Abstract

Family mediation is promoted as a less adversarial and more cost-effective dispute resolution process that is ‘particularly apposite for the resolution of family disputes’. Yet there is an inherent complication in disputes involving children. Conventional mediation practices rest on assumptions of party autonomy, mediator neutrality, and voluntariness of agreement, which obscure the asymmetries of power that underlie many family disputes. We argue that current mediation practices in England and Wales do not properly recognise the universal and particular vulnerabilities of adult participants, nor account for the interconnected vulnerabilities of parents and children. We submit that the law ‘is right to regard children as vulnerable, where it is at fault is in failing to recognise the vulnerability of adults,' and argue that to protect children from the corrosive effects of family conflict and abuse, we must recognise and respond to the vulnerability of adult participants responsible for making decisions on their behalf. Mediation policy and practices must acknowledge and respond to both the innate vulnerabilities of children and the situational, inherent and pathogenic vulnerabilities of their parents.

Our central argument is that parents are vulnerable in a variety of ways linked to relationship breakdown and this is important because they may have reduced capacity to recognise their and their children’s vulnerability, to provide emotional support for children and limit their exposure to parental conflict or to make decisions which prioritise children’s needs. Current recognition that children are particularly vulnerable to the impact of relationship breakdown should be extended to understanding that parents are also vulnerable, and children's wellbeing depends on promoting parental resilience. A primary contribution of this chapter is the introduction of the term ‘enhanced vulnerability’ to reflect the layered vulnerability faced by children involved in mediated family-based disputes; subject not only to their own asymmetries of vulnerability by comparison with their parents, but also their parents’ own asymmetries of vulnerability by comparison with each other. We argue that children's vulnerabilities are amplified because their parents, as the decision-making conduit, are themselves vulnerable.

Traditional models of family mediation, which equate party autonomy with mediator non interference, do not adequately reflect the lived realities of participants who are navigating the emotionally, financially and physically draining aftermath of family breakdown. Drawing on Martha Fineman’s vulnerability theory, we reconceptualise family mediation as an institutional practice with affirmative responsibilities to recognise and respond to universal human vulnerability. We submit that responsiveness to vulnerability can complement, rather than undermine, party autonomy and outline a vulnerability-responsive framework including comprehensive screening and intervention techniques challenging policymakers and practitioners to move beyond procedural neutrality toward actively fostering resilience.

By viewing mediation through the lens of vulnerability theory, we adopt a novel approach and offer a theoretical reconsideration of established mediation practices, filling a significant gap in existing literature. This chapter makes a key theoretical contribution by showing vulnerability in dependent relationships is not merely additive but multiplicative. The dependent's vulnerability is enhanced by dependence on a compromised decision-maker, which is a genuinely original conceptual contribution extending vulnerability theory to a variety of different contexts. Our recommendations make an original contribution to the academic field, highly relevant to developing family mediation policy in England and Wales and pertinent to any jurisdiction where family mediation is required or encouraged as alternative to court proceedings. Given mediation's increasing significance in jurisdictions such as Australia, Italy and New Zealand, our theoretical framework and recommendations are potentially far-reaching.
The chapter is structured as follows: Part 1 explores vulnerability theory and explains why applying it is key to reframing current practices. Part 2 sets out current family mediation policy in England and Wales. Part 3 discusses party autonomy and mediator neutrality principles undergirding the process and explains why these are problematic in family mediation. Part 4 sets out our research-informed recommendations for creating a vulnerability-responsive framework. In part 5, we provide some concluding thoughts.