move to another town. Staying two weeks (with each of them) is OK.” Holidays, traditions, anniversaries and festivals (like Christmas and Easter) are recurring topics in the children’s message. Two sisters, 9 and 6 years of age, ask the mediator to write the following to their parents: “We want everybody to be together for part of the summer holiday. We want everybody to be together the day before Christmas Eve and Christmas Eve every year. We want us to still do things together, for example, go to the cinema, go swimming or go to cafes.” A nine-year-old boy says: “I would like to be with both of them on New Year’s Eve, on birthdays and, for example, on beach holidays abroad”.

A large number of the children’s statements deal with arguments between the parents. The children want more co-operation and friendliness. A 10-year-old girl puts it like this: “You are stupid to get divorced. You have to stop arguing and going on at each other, because it makes me sad. I still get a tummy ache when I think about it.” Many ask the mediators to tell their parents to stop arguing. One pair of siblings aged 16 and 14 say: “We do not want you to argue and shout at each other.” One of the siblings says explicitly that they do not want to be the subject of the arguments. It is a problem that the parents make derogatory comments about each other: “We do not want to listen to arguments and discussions. Do not want to know what the other parent is doing wrong. It makes it hard to be with that person.” For children who want the divorced family to still spend time together, arguments become threatening and destructive. Some ask the mediator to tell their parents that they are glad there are now fewer arguments.

5.1.3 Reorientation

Reorientation concerns the effort made by the children in order to adjust to a new family situation. Many convey a feeling of insecurity in view of the forthcoming changes. Some have practical questions about where their toys and things will be, whether there will be room for all the siblings in mum’s small, new flat and where they will celebrate their birthdays. If the parents have a new partner, the children’s reorientation may also include their relationship with new family members and the children’s position in new family constellations. Some convey that they are not ready for their parents to have new partners: “Dad should not get a girlfriend quite yet, first we need to get used to them not living together” (11-year-old girl and 7-year-old boy). For others, life has moulded into a new shape. Their parents’ new partners have been introduced and have become part of everyday life. A 7-year-old girl puts it like this: “I’m fine. Mum has a new boyfriend and dad has a new girlfriend. They’re nice. I want to live a little with mum and a little with dad.” Two siblings aged 15 and 11 also say things are fine. At the same time they have clear views on both the parents’ new partners and, not least, on the process: “The holiday with A (dad’s new partner) was too soon, although it went well. A needs to stop hugging us quite so much, she’s a little too “mummy-ish”. She’s a nice lady. She just needs a few adjustments. It’ll be fine once we get to know her a little better. K (mum’s new partner) is quite OK, and very funny.” Even if several of the children say that being introduced to new family members was fine, they still emphasise that they enjoy celebrating their birthday with mum and dad, that contact with siblings is important and that they want to do things with the whole original family together.

5.1.4 Security

This category describes statements that cause concern about the children’s security and care. Recurrent topics of concern are aggression/violence, big conflicts and parents’ alcohol and drug use. One 13-year-old boy asks the mediator to convey the following message to his parents: “I do not want dad to be drunk when I am at his house.” The statement from two siblings aged 13 and 15 was: “Dad should not drink alcohol when we are there. We want to continue to spend time with dad as long as he doesn’t drink.” Another pair of siblings say they are willing to try the arrangement whereby they spend one week with each parent, but then dad has to stop drinking and he has to learn how to deal with the medication for the child’s condition. Some children describe very concretely what does not work, and also suggest possible solutions. Two youths ask the mediator to tell the parents the following: “We want to have a nice childhood until we are 18. We want to live with our uncle for an indefinite period. If not with our uncle, then our choice would be with dad. To mum: Stop lying. Get rid of your druggie friends and prioritise your family. Quit making us feel guilty. Stop slagging dad off. We want to have contact with our parents, especially with dad. Mum can visit us at dad’s, but she mustn’t say bad things about our father.” Others are clear about what they want, but it is not always that obvious why they want it. One 11-year-old girl wants the mediator to tell her parents that she is really quite OK with mum, and she does not want to stay the night with dad: “I only want to meet him during the day, and not at his house.” Another child says: “I want to live with mum. I don’t trust my dad. I do not want to have any contact with dad AT THE MOMENT.”

