The mediator's approach to children's participation in family mediation: A comparative study in Lithuania, Poland and Ukraine

Abstract

Both the Council of Europe's Guidelines on Child‐Friendly Justice and Article 12 of the United Nations Convention on the Rights of the Child strongly emphasize the child's right to be heard. The European Commission likewise supports measures that ensure the protection of children's rights in the context of their participation in judicial proceedings. The best interests of the child must also be taken into account when, during court proceedings the parties are referred to mediation. The purpose of such referral is to replace an adjudicative decision, representing external interference in family relations, with an agreement independently reached before a mediator on issues essential from the child's perspective. Since the legislator allows the child's views to influence judicial decision in matters concerning them, such influence should also be recognized in mediation. In practice, the participation of children in mediation remains a matter of debate and elicits diverse attitudes among mediators. Much of this controversy stems from uncertainty about the available tools that can be applied in mediation for this purpose, in contrast to judicial proceedings where the rules and methods of hearing the child are usually set out by law. The study examining mediators' attitudes toward involving children in mediation was conducted in three countries with different legal frameworks and models of family mediation. This comparative approach provides a sound basis for drawing more general conclusion ‐ at least within a specific regional context. In Lithuania family mediation is mandatory. In Poland it is entirely voluntary and dependent on the parties's consent. Whereas in Ukraine, the development of family mediation had long been driven mainly by practice, as the Mediation Act was adopted inly during the research period and thus did not affect the findings. This raised important, cross‐cutting question: does the existence of mediation‐related regulation, or the model adopted, influence mediators' beliefs and attitudes toward involving children in mediation, and what other factors ‐ legal and non‐legal ‐ influence this. The results confirmed the universality of the examined issues and the similarity of mediators' views regardless of nationality or national legal frameworks ‐ both in relation to resolving disputes arising from parental separation and to the practice of mediation itself.