A Child Inclusive Mediation Guide – as Featured in The Divorce Magazine 

12 December 2023 | Written by Jones Myers

By Nicki Mitchell, Jones Myers Family Law Mediator and Child Inclusive Mediator

In the podcast below, Jones Myers Partner, Nicki Mitchell, shares her extensive expertise on Child Inclusive Mediation with Soila Sindiyo, Founder of The Divorce Magazine as part of the magazine’s ‘Expert Interviews’ series.  

Explaining the pivotal role of Child Inclusive Mediation in a collaborative divorce process, Nicki explains why involving children in the mediation process can have real benefits for parents and their children and highlights alternative routes for separating couples which avoid the delays, costs and stress of going to Court.

You can listen to the podcast here [https://www.youtube.com/watch?v=AxsAMqn_CgA

Nicki is also an expert panellist on The Divorce Magazine’s ‘Navigating Divorce’ virtual event on January 10 2024 from 19:00 – 20:30pm.

Nicki will be sharing insights and answering questions on finding the right divorce lawyer, family mediation, collaborative family law and DIY divorce.

You can sign up for the event on www.thedivorcemagazine.co.uk 

For queries on mediation, child inclusive mediation or any aspect of children or family law, call us at Leeds on 0113 246 0055, Harrogate on 01423 276104, or York on 01904 202550. Visit www.jonesmyers.co.uk, email info@jonesmyers.co.uk or tweet us @helpwithdivorce

Jones Myers’ blog is ranked ninth in the UK’s Best 25 family law blogs and websites to follow in 2023      

