Role of Mediation in Child Custody: The Current Scenario Dr.Vidyottma Jha, Advocate, Supreme Court of India

With the upsurge in divorce cases in past 20 years, there has been a push for mediation at the national level in order to address the issues of child custody in such families where the problem of divorce has set in. In mediation, a third party who has no personal interest attempts to keep the communication alive between the parties until the conflict reaches a solution. Mediation basically is a cooperative effort where the primary focus in a case related to child custody is to encourage cooperation and communication among the members of family and the child. Besides, in such cases the unique preferences of each child is also considered. Hence, mediation instead of focusing on right and wrong, attempts to create a viable solution to meet the ongoing needs of the family, specifically the ‘best interest of the child.’ The idea is to benefit the child and assure that both the parents have a substantive role in the child’s future while it also maximizes the child’s relationships with their parents who are heading for divorce. By way of this arrangement, the issue is either settled with the idea of shared parenting or what is the most suitable option in the interest of the child at the given point in time.

The practice of mediation in custody disputes came up as a byproduct of various causes such as the adoption of a no-fault divorce system in the 1970s, the excessively busy court calendars and a new social paradigm which recognizes the problems that are created by adversarial approaches. This is because due to their young age the couples are more likely to go for a divorce than staying in a marriage because of the emotional changes they undergo. Hence, the custody mediation is primarily a collaborative approach to child custody disputes which aims to further open new lines of communication by considering several options, discuss each parent’s and child’s interests and produce resolutions that work for everyone.

Of late, the concept of mediation has gained exceptional popularity as a substitute for litigation in disputes that are related to custody. Mediation is a method which promotes cooperation between splitting parents and lightens the overwhelming load on the overworked courts.
Though there are number of benefits, there are a few downsides also. The downsides include the potential for violations of professional ethics, the necessity for outside legal representation, and the possibility of the mediator mostly a lawyer or mental health professional who at times overstep their role. Apart from that mediation might also require more judicial scrutiny before a final order is made which may be even drag the issue and consume more time. Besides, in mediation there are number of sessions held and parties may have to visit the courts or even if they appear online give up on their work for that particular time or day making it not inherently less expensive than litigation. Additionally, mediation is inappropriate in some situations, including those involving multiple social agencies, serious mental health issues or anti-social behavior, and cases involving physically abused or neglected children.

Therefore, the fundamental benefits of mediation in the cases of child custody includes the opportunity for resolving the disputes between the parties amicably, also mitigating negative custody disputes and the consequences for parents and children who happen to be a part of the process. The judicial system cannot manage or enforce shaky and fragile relationships of parents. Mediation means savings in time and money for parents. Thus, mediation is a feasible alternative to litigation in child custody disputes; however, it requires a set of ethical considerations and analytical design. Child custody disagreements could be emotionally charged and difficult for families. Thus, mediation is basically a process which is aimed at reducing the severity of emotions, serve the child’s best interests, and help parents to jointly arrive at practicable options at such critical time because establishing child custody arrangements could be arguably the most complex part of separation or divorce. The emotional distress and trauma is felt by both the parents and the child.

Principles of Mediation in Child Custody

• Voluntary Participation: The courts require the couples to meet with a mediator
  but despite that mediation is in itself a voluntary process. The parties cannot be
  forced to settle the case and they can proceed to the court if the mediation is not
  effective.
• Confidentiality: Confidentiality is the primary aspect of mediation. Whatever
  transpires between the party and the mediator during the process of mediation is
  confidential. It can only be broken in rare, serious exceptions such as in the cases
  concerning safety and welfare of the child.
• Neutral Third Party: A trained neutral mediator facilitates communication
  between the parents and assists them in reaching their own agreement. The
  mediator does not make decisions for the couple.
• Focus on Child Welfare: In a child custody mediation, the best interests of the
  child is the most important consideration. Mediators assist parents in developing
  parenting plans that address the child’s welfare and best interests.
• Enforceable: Unless a settlement agreement is agreed upon, a mediated
  settlement agreement is final as signed by the parties and the mediator. If a
  settlement is filed with the court, it is as enforceable as a court order.

The Legal Framework and Child Custody
The legal framework with respect to child custody is secular. Despite the various approaches and responses by different religious communities the goal is based on the principle of welfare of the child. Hence, the overarching principle: “the best interests of the child” in India the paramount and overriding consideration in any custody order. The court may consider: child’s age, gender, and wishes, if the child is mature enough to express their views; conduct, character, and financial means of the parents; ability to provide a stable, safe, and comfortable living situation for the child; child’s bond with both parents.

