“Best Interest of the Child" Easy to say it - but how to find it?

Anyone familiar with Canadian family law has heard the phrase “best interest of the child”. It’s the ONLY criterion a judge can use to decide on disputes between parents. That says a lot. The convenience of the adult doesn’t matter, only the welfare of the child(ren). 

In my experience as a family mediator, working with parents getting divorced, this “best interest” principle provides a solid foundation. If adults disagree on any parenting issue, the only argument that works is to explain how your position promotes your child’s best interest. 

It is an elegant measuring tool. It banishes all discussion of who is a better spouse, parent or person. Canadian Family Law has been a no fault process since 1968. Instead of judging who was right or wrong in the past it simply seeks the best decisions for the children’s future. 

But like many enlightened principles, the devil is in the detail. How do you predict what’s in the child’s best interest?  Let’s see how this can play out in key issues. 

Should We Divorce? 

Does our child fare better if we stay together, or if we separate our homes and financial resources? Contrary to popular belief, divorce can actually be better for children. Child psychologists generally agree that the single greatest predictor of long term mental health issues for children is not whether their parents were divorced, but whether they were exposed to prolonged, unresolved conflict. Cold, silent conflict is as harmful as the loud, hot variety. So the verdict is, if you can’t resolve your ongoing conflict, the best interest of the children may well be to separate. 

What Parenting Schedule? 

This can be intensely difficult to decide. Women are more often the primary caregiver for very young children, yet mom needs to let go eventually because close bonding with dad is equally important. Shorter blocks of time with each parent work best in the early years, while older children thrive on less shuttling back and forth. In other words, schedules should evolve over time.  To do that without conflict, positive communication is essential, which is one main benefit of mediation over court. 

Parenting Style – Hers or His?  

Both. Mom might be strict and dad more playful. Or dad cooks vegan and mom orders out. If you’re living in separate homes this isn’t your problem. When the kids are with you, do it your way, and give your ex space. Kids benefit from the best of both worlds. Instead of worrying, try having faith in their natural intelligence. In the long run your kids will gravitate toward the parenting style that is most healthy for them. 

Who’s the Boss? 

In my child protection training I learned to “give the child a voice, but not the choice”. Adults are responsible for decision-making.  But decisions truly in the best interest of the child require the adult to be attuned to their changing needs and emotions. That means asking. And listening. And maybe inquiring about the solution they think is best. This begins an early training in thinking through the pros and cons of difficult decisions. Although the final decision is yours, the more you collaborate with the child on arriving at it, the more empowered by it they will be. 

I “best interest” principle may not be easy to employ, but it provides a wise guide to our thinking. 

ABOUT THE AUTHOR

Mike MacConnell, founder of Reflective Mediation, is an accredited family mediator, conflict coach, educator and author. He is the highest-ranked mediator on Google in the greater Toronto area, with over 180 5-star reviews. To book your free consultation click here.

Why Mediation Works

People hate to be in conflict. Shifting the lens can help.

As a mediator, I facilitate difficult conversations, most often between family members whose emotional issues with one another may have been brewing for decades. The threads of misunderstanding are always difficult to untangle. Yet most of these conversations work out well – surprisingly well from the viewpoint of participants who often begin with negative expectations. I count on the fact that people dislike being entrenched in conflict. They are hungry for healing. When offered an attentive ear and a safe space, most individuals open up. They speak honestly and learn to listen responsively to one another’s point of view. They hear and are surprised by one another’s pain. People feel relief because they feel heard and have gained a new perspective on an old story. The process reduces bitter feelings and helps repair relationships. 

That is my experience most of the time. People are willing to change the lens through which they view their conflict, and to see matters from a new point of view.  

I am often moved by moments of beauty in these conversations, by a sudden breakthrough that enables one person to see the other in a new light. Moments like that explain why I love the work. There are also slower transformations that gradually cause one family member to appreciate the hidden motivations of another, and thereby rebuild empathy and respect.  

When the opposite occurs, it can be disappointing. I’ve never seen a case when dislike or distrust is greater at the end of the process than it was at the beginning. But sometimes one party or both are unwilling to consider the situation in a new light. This might happen because a person doesn’t get that mediation doesn’t work like court. It doesn’t investigate fact scenarios, doesn’t seek “objective truth” or try to judge whose story is most truthful.  Disputes over facts aren’t the focus of our discussions. The goal is to rebuild a respectful relationship, and we do that by focusing on practical, soloution-oriented questions. “What behaviours do we need to agree on for things to be better in the future?” 

The idea of “shifting the lens” to see the conflict in a new way is asking a lot.  Change is always frightening and never easy. It requires significant courage and humility to consider conscious, willing change. In the short run it may appear safer to insist that their own version of truth is the whole truth, to stay secure in the story as they have told it. But those who remain unwilling to look through a new lens, who try to play it safe, are sadly not the most successful at resolving their conflict. 