Podcast Transcript


Whether you’re revisiting the conversation, prefer to read, or wish to delve into the details, this transcript offers a comprehensive summary of Nicki’s valuable knowledge and guidance.  
Soila Sindiyo
Hello everybody welcome to The Divorce Magazine, you know video interviews that we have on the series that’s called “Expert Interviews” and today we have Nicki Mitchell. My name is Soila, I’m Soila Sindiyo I’m the Founder of The Divorce Magazine and, I just love meeting our contributors and Nicki who’s a Partner at Jones Myers Family Law which has been contributing to The Divorce Magazine  since 2016, when we had just started so we have like 60 articles on the on The Divorce Magazine from Jones Myers so anybody who wants to know a little bit about this family law solicitors just go on there, you’ll find a lot of information about the processes and where they come from which, is the angle that I always get from your articles yours Nicki included is very child focused and trying to make divorce as amicable a process as possible, so really happy that we are having this interview with you and so, who is Nicki Mitchell apart from being a Partner at Jones Myers Family Law Solicitors? 
Nicki is a very skilled child inclusive mediator, and as well as a family mediator and a collaborative law um, practitioner. Nicki also has had extensive experience in family law, and in particular in financial issues that have to do with relationship breakdown, family businesses and where there are multiple properties involved, as well as that complicated matter of pension arrangements. 
So, this is Nicki we have her here, so thank you so much for coming Nicki and joining us on this one today what we’re going to be looking at is the whole issue of child inclusive mediation. And I would is there anything you want to add about your introduction by the way Nicki?
Nicki Mitchell
That’s very complimentary, thank you very much, I do have a kind of weird interest in pensions I have to say but certainly the ADR approach is absolutely right that that is, definitely the way in which I certainly and the firm as a whole try to approach dispute resolution within family cases trying to keep it away from the court try and keep control for the people whose lives it affects.
Soila Sindiyo
What does ADR stand for? 
Nicki Mitchell
Well in fact it’s now changed from Alternative Dispute Resolution, alternatives to the court – it’s now become known as Dispute Resolution, the idea being that that it is not an alternative that should be the main way of approaching it so it’s really anything that doesn’t involve, going to a court and asking a judge for a decision. Okay, so all the things you mentioned mediation, collaborative practice, and there’s also arbitration and private processes and so on – so all of that trying to give people, ownership and autonomy and so they can work out their own futures rather than handing it over to somebody else to do. 
Soila Sindiyo
Oh I like that I like the fact that they’ve removed the A and made it, yeah, it’s another way of getting divorced it’s not the alternative it isn’t one way and then also yeah, okay, that’s really good thank you thank you. So, but today we’re focusing on child inclusive mediation um, tell us what that is.  
What is child inclusive mediation? 
Nicki Mitchell
So, maybe I should really start with mediation a dispute resolution process, there are various different models but the kind of classic, conventional one is it’s just a meeting between, the couple, and an impartial mediator like me, who uses various skills to help them get to a position where they reach agreed proposals about their children about finances about whatever it is they need to discuss and it’s so it is it’s a series of meetings it’s you know they retain control, often there are children involved. Sometimes the mediation is just about resolving children issues, sometimes it’s all kinds of consequences  of relationship breakdown, all kinds of things that need to be talked about.
When it comes to children, in 1989, there was a UN Convention on the rights of the child and that provided at UN level that children’s voices should be heard in any proceedings affecting affecting them – so that hasn’t really happened very effectively in my view, despite the fact that was a long quite a long time ago. There  are other jurisdictions, Australia interestingly has a much better developed Family Justice System than we have here in England and Wales.
And so in Australia for quite a lot of years now the way in which they have worked to get the voice of the child heard, certainly within the mediation process, is by focusing specifically on the mediation process rather than courts and you know that’s not what we’re talking about here, is child inclusive mediation. So what it isn’t, is you bring a child in, to a meeting sit them down in front of the parents and say right what do you think, it’s definitely not that – it is about the child’s voice being heard. 
And so it is a separate, it’s within the process first of all the parents you’ll have a conversation with the parents, say “this is something which is a possibility what do you think?” Everybody would have to agree so the child or children and both parents would have to be comfortable with that there’s quite a lot of preparation for that because it’s really, really important, that everybody goes into it with the right intention and prepared for what might come out of it. So, what the child bit, is a separate meeting, a confidential meeting, between me as the mediator and the child or children, and generally speaking there isn’t there are no hard or fast rules about what age it might be, but generally speaking a child of around 10 sometimes a bit younger, and certainly younger if they are younger siblings of an older child to if you see what I mean. 
So it would be a separate meeting, sorry, you mean if they have older siblings then they can be, involved in the process I mean it doesn’t feel right, and I’ll come on to explain in a minute yeah so if you had a 12 year old and an 8 year old, the 12 year old, almost certainly would be, exactly the right age for this and in terms of family dynamics, and all children you know, needing to be heard, it would be wrong, to in my view to exclude the 8 year old.
