Mediator Neutrality In Family Disputes: Can The Mediator Remain Neutral When The Well- Being Of The Child Is At Stake?
- IJLLR Journal
- 12 minutes ago
- 2 min read
Saanvi Singh, School of Law, CHRIST (Deemed to be University), Central Campus, Bengaluru
ABSTRACT
Family mediation is a well facilitated, confidential process in which separated or separating family members attempt to resolve disputes by agreement rather than adjudication. It is attractive in family disputes because it is consensual, flexible and private, and because it may preserve an ongoing parental relationship that litigation can further damage. Mediation can also enable arrangements to be adapted to the practical and emotional circumstances of a particular family rather than imposed through a standard judicial order. Its central normative commitments, however, include both party self-determination and mediator neutrality.
The presence of children makes those commitments more complex. Parenting disputes may formally be between two adults, but their consequences extend directly to children who may not participate in the process. The mediator must therefore negotiate a tension between two principles, that is, neutrality and impartiality towards the parents, on one hand, and protection of the child’s welfare or best interests, on the other. The problem can be stated through a simple hypothetical question, both parents agree to a settlement concerning residence, contact, education or relocation. The arrangement is convenient and acceptable to them. Is it nevertheless a successful settlement if it is substantially contrary to the child’s welfare?
This article mainly questions whether a mediator remain neutral while ensuring that the child’s interests are adequately protected. It argues that the answer is yes, but only if neutrality is understood with precision. Neutrality should mean neutrality between the parents, not indifference towards the child’s welfare. The mediator must not become the child’s advocate, legal representative or substitute judge. Yet complete passivity is equally objectionable because silence may permit coercion, misinformation or an arrangement that disregards serious welfare concerns. The appropriate model is therefore child-sensitive neutrality: an impartial process between the parents in which the mediator actively ensures that the child’s interests are considered, without imposing a substantive outcome.