These children direct the attention directly and indirectly to parents who do not sufficiently look after their children’s needs/provide sufficient care for their children. In the worst scenario, this describes parents from whom the children need protection. In rare cases this is about poor care from both parents, however, several cases concern worry or insecurity when the children are with one of the parents. As far as the children’s message in the “security” category is concerned, it may look as if the problem is not the divorce per se. Statements describe other conditions rather than the actual relationship breakdown, but the breakdown may reinforce something that is already problematic. If one of the parents has represented security and stability and compensated for the other parent’s failing care, the child may experience the family breakdown as risky. The child will in the future have to live with a parent who fails in their responsibility to look after the child’s needs, without the presence of the safe carer.

5.2 Children’s Experiences, Opinion and Preferences About Their Inclusion in the Mediation Process

Three of the questions in the child questionnaire concern children’s experience of the child conversation: “Were you able to say what you wanted to the mediator? Did the mediator understand what you meant? Did you enjoy talking to the mediator?” In the vast majority of cases the children expressed very positive experiences from the child conversation. Most of them found that they to a great extent were able to say what they wanted to say. On the visual, analogue scale from sad face (0%) to smiley face (100%), half the children put a mark against 100%. Seventy per cent of the children put the mark between 90 and 100%. Median score is 93% of the maximum when it comes to how children experience being able to say what they want to the mediator. For the question about whether the mediator understood what the child meant, the average of the marks given by the children was 92%. The average of the children’s marks for whether they liked talking to the mediator was 86% of the maximum.

The children’s opinion was also sought on the inclusion of children in mediation in general: “Do you think that children and young people should be able to take part in mediation?” The children were very positive towards this. The average level of the children’s marks was 88% of the maximum positive. The fifth and last question where the children were asked to mark a long, visual, analogue scale was: “Did you want to take part in the mediation when your parents suggested it?” The average of the children’s markings in this case was 64%.

In the study we were interested in possible variations when children’s experiences were compared with different features of the situation the child and the family were in. Figure 2 illustrates the correlation between the children’s experience of being able to say what they wanted to the mediator, and the degree of conflict between the parents. The X-axis in the figure shows the mediator’s assessment of the conflict level , with “no conflict” on the far left and “very high conflict” on the far right. The Y-axis shows children’s experience of being able to say what they wanted to the mediator, where 0% is a sad face and 100% is a smiley face. As the figure shows, the children experienced to a very great extent that they were able to say what they wanted to the mediator, also in cases where the mediator had assessed a high degree of conflict between the parents. For each percentage point of conflict level increase, there is a decrease of 0.07% in the children’s experience of speaking freely. The horizontal line in Fig. 2 gives a graphic presentation of this.¹²

Fig. 2

Children’s experience of talking freely with the mediator—and conflict level in the family

Table 2 below show the results of bivariate multilevel analysis where the correlation between the children’s assessments and each of the three predictors—type of mediation, conflict level and worrisome conditions—are assessed one by one. There is significant correlation between conflict level and the question “Were you able to say what you wanted to the mediator?” (t = −2.90; p < 0.05). There is a negative correlation between these two variables, which means that an increase in conflict level gives a lower score on the experience variable, although the correlation is very small. There was no other significant correlation between the variables, and the effects were generally quite small. In other words, the conflict level in the family only affected the children’s experience of being able to say what they wanted in conversation with the mediator to a small degree.