As long as they want or everybody wants to do it, really tiny children clearly not, because you can’t have that kind of conversation with them so, there are no hard and fast rules about the age. That, going back to the Australian experience, there’s a lot of research, that says that children who have had their voices heard in this way have, have tend to have better mental health outcomes, as young adults, than their peers who haven’t gone through that but have experienced parental separation. 
And, so, that can be the only reason, it’s a strange one because I’m not a therapist, not trained as a therapist and it isn’t therapy and you make that really clear, but it’s, but the research suggests that just by feeling that they’ve been able to have a confidential meeting with somebody impartial, that that has a positive impact, yeah, on children as they develop.  
That’s really important I mean we see in studies that have been done because we know divorce can have, long-term effects on children, absolutely, if this is one way that that long-term effect can be eliminated or diminished, absolutely so it may be, that all that happens in that meeting is that the children get things off their chest, and then, they’ve been able to do that, the parents know they’ve been able to do that and that you know that hopefully that will benefit them in the future. 
And the reason why I say that might be it, is because the only thing that you can share from that confidential meeting with a child is what they agree you can share. So, it’s possible that some children will say “I don’t want you to share anything”, mostly, I can’t wait to tell you what they want you to tell the parents, and it’s not always what the parents want to hear, or expect to hear, but it is really, really important that everybody understands that that meeting is for the child it’s confidential to the child and anything that’s going to be shared is with the child’s expressed permission. 
So more often than not they’ll say things “I just want to just stop arguing”, you know or, it, it you get all kinds of things but, the reason why it’s really, really important to prepare parents for this is because there is a risk, that parents will think, well they’re just going to tell us what the answer is. The decision making remains very, firmly with the parents.  
Soila Sindiyo
Okay, that’s, that’s one part that I really wanted to know about what happens at the end of that, and also I have so many questions that are going through my mind you know coming from my background as a psychologist and working a lot with children, and I have so many questions that are floating around in my mind so I like the idea that it’s a safe space for children to just come and, talk and say. 
Do you have some kind of way or assessment where you realise that actually it wouldn’t be appropriate to do child inclusive mediation, if there’s been possible coercion or parental alienation? 
Nicki Mitchell
Absolutely, it is by no means. In theory, this is something which should be offered, to all children but in practice, the mediator manages the mediation process. As a mediator I can make a call you know I will not infrequently say right we need to stop that now, because this isn’t for whatever reason not necessarily reasons of abuse but, you know it’s just, all becoming unproductive, certainly if there’s any suggestions becoming abusive anyway and similarly, that first meeting with the parents is key. 
So there are many reasons including the ones that you’ve said but also, if I think that really, one parent if I think anybody’s going to coach a child, or put pressure on a child, or, if the other thing to expose what do they, what if, there is feedback that they don’t like. So if a child tells me no I do actually want to stay with Dad, and just for example relatively common, thing that we could talk about in mediation, and Mum really doesn’t, expect, to hear that, because the child might have been saying something different as you know you’ll know as well as I do that children want to please and protect don’t they so, they will tell parents different things not because they’re dishonest, but because they’re just, in a really impossible position. 
So you know there are cases where the feedback might be entirely unexpected and unwelcome and where, there is the potential for that to have a prejudicial impact on the relationship between the child and that parent, or for them to put pressure on them or whatever you’ve got to spend a lot of time, talking about all of this and assessing it and if there’s any suggestion of that it doesn’t happen. 
Soila Sindiyo
Do you have the session with the children separately or all together? 
Nicki Mitchell
Both, both so I would tend to start off with them all together, okay, and then, agree with them and that we spend time, separately. 
I’ve never had anybody say “no we’re not doing that”, right, they, they tend to be but obviously you start off and you’ve got games to play to kind of put them at ease and have a bit of a chat and so on and once you’ve got to that point then they’re generally quite happy. 
I wouldn’t make, especially you know I wouldn’t make a child do that but it’s really interesting that they often do have quite different things to say, and they understand that. The children I’ve seen respect the fact that each one of them will have a different view and needs to be able to say that, so, yeah, it’s because it’s a dynamic thing and it’s also the individual perspective. 
Soila Sindiyo
Yeah, I work a lot with children and families and in my own private practice I work a lot with family or couples or parents who are going through divorce and they’re concerned about their children, or have been Court Ordered to attend um triple P parenting programs so that they can either regain contact and, and so forth and I come from that angle, you know that where please listen to the children’s voices, please be health centred child focus it’s not about you here, it’s about them. 