My heart goes out to those people. I respect their wishes, their timing, their goals. It’s not for me to say if, or how, or when they should change. But I can’t help wishing I had a way to encourage them to consider shifting their approach. I keep looking for ways to help family members view themselves and others through a new lens. 

  ABOUT THE AUTHOR

Mike MacConnell, founder of Reflective Mediation, is an accredited family mediator, conflict coach, educator and author. He is the highest-ranked mediator on Google in the greater Toronto area, with over 180 5-star reviews. To book your free consultation click here.

The Role of the Mediator in Family Disputes

Mediation has recently become a popular way to settle cases of separation and divorce. Unlike a lawyer, who is trained to take the side of one client and give advice, a mediator is asked to be “in the middle” of those in dispute. Mediators facilitate conversations that ensure you negotiate respectfully with one another. You reconcile your differences by constructing an agreement acceptable to both parties, without the mediator taking sides or imposing any binding decisions.

There are some real advantages to this way of resolving disputes:

·       It is less stressful than a court trial

·       It’s less expensive and is over more quickly

·       A judge doesn’t make the final decision. Parties in dispute work it out together

·       The process is confidential, whereas court trials are on the public record

·       Because mediation requires respectful communication and mutual decision-making, it tends to improve communication between divorcing parents. This has future benefits when you are co-parenting.

Family mediation has applications far beyond separation and divorce, such as parent-child or sibling disputes. Only some marriages come to an end, but nearly all families experience conflict and tension at some time or other. Many families could improve relationships and avoid future breakdown if they brought in an impartial third party to facilitate respectful, open conversation.  

Disputes also arise in workplace and commercial settings, but at the end of the day you can go home and get on with your life. Not so with family disputes. You can’t change your blood relations. Family conflict impacts the most important relationships in your life, your core identity and deepest values.

Differences between people are natural and inevitable. The problem isn’t that differences exist. The problem is that we communicate poorly and avoid issues until they grow out of control. People may react with frigid silences, explosions of fury or suppressed emotions that affect their health. Well managed communication can prevent those misunderstandings and heal those wounds.

Facilitated conversations are not easy, nor are they guaranteed, even with the help of a mediator. To provide a safe space, mediators need to screen clients to ensure willingness and ability to negotiate in good faith. By that, I mean a readiness to accept the legitimacy of the other person’s point of view and a willingness to collaborate on reaching terms of agreement that meet the needs of both sides, not just your own.

Private coaching is often offered in advance of joint sessions to cultivate non-adversarial skills. In the heat of conflict, you are likely to discredit the other person. You imagine they are less worthy, that their motives are less noble than your own. When you are hurt, you may want to defeat and punish those who hurt you. These are natural reactions, but Mediation requires a calmer frame of mind. This process asks you to put aside the impulse to win and instead to seek what is fair.

This often amounts to mediating first within yourself. Check in to calm yourself down and challenge the impulse to label and judge the other person. The truth is you probably don’t understand them. This is family. There is love here, or at least there once was. Your goal is to cultivate your relationship so each of you thrives and love returns. Instead of judging and blaming yourself or the other person, mediation asks you to listen deeply to understand their unmet needs and thwarted wishes. Only then will they be open to understanding the needs and wishes that matter to you.

The presence of an impartial third party is helpful to keep the temperature of the room calm, to stay focused on one topic at a time and to slow the back-and-forth flow so that each person feels fully heard before moving to the next speaker.

Solutions are built on a foundation of understanding. Once you have listened deeply to one another, you will not find it difficult to reach agreement on how you each want to behave in the future.

ABOUT THE AUTHOR

Mike MacConnell, founder of Reflective Mediation, is an accredited family mediator, conflict coach, educator and author. He is the highest-ranked mediator on Google in the greater Toronto area, with over 180 5-star reviews. To book your free consultation click here.

Introducing Mike MacConnell and Reflective Mediation

Ten years ago, in 2011, I came to a crossroads in my life when my first marriage and first business came to an end.  Blindsided by those failures, I was forced to re-examine my lifelong aversion to conflict and how it had prevented me from resolving disputes with my business partner and ex-wife.

I didn’t just rethink my approach, I spent three years studying dispute resolution at university and made it the centre of my new career.  Today I’m an Accredited Family and Workplace Mediator and Certified Communication Coach. In 2014 I founded Reflective Mediation, a dispute resolution and training service, and in 2016 published The Yoga of Divorce: A Mindful Route to Resolving Disputes.

It has been satisfying to help others repair relationships and relieve their distress.