Legislation Related to Child Custody

• Family Courts Act, 1984: This act creates the family courts which are
  specifically designed to resolve family disputes including child custody matters,
  wherein the courts are empowered to promote reconciliation and settlement
  through mediation.
• Guardians and Wards Act, 1890: This is a secular law that allows for the
  appointment of a guardian over a minor’s person and property. This law is
  applicable to all communities.
• Hindu Minority and Guardianship Act, 1956: Under this Act, the mother is the
  preferred custodian of a child under five, unless the Court finds otherwise. For
  children older than five, either parent can receive custody, however, societal
  norms often favour mothers as primary caregivers.

THE PROCESS OF MEDIATION IN CHILD CUSTODY CASES
The mediation process begins with an initial meeting, where the mediator evaluates the situation and sets expectations for the upcoming sessions. In this phase, the mediator is working on building trust, confidentiality, and neutrality to ensure a safe space for honest dialogue. The mediator will begin to build a balanced platform for communication and ensure both parents are validated, and it further provides the framework to engage in productive dialogue. The mediator can also identify any concerns, or fears addressed, further building rapport and clarifying the roles and goals of all professionals and parents. The groundwork is
established for a mediation process to occur.

Facilitating Communication and Negotiation
The basis of effective negotiation is primarily through communication, and mediators will adopt techniques like advanced listening to develop better empathy and understanding to include, not place any kind of blame. Parents are encouraged to consider the child’s interests, focus on finding agreements, while avoiding leaps back into grievances from the past. Mediators assist in communication while also dispensing the discussions and addressing any need to manage emotions and intense feelings that may surface throughout the mediation. In this way, a sense of agreement strides through empathy from the parents, and
they can mutually choose collaborating, to use child’s best interest over personal differences, and develop a custody schedule that puts the best interests of the child first.

Creating the Agreement and Finalizing the Agreement
Once the parents have reached an agreement about custody, the mediator will draft a formal document that will contain the agreed upon order. This step helps ensure the agreement meets the legal requirements and is enforceable for the protection of all the parties’ rights. There is usually an additional legal review of the parental agreement in order to be sure that what is in it is fair and correct. Once it is finalized, the agreement is the binding order that the family will follow and paves the way for each parent to see the future of their family. By having a written agreement in the beginning, parents can find greater clarity and stability of protection for the future of their children. The issues such as complete visitation and parenting time schedules, holidays, vacations, and birthdays, transportation to and from each parent’s house, decision making about education, health care and other future decisions, other issues which interrupt a child’s day to day experience of the types of activities they indulge in such as extra
curriculars or special needs.

LEGAL AND EMOTIONAL FACTORS IN MEDIATING DISPUTES
Legal Parameters and Requirements
Every state has different legal parameters for mediation that must be understood in order to navigate mediation successfully. Some states require mediation before commencing litigation whereas there are other states which do not subscribe to it. One of the potentially valuable components about mediation for parents is to understand the way in which their rights and responsibilities will affect the decision-making process. Having some guidance from legal advisers may serve to assist parents in understanding their rights and responsibilities prior to entering mediation, and therefore, also understand what they can expect during the mediation process. The ability for families to have an understanding of the legal parameters of mediation which can in addition help families to limit delays and assumptions about reaching the best outcome possible for their child.

Emotional Consideration for Children and Parents
Mediation can be the less adversarial option as compared to engaging the formal court process or engaging a third party to help resolve conflict that may include custody disputes, however, mediation can still be emotionally taxing. An unresolved custody dispute can create uncertainty for children; therefore, parents should stay focused on the stability of their child and their child’s emotional well being. Parents also ought to utilize strategies to cope with their own stressors,
e.g., open communication, mindfulness, or counselling. Addressing emotional health throughout the mediation process can serve to be beneficial, and help parents feel more in control of their own emotional responses and their children’s responses, and to help limit unnecessary tensions and disturbances for all individuals involved in mediation, potentially contributing to family relations.

CONCLUSION
The concept of child custody mediation should shift from traditional parental decision-making models to family-centred decision-making so that the children may have a voice. The current child custody mediation process should reframe the issues in the context of collaborative decision-making, ultimately expanding mediation to be ‘beyond alignment of parental views.’ Recognition of a slight modified child inclusive mediation model, is recognition by family lawyers and judges that children have a right to be heard, that their own views should weigh appropriately in their parent’s decisions when the parents separate. This doesn’t mean child should determine the outcomes in decisions, but that they have an opportunity to be heard. Working with qualified mediators to provide child’s input as an aspect of the mediation will provide children a greater sense of control, will lessen inter-familial disputes, and assist the parents in entering into greater durable agreements.