So what, what would you say, in your experience what have been the positive or the benefits of child inclusive mediation for the family and for you’ve mentioned a couple in terms of long term, um effects um, but within the process when you’re mediating and you have the children and you give feedback, what has been your experience um, in terms of the direction that the mediation has taken or changes that have happened? 
Nicki Mitchell 
I have had cases where it’s been very difficult, so I’ve and in a case like that where I would see the parents separately at the beginning of the joint session, and that takes some time then to manage and, because I can then give the bad news the ability to give the unexpected news to one parent and ,you know also manage the other one’s expectations as to how we’re going to address that when we come back together. But generally speaking, if you’ve got it right and if they genuinely do want to listen it can be really helpful, and again you’re getting it right involves, the parents being really clear. It’s still their decision, so they don’t have to go along with whatever they said, but you know parents, are interested in all the children say generally speaking, and, you know it has informed, the choices that parents have made in a very positive way.  
Soila Sindiyo
Do you ever have parents who are separated, and are trying to just come to the best possible scenario for their children who come in just for child inclusive mediation? 
Nicki Mitchell
Yes, the thing is, in terms of financial work, you know the financial legal work, if parents aren’t married, the finances are actually quite straightforward so often they don’t need to mediate all that. They’ve sorted all of that out so it only tends to be in the context to the divorced, when you’ve got the financial stuff as well, and there are lots of unmarried families aren’t there so an awful lot of at cases where all they want to talk about is child arrangements. 
Soila Sindiyo  
Are there any disadvantages to child inclusive mediation? 
Nicki Mitchell  
If you get it wrong. If a parent does bring pressure on a child. Parents will often be suspicious that the other has done that.  They’re in a position of fear that it’s entirely natural to be suspicious about  what the other parent is saying to a child when they’re not there but you spend time with the parents at an initial Mediation Information Assessment Meeting, a MIAM at the beginning with each of them spending time getting to know them, understanding where they’re coming from. It’s really useful to spend quite a bit of time on that, and then you’ll have them together for a joint session so you do really start to get more of a feel for whether or not you think the impact of that process is going to be prejudicial because a parent will use it in the wrong way. 
So, if you don’t spot that for whatever reason, and nobody’s perfect, the potential is there for it being prejudicial to the child. We never see it as mediators, we never really see what happens. Further down the line it’s just you’re just involved in resolving that dispute. 
Soila Sindiyo
How many sessions do you see the children for? 
Nicki Mitchell
Usually one, usually just one. So it would usually be, the individual meetings, the meeting with the parents to talk about it, explain it and make sure everything’s right, then you’d write to the child. So I write a handwritten letter, basically saying “you don’t have to come in but your mum and dad have asked me to write to you because they think it would be good for you to have a conversation with me”. So they tell me what’s going on for you, so maybe coming from mum and dad but you know, he has said duh, duh, duh, duh, it’s me you write to them as well and say I write to them and say mum and dad think it would be a good idea, you don’t have to do it if you, if you don’t want to, but, you might it might be nice for you to be able to have a chat about all of this. 
Being confidential about having to break confidentiality if they tell me something that’s a safeguarding issue and then, they could have a session with, with the children, and then shortly afterwards, a session with the parents feedback session with the parents, it’s really, important that that’s as short as possible so, you know, nobody’s worried about what’s been said what hasn’t been said, so that’s generally how it works. 
Soila Sindiyo
I kind of know, the answer to this question seeing how our interview has gone, but what has been your experience of child inclusive mediation, compared to the traditional forms of divorce?  
Nicki Mitchell
Mediation as opposed to traditional, it’s, you know, “I’m going to see my lawyer, you’re going to see your lawyer”. You can probably see this coming but it’s I cannot, say strongly enough, how much better it is, if people can be helped, to keep control of their future, to keep talking about their children. 
I think the reality is that even, whether I mean it’s like any profession, there are some really, really good practitioners out there and there are some who, approach it differently, who perhaps don’t kind of get the reality that these are people’s lives. It’s not about scoring points and showing how good you’re at the law or anything like that. 
And there are people out there generally speaking in a pretty enlightened profession but there are people out there so when you get into, you know somebody goes to see a solicitor and straight down the litigation route I can’t tell you how damaging, that is for everybody. I mean it’s bad enough for the lawyers really, it’s not a great job it’s not a great way of earning a living I mean, you know the whole time people are firing things that are trying to score points is horrible and it’s not even your life. 
So, you know, what mediation, collaborative practice, all of those things. The advantage of those things is that people keep control of their own lives and, you know, a lot of lawyers would think oh well, they don’t people don’t know what the options are when they come in. They think it’s court, yeah, but I, a very, I can’t really remember anybody who, who you know by the end of the first conversation wants to go to court. 