When the process is properly managed, a well-trained mediator ensures a safe and confidential space in which to address emotionally charged topics, with or without a support person by your side. Demanding mutual respect between conflicting parties helps them move toward agreement.

A facilitated conversation really does work. It guides parties to slow down, to get curious about the other person and really LISTEN for what matters.  Curiosity motivates listening; listening builds understanding, and understanding generates empathy. I observe this with clients on a regular basis. Even when individuals have radically different values, needs and opinions, the dawning of respect enables them to work together to generate an agreement.

The effort pays off when relationships really matter. I have experienced success with:

·       Families and couples seeking to reconnect and rebuild their relationship;

·       Married and common-law couples seeking an amicable separation agreement that works for them and their children;

·       Solving workplace disputes between colleagues or between employees and management.

 Reflective Mediation provides four main services:

1.     Private coaching. I help an individual to clarify goals, build communication skills and refine strategies to realize those goals;

2.     2-party mediation. I serve two people who voluntarily agree to work with me as an impartial facilitator to negotiate an agreement suitable to them both. I manage the process (quite fiercely when needed) but don’t dictate the outcome. Participants are the experts in their problem and create their own solution.

3.     Multi-party Restorative Justice Circle. Offered to groups of up to 12, the circle process ensures that all parties get heard and the group can come to an agreement that acknowledges multiple viewpoints.

4.     Dispute Resolution Workshops. Customized for groups of up to 20, these highly interactive training sessions build practical skills of conflict management, tailored to the needs of your group.

I’m available week-days 9-5, most evenings and Sunday afternoons. I work primarily via zoom teleconferencing, although as Covid lifts I’m also meeting in person with clients in the Greater Toronto Area. I charge $200 per hour plus HST for each of the above services. That fee is split between clients when more than one participant is involved.

On my website www.ReflectiveMediation.ca you’ll find a virtual scheduling calendar, which allows you to book a free-of-charge initial consultation at a time convenient for you. I encourage you to schedule a free session to share your story and find out whether my service fits your goals.

How to Know if Mediation is Right for Your Divorce: The Goldilocks Solution

COVID-19 restrictions have brought Jill and Ron’s marriage to the brink. They’ve agreed to divorce but not to much else. Ron thinks they should hire lawyers to work it out in court and suck up the costs. Jill doesn’t want to spend all that money and time or hand over decision-making power to a judge. To her it’s a no-brainer to hire a mediator to help work things out between them more amicably, quickly and inexpensively.

Is mediation the right solution? It often is, for a number of reasons:

1.     You meet on your own time, at your own convenience, not when the court dictates. It can take a few weeks or months - not a few years as court often does.

2.     You construct your own agreement including terms that make sense to you. The mediator facilitates the conversation but can’t impose any decision.

3.     Costs are lower for two reasons: first, you split the mediator’s fees, rather than each paying the higher hourly fee of a lawyer; second, it almost always requires fewer hours.

4.     Co-parenting is easier after facilitated problem-solving sessions. There is a chance of improving ongoing communications, which is a big win for your children.

5.     Privacy is a guarantee in mediation, unlike court proceedings which are open to public scrutiny.

Mediation is preferred by more and more couples these days, and is successful 85% of the time. That missing 15% shows that it’s not always the best process for everyone. It is “The Goldilocks Solution” for parties who get along “just right”. Exceptions occur when conflict is too low or too high.

Too Low:

If Ron and Jill can amicably work out an agreement at the kitchen table, why hire a neutral third party? They can save the cash. They will only need lawyers at the end, to provide legal advice and prepare a Separation Agreement.

Too High:

If conflict escalates, Jill and Ron won’t negotiate well. This is a judgement call, unique to each case, but generally mediation is NOT recommended when any of the following questions is answered with “yes”:

·     does a history of abuse in the relationship prevent one party from negotiating on his or her own behalf?

·       does substance abuse or a mental health problem prevent Ron or Jill from rational problem solving?

·       is emotional turmoil at a peak, preventing one or both from listening?

·       is one party unwilling or unable to negotiate in good faith?

These situations give cause to pause, although they don’t necessarily preclude mediation. Sometimes it’s best to delay until parties calm down. Perhaps the couple can wait until medical or therapeutic support has been provided.

Mediators are also trained to offer accommodations such as inviting a lawyer or support person into sessions. Shuttle mediation can also be used to keep parties in separate rooms.

Most separating couples are in the Goldilocks middle range, with conflict neither too high or too low, but just right.

To learn more about Divorce Mediation: ReflectiveMediation.ca

ABOUT THE AUTHOR

Mike MacConnell, founder of Reflective Mediation, is an accredited family mediator, conflict coach, educator and author. He is the highest-ranked mediator on Google in the greater Toronto area, with over 180 5-star reviews. To book your free consultation click here.