Table 2 Bivariate multilevel analysis

Through multivariate analysis where all the predictors (type of mediation, conflict level and worrisome conditions) are assessed simultaneously, we were able to estimate the unique contribution of each variable to explain the children’s experiences, opinions and wishes in terms of their involvement in the mediation process. The results of the multivariable analysis are shown in Table 3 below. Here there is also a significant correlation between conflict level and “Were you able to say what you wanted to the mediator?” (t = −2.64; p < 0.05), adjusted for the number of worrisome conditions and type of mediation. There is also a significant correlation between conflict level and “Did you enjoy talking to the mediator?” (t = −2.54; p < 0.05), adjusted for the number of worrisome conditions and type of mediation. In both cases there is a small negative correlation: an increase in conflict level gives a slightly lower score for children’s experiences.

Table 3 Multivariable analysis

It is natural to expect a certain positive correlation between “Were you able to say what you wanted to the mediator?” and “Did you enjoy talking to the mediator?” (The Pearson correlation between the two variables is r = 0.39 in this case). It is therefore not surprising that the results are similar in these two cases.

When summarised, these results show that in total, the conflict level, type of mediation and number of worrisome conditions have a relatively small effect. In order to illustrate the strongest correlation between conflict level and “Were you able to say what you wanted to the mediator?” in the multivariate analysis, the experience variable is estimated to decrease by 0.08 percentage points for each percentage point increase in conflict level. This illustrates the following point: as long as the children felt they were able to say what they wanted to the mediator, it would it would be very difficult to find strong effects from any of the predictors. Regardless of conflict level, type of mediation or degree of problem accumulation , most of the children had positive experiences of their participation as actors in mediation.

6 Nuances in the Children’s Experiences from Qualitative Analysis

The vast majority (75.4%) of the 138 children who answered the free text question, expressed positive experiences and attitudes to the inclusion of children in the mediation process. 15.2% of the children did not provide any information that could be linked to having taken part in mediation, while 9.4% gave critical and/or negative contributions. This minority said it was boring, unnecessary or difficult. One of the children wrote that mediation ought to take into consideration “that there are delicate situations with parents; they can become difficult if both are present”. Half of those who wrote critical and/or negative comments said that they had been given too little information and/or had felt compelled to attend. One of them wrote: “At first I didn’t really know what mediation was, so then I was a little unsure.” One child felt there was too little time for the child conversation.

The majority, who expressed positive experiences, used concepts like “important”, “fantastic”, “fun”, “good”, “okay”, “great fun”, “pleasant”, “smart”, “great”, “fine”, “really cool”, and “really good”. Several relate their positive experiences to the characteristics of the mediator, and described the mediator as “pleasant”, “kind”, “easy to talk to”, “she understood”, “it felt safe”, and “she said lots of good things”. Several of the children explicitly emphasise that it was positive to be able to talk to someone “neutral”. Three of the children wrote: “It was lovely to talk to someone other than mum and dad.” “I thought it was good to be able to talk properly to someone who really understood me.” “Generally it can be easier to ‘talk straight’ to someone who is ‘detached’.” The children emphasised that it felt good to be able to tell someone outside the family what was happening and what they were thinking and feeling. The children often used emoticons to express that it felt good to “ease the burden” and tell someone other than their parents what they thought and felt: “I have no more words left. Managed to say everything.” “It was good to be able to speak openly about what I wanted. It was a great help Nothing else.” “I think it was quite good to be able to say it rather than keep it inside!” “I enjoyed taking part in mediation, because now I will get over things I find difficult or things I don’t like.” One child involved in a mediation where the mediator had ticked three worrisome conditions in the family, wrote the following: “Looking forward to explaining how I am in 6 months’ time.”

Several of the children explain their positive experiences in terms of having been able to state their opinion, participate in the discussion, and some felt that they were able to participate in decision-making: “I think it’s good that we are allowed to take part in mediation because we are the ones who have to listen to all the discussions, and therefore it’s important that we are able to say what we feel.” “It’s a good place to be able to talk about what we think and feel about parents getting divorced. And even if it is the parents who decide in the end, it is a good feeling to be able to say what we feel and participate in the decision.” “I would like to have it a bit more often, because then we can change something if it doesn’t work.” “I thought it was really good to have the opportunity to say what I wanted, and I hope this is something which will continue.”