They might think it’s inevitable because they think that their ex, will do that but the reality is, quite often they don’t want to do it it’s fear isn’t it, it’s all about people wanting to protect themselves it’s that kind of fight or flight thing. It’s a clinical, cold process, it’s highly discretion there’s lots of the things that actually matter to people never get mentioned in court proceedings. 
Soila Sindiyo
So it’s very unsatisfactory all along and all of these things are said in a formal ways, sometimes by pompous lawyers in the courtroom, it’s really, it’s really damaging. Yeah, that I try um, we try to have on The Divorce Magazines when we have contributions you know people will submit articles, that are verging or, leaning very, much towards this part of um, acrimony or, triggering or then we, we don’t talk about that we just want articles, that are because let’s not. Okay, divorce is not pleasant for anybody, no matter which way we go. And I usually say, for the child the separation of the parents is a big deal, but what could be even bigger, which could be the primary trauma is how the whole process is handled, yeah, conflict, yeah, so yeah exactly conflict so in The Divorce Magazine we really try, to not try, we, we I think we do manage to not have articles that are you, know going in that direction and keeping it, letting people know there are other ways of dealing with it and if you have a solicitor these are the things that you need to think about and all articles are contributed by experts like you, you know family lawyers and so forth. 
So speaking of the different ways that divorce goes, you know the different processes you’ve mentioned some, I’d like to find out a little bit more for instance you mentioned a MIAM. What is a MIAM? 
Nicki Mitchell
The MIAM is the first stage of the mediation process. So it stands for Mediation Information and Assessment Meeting, so it’s a one-to-one meeting between the mediator and one of the couple, one of the separating couple, where it’s not about solving anything, it’s not about the mediating making judgments or anything it’s about understanding what the issues are, understanding where that person is coming from, giving them information about the mediation process, and coming to a decision at the end of that, as to whether they’re willing to give it a go. 
And it’s the MIAM, so people get confused the, the court rules now say ish, they say there are exemptions that if you want to make an application to a family court for a family order, then you have to have had a MIAM. You don’t say you have to mediate it because you know you take horse to water and all that, but you have to have had that information. So that’s what the MIAM is so hopefully what it is, is a preliminary to a mediation process but if not it’s, it’s a conversation, to inform people about alternatives to court applications.
And I’m assuming that, correct me if I’m wrong that the MIAM was put in place in that way, you know preliminary to, going to court in the hope that some people will be diverted into a conversational level, absolutely, absolutely, and it does work but it, it often works I mean I, and many mediator colleagues would say, if you get somebody in, it’s very unlikely they’re going to say they don’t want to do it when you explain how long a Court’s going to take do you know how much it’s going to cost you, that kind of thing. 
But you do still get referrals and I just I just needed to sign a form there’s a challenge. I don’t think that’s going to happen, so yes, that’s the idea and courts are getting better, because for years there have been regulations in place and what people have been doing is just say there’s an exemption, there are more pages on the Form A which is the financial form, right, about exemption from mediation than there are about anything else so, there’s all kinds of you know, particularly people affected by domestic abuse Etc. Although, you know personally I think an initial meeting to properly screen that, yeah, rather than a solicitor, ticking a box, is I think, don’t think that would be a bad idea. 
Soila Sindiyo
If my ex declines going for mediation, is that taken into account when going to court? 
Nicki Mitchell
Yes and no, there’s a lot of confidential issues around mediation so the mediator isn’t going to be, giving reasons apportioning blame etc. So, in your situation I’m still contacting you, okay, so if you come to me for a MIAM, I would still contact him and say “why don’t you just come for a chat”, so there is still, whatever he says, there’s still that but if he still says no, the courts are getting much better at A. Making sure people have actually not just ticked an exemption box for the sake of it and have seen that and B. Adjourning things and saying I saw a couple last week, is that exactly that had happened, applications being made to the court, the court said come on you can sort this out to between yourselves, go to mediation. 
Soila Sindiyo
Yeah, and I’ve had a few like that, so courts are becoming much more, come on this is, this is parenting it’s not law it’s parenting. Have a supported conversation it’s not here’s a conversation, but have one supported by the right professional. That’s really good to hear, so Nicki this brings us really nicely into, my last question, which is, we started off by talking about the different ways of mediation, of divorcing now the different, different processes that are out there, can you tell us, you know we know the traditional one I go like that again in terms of lawyer, lawyer couples go to court and, and all of that or they don’t go to court but it’s just that the lawyers speaking, um and then we’ve talked about mediation, family mediation and we’ve talked about the MIAMs and what that means, and where it goes and we’ve talked about child inclusive mediation but what other, other ways are there of going through the divorce process.  
Nicki Mitchell
I think what happens is, you get to know somebody, spend some time at the beginning, you kind of assess where they’re at – and you can do whatever it takes and you commit. The thing that I find really exciting now about the way family law is developing – and it’s been a long time coming – is that there is now an openness to changing tack as you need to. If  something doesn’t work find a different way of doing it it’s not just you go to mediation, if mediation fails you go to court, there are lots of other ways that you can do it. 
