By Linda Kochanski
The following excerpt is from the Family dispute resolution section of the Family Law Review.*
Recent amendments to the Family Law Act 1975 (Cth) have acknowledged the importance of significant other persons in children’s lives. In particular, grandparents and their role in the family system have come into focus in both the Family Court and the family dispute resolution arena.
For grandparents, the breakdown of their child’s marriage not only causes emotional distress for them but, even more importantly, it can mean the loss of connection and care of their grandchildren. Many grandparents have become significant and primary carers for their grandchildren while their parents are working or due to other family circumstances. The sudden loss of contact can be traumatic for all concerned.
When grandparents find themselves in this position, the avenues to resolve the disputes are often limited. As many grandparents are in the retirement phase of their working lives, financial conditions will often preclude legal action through the Family Court. Also, many of the issues that cause the divides between family members are as much emotional and communication issues as they are legal issues.
These are the very circumstances that FDR processes have been designed to assist to resolve. Certainly, both in the private and the community mediation sectors, there has been a rise in the number of grandparents seeking to resolve family issues that preclude continued connections between grandparents and their grandchildren. The FDR process is highly appropriate for multigenerational issues due, not in part, to its cost and time effectiveness. Family dispute resolution also offers the parties an opportunity to work through the emotional issues that are often at the heart of these disputes.
For the process to be successful, the mediator must ensure that all the appropriate decision-makers are present at the mediation and that any solutions identified are seen as workable by these decision-makers. The intake process in a multigenerational matter should be conducted extensively. The mediator should conduct an intake interview with all relevant family members to determine with whom the mediation should be conducted. Assumptions should not be made about who are the appropriate decision-makers.
In some cases, it may be only a single grandparent that has issues with their estranged son or daughter-in-law that are prohibiting the grandparent-grandchild relationship. In other cases, it may be a multiparty dispute, with both the maternal and paternal grandparents as well as the parents involved. Such a dispute has logistical issues that require consideration, including the number of mediators involved, the professional disciplines of the mediators, the physical setting for the mediation (number of rooms, location) and how many sessions may be required. Multigenerational family dispute resolution may require a number of mediation sessions with a combination of different parties within each mediation session, eg parents together, one parent and one grandparent, grandparents both maternal and paternal. This assessment needs to be made at the intake stage to allow for appropriate forward planning for the mediation sessions.
In the intake session it is also important to ascertain the motivation of the parties coming to mediation. Why are they coming now? What circumstances have changed? Why have the connections in the family changed, and how can things change for the connections to be re-established? These are questions that need to be addressed within the mediation intake session.
For many grandparents the opportunity to discuss the issues and what is happening in their family through the intake process is enough for them to feel heard and understood and, ultimately, mediation may not be necessary. As most grandparents of today are baby boomers, and of a generation that tended not to talk about emotional issues, the use of FDR processes opens a lot of different avenues for them; not only mediation, but also counselling or family therapy. Referral for grandparents is often important at this time.
Any multigenerational dispute requires a general understanding of the family dynamics and connections. It is often beneficial to take a multidisciplinary approach to the mediations and have mediators from a social science background working with a legally trained mediator.
There are some common concerns that often arise as agenda items for discussion in multigenerational disputes. The issue of communication or lack thereof is a recurring issue in these disputes. What mediators need to ensure is that they clarify the issues around communication: how communication is to be effected between the stakeholders; how communication between the grandparents and the grandchildren will be effected; what will be discussed; how frequent that communication will be; and how issues around communication will be dealt with.
While it may seem logical to discuss these issues, they are often the most difficult to resolve. Many parents feel threatened by the relationship between grandparent and grandchild and therefore try to limit the communication so that no “undue influence” may be exerted. It is often left to the mediator to explore those concerns and work with the parties to address them and clarify what roles each of the parties play in the children’s lives. This process should be explored initially in the intake by assessing parties’ expectations and using a combination of joint and private sessions to explore the realities of the situation with all parties.
Another issue that is often raised in multigenerational mediations is the children’s wishes and the interpretation of those wishes by the parties involved. It is not uncommon for the grandparents and the parents to express very contrary views on the connections between grandparents and grandchildren. It is also not uncommon for each party to express that they are only representing the views of the children as presented to them. While children will often feel torn between two parents, many children may feel even more “caught in the middle” between a parent and a grandparent. The multigenerational mediation needs to ensure that the children are not caught in the middle and that strategies are discussed as to how that may be achieved. It may as simple as resolving the issue of communication, or it may be as complex as bringing in a Child Consultant to talk with the children and provide them with a voice in the mediation room. Again, whether this is needed should be consistently assessed from the intake through to the various mediation sessions.
One of the other great benefits of a multigenerational mediation is the ability to review the arrangements on a regular basis. Review periods are often included in mediation agreements between parents as there is recognition that as children grow their needs change and, as parents, there is a need to be responsive to this. In the context of multigenerational mediation, it is not only the children’s needs that must be considered, but also the circumstances of the grandparents. While older grandparents may want to continue to have strong connections with their grandchildren, they may find that health and physicality issues prevent this from occurring. Incorporation of a regular review of the arrangements allows this to be monitored and for decisions to be made accordingly.
Family dispute resolution in multigenerational disputes is a flexible process that can accommodate two to 10 parties. It has a flexibility not found in court proceedings. Certainly the courts would prefer these matters to be resolved through mediation, rather than having to make legal rulings that bind so many. The FDR process allows the parties to tell their stories, and for many it provides an opportunity to seek out professional advice and obtain referrals to deal with issues that are often confronting and distressing. It also provides the opportunity for fractured families to talk and produce a way for all to move forward in a less adversarial environment.
It should be noted that many community-based FDR services work with multigenerational disputes and some private mediators also conduct them. It is wise to check the extent of experience that mediators have had working in this area because some experience and expertise is required.
*The full citation for this section is: (2011) 2 Fam L Rev 32.