6.1 The Children Generalise: “All Children Should Be Allowed to Take Part”

Several of the children make statements on behalf of children as a group in the free text. The children generalise the value of accompanying their parents to mediation, when they e.g. write: “This is something absolutely all children should be allowed to take part in before their parents’ divorce. It might help both the children and the parents.” Another writes that it was a good way to get children to “speak openly and fully”, but thinks that it is “more meaningful for children who are really troubled by the divorce”. One of the children gives some advice to other children: “It was really nerve-wracking to be here and talk. But, you see, it is the best thing to do right now. To others who are coming here I would just like to say that there is no need to worry. Because it was actually really nice to be able to talk about it.”

6.2 Children’s Experiences in Relation to Conflict Level , Degree of Problem Accumulation and Type of Mediation

Of the 138 statements from children in the free text box, 29 (just over 21%) were from children in cases where the mediator had ticked other worrisome conditions.¹³ In 72% of these statements (21 of 29), the children pointed to positive experiences with participating in mediation, compared with 74% (81 of 109 statements) in cases where there were no worrisome conditions. It is worth noting that all the seven children in whose cases the mediator had ticked three or four worrisome conditions in the family, made positive statements about taking part in mediation (Table 4).

Table 4 Children’s statements in the free text compared with degree of problem accumulation

In the analysis of the children’s free text we have also taken a closer look at statements from children in cases where the conflict level has been graded as below 20% or above 80% of the maximum, and statements from children in mandatory mediation in conjunction with separation and mandatory pre-action mediation respectively. The results of this analysis is presented in Tables 5 and 6.

Table 5 The children’s experiences compared with degree of conflict between the parents

Table 6 Children’s experiences compared with type of mediation

As is shown, the children are positive to involvement in mediation, including in cases with a high conflict level (83% positive statements). Nearly 10% of the children in the cases with a high conflict level came up with negative and/or critical statements. When we compare statements in different types of mandatory mediation, we see that there are 80% positive statements in mandatory mediation in conjunction with separation, and 67% positive statements in mandatory pre-action mediation.

7 Summary and Concluding Discussion

• Children chose to participate when they were given the opportunity to do so.

• The children experienced to a large degree that they were able to say what they wanted to the mediator, including in cases where the mediator had assessed a high conflict level between the parents.

• Children recommend other children to take part in the mediation process. The children’s experiences and assessments of their own participation is only to a very small degree associated with the conflict level, type of mediation and degree of problem accumulation in the family.

• There are marked contrasts in what children convey in their “messages” to parents. This ranges from, for example, a wish that the parents are reunited, to requests for fewer arguments and less alcohol, or wishes of a material kind. Starting from what they regard as important in both their own and the family’s situation, they contribute to the agenda of the mediation. It also gives some children the opportunity to tell an outsider about insecure family circumstances.

Our study shows that children who are given the opportunity to speak in their parents’ mediation process will make use of the opportunity. This is in keeping with research results from the courts, which show that the vast majority of children take the opportunity to be heard in parental conflicts (Skjørten 2014). We have investigated whether the conflict level, type of mediation and degree of problem accumulation in the family are significant for the children’s experiences of being included in the mediation process, and we found that this is of very little consequence for the children’s assessments after participation. Whether the conflict level is high or low, whether we are talking about mandatory mediation in conjunction with separation or mandatory pre-action mediation, and whether there is a high or low degree of problem accumulation, has very little impact on how satisfied children are with being able to participate themselves, or on their recommendations to other children about participation. In the main, analysis of the qualitative data expands and confirms the following results. The majority of children are positive to children’s participation . A small minority wrote in their free text responses that they thought it was boring, unnecessary and difficult, that they felt there wasn’t enough time, that they felt pressurised, had been given too little information and/or were uncertain beforehand. None of the children said that they felt insecure or threatened by having their own conversation with a mediator. Children who accompany their parents to mediation are in differing phases of the changing family circumstances. Some have just been told, without any pre-warning, that their parents are getting divorced, while others have been living in a situation governed by conflict between the parents for a while. The children’s life situation also varies, and children have different competencies and predispositions in terms of being able to handle the situation that has arisen in the family. Through the children’s message we have seen that children face very different challenges in connection with the divorce. For some children their care situation is under serious threat as a result of the parents no longer living together.