So, the main way in which that kind of process is an option is collaborative practice. The collaborative practice is, a bit like mediation, but it’s a team thing so it’s the couple and their lawyers around the table, they sign a contract that says they’re not going to go to court they’re going to sort it out around that table, they can then bring other professionals into that so whether that’s pensions experts, accountants, valuers whatever, they can actually come to the table, have a proper conversation so everybody understands things, and questions can be asked. 
Soila Sindiyo
And then, they reach an agreement and that’s sorted by the lawyers. So that is a really, effective process, a quite kind process as well and it’s team problem solving at its best and, generally speaking that does work. Are there solicitors from two different firms, yes, they come together then the accountants and everybody else that you mentioned are they from, are there two sets of accountants, two sets of, no, okay, there’s just one so the idea is that and I do this in my mediation practice as well. 
Nicki Mitchell
Quite often with pensions, you know, we need some pensions of complicated things, we need somebody with our expertise, let’s send them the information so this is what we want to achieve and they’ll come and talk to us about how that can happen. So that can happen in a collaborative process but it’s one, it’s what’s called a ‘Single Joint Expert’ it’s the same principle in court, that instead you know gone are the days where, you would have you know husband’s accountant, the wife’s accountant, and a big scrap about it the court says “no you need to agree one person to do it they’ve got the expertise, let them do it.” 
So, those people can come into any process but what, what I find most, exciting about what’s, maybe sounds a bit, wrong to be talking about it but I mean as professionally exciting for me in terms of, seeing really positive change, is that there is an acceptance that there are different models coming out and we’re in the process in York of thinking about, how we can work, by putting a team together so instead of, somebody going to one solicitor or the other person going to the other solicitor, them having completely different styles and everybody ends up confused and, they can’t agree what to do. 
Almost you could have it can have a process and it does work there’s a, we spoke to some people some, fantastic women in Melbourne in Australia they came over and spoke to us in the summer and what they do is a couple goes, go to them as an organisation and they say right okay this is what you need in your team, you need, you get a lawyer each because you need that guidance, but actually a lot of the work can be done by a financial person because that financial person can get all the financial information together. That saves your lawyer time, you would need some support from a divorce coach, family consultant, various different, words for them but they tend, they are people who will be there skilled people who are there to provide that emotional support, that again reduces legal costs because people, are reliant on family lawyers, to get them through things and that you know it’s part of the job that I like best it’s forming those relationships but I’m not, I’m not trained as a counsellor or you know anything like that so you get, you bring in the people you create a team and then and from the start the choices to work together to get where you need to be. 
So we’re looking at ways at the moment in York of trying to make that work talking to different professionals and talking to somebody who already does it in the south of England and trying to put that together. It sounds like a very holistic way of treating, a divorce because divorce means so many different things it’s not just a bit of the couple, there’s the loss of the family home, there’s the loss of the future, the loss of the children’s idea of what life would be like, your idea, you know there’s so much you know the plans and then, not even talking about the pain and you know the hurt, what you’re, feeling and then you know if somebody has not been working now is going to go out and getting re-skilled it’s such a huge, emotional change.
Soila Sindiyo
Thank you so much Nicki, yeah sure I’ve enjoyed it actually yeah, I might get in touch with you because I want to talk about the pension side of, of divorce because I think that’s what um, has been, it’s spoken about but only, it feels like when people just decide we’re breaking up it’s like who’s going to get the house, and then you don’t think about the other things that come after that or on the side of that or um, it would be good to have another interview that’s about the financial side of, absolutely and pensions weirdly pensions, I blame my dad, my dad was an accountant so I do have a natural streak of me that likes the numbers, so and pensions are really complicated and I love it I do find it really interesting although I don’t share that with everybody because people find that strange. Which is all you need. 
I like that families you can do the numbers yeah, yeah. Thank you so much, thank you very much and thank you for all the contributions from you and from Jones Myers on to The Divorce Magazine, it’s great and I love the ethos, it’s very clear that what you do, it’s a, it’s a positive force it’s like no look at this yeah, make, make choices make better choices yeah, with the right information people often make poor choices because they don’t got the right information. Exactly, exactly and that’s why we only take contributions from, divorce professionals. Anybody else it’s maybe from their own experience of divorce, or step parenting, but when it’s giving, when it’s sharing knowledge about divorce and the divorce process, only from divorce professionals other no bloggers or writers, no you need to be able to be writing for The Divorce Magazine, thank you so much.
 
 
 
 

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