The position of children in the family and in society in the Western world has undergone radical change throughout history. Today, children are to a much greater degree regarded as entitled to give an opinion—and with a right to speak up in cases that concern them. Children’s rights to both participation and protection, however, is still a challenge that creates uncertainty in differing sectors about which practices are best able to promote “the best interests of the child ”. In the mediation model, from which our data are collected, the consideration for children’s participation and protection is handled by clarifying the division between the roles and responsibilities of parents and children. This is concretised by definition and demarcation of conversation topic, and the points in the mediation process when children participate. Children do not participate in decision-making and are, for example, never asked where they want to live. We do see, however, how the dominant discourses in our society are coming through into some of the children’s statements concerning “fairness” in custody arrangements. In line with norms and policies of equally shared parenting, many children put forward opinions where a 50–50 division of living with each parent is regarded as the most “natural” and fairest solution.

The view of children in difficult life situations is often coloured by a one-sided opinion of “the vulnerable child”, or the child as “victim” of the parents’ divorce. In line with other age groups, children can be vulnerable and exposed, with additional need for protection, but children are also socially active beings who can influence both their own situation and their environment (James et al. 1999). Moving on from the rights given to children in the Child Convention and the mediation regulations that are established in Norway, the question is no longer whether children should participate, but how participation can be carried out “in the best interests of the child ”.

Children’s participation makes them visible as subjects with their own thoughts, feelings and opinions about the divorce process that they are part of. Not all children may feel the need to talk to a mediator, but even children in families where the parents agree may need it, as several of our informants stated. As previously shown by Haugen (2007), children’s experiences of a divorce and the establishment of new family constellations may deviate from those of their parents. It is difficult to predict which of the children have no need to have a conversation with an outsider and who may have the greatest need. Children in families with a high conflict level, and, in particular, children with a high degree of problem accumulation, may be the children with the greatest need for, and benefit from, their own conversation with a mediator. At the same time, as mentioned, it is often in such situations that children are not heard in a mediation process (Ask and Kjeldsen 2015). According to Langballe (2011), it is not damaging for children to talk about sensitive subjects; however, it may be unfortunate if the child is not taken seriously or believed or protected or if the child does not see any purpose in talking about sensitive topics to the adult. If information about unacceptable home conditions for children becomes available it is therefore necessary for the mediation authority to provide an adequate response, such as, for example, offering to help individual children and families or taking measures through collaborating agencies.

The purpose of universal arrangements such as mandatory mediation is to reach the whole population of divorced parents. When children are included, it means that the mediation authorities come into contact with a wide range of children—including those who previously have had no contact with the children’s services and who are in need of help. The handling of children and families with serious problem accumulation and conflict involves co-operation between family counselling and child protection services, the courts and other relevant authorities.

Increased participation by children in the mandatory mediation process clarifies the children’s position as actors/co-creators in the changing family circumstances. Through children’s actual participation in the mediation process, their position is “magnified”, and it is reasonable to assume that their indirect and direct influence in decision-making processes will increase and become clearer in the future. The position of children as participants might thus challenge and destabilise traditional hierarchies between children and adults. As active participants, children will in the future probably have expectations that challenge both mediation and parents in the changing family circumstances caused by relationship breakdowns.