By Jordi Casajoana
Family mediation has become an essential tool for managing conflicts within family relationships, especially when children are involved. In situations of high marital conflict, The mediation intervention acquires an added complexity: it is not only about facilitating agreements, but also about to protect the emotional stability of the child,to guarantee their right to be heard and prevent them from getting caught up in dynamics of divided loyalties.
Several authors have emphasized that mediation with minors requires a specific approach, based on the ethics of care, active listening, and a deep understanding of family dynamics (Folger & Bush, 2014; Haynes, 2017). Likewise, international organizations such as the Council of Europe (Recommendation CM/Rec(2010)15) insist that the child's participation must be voluntary, informed and adapted to his or her level of maturity.
2. The minor as a subject of law: normative and conceptual framework
The recognition of the minor as subject of law It constitutes one of the pillars of mediation intervention. Convention on the Rights of the Child (1989) Article 12 establishes the right of the minor to express his opinion in all matters that affect him, and that this opinion be taken into account according to his age and maturity.
In the Spanish context, the Organic Law 1/1996 on the Legal Protection of Minors and the Law 26/2015 They reinforce this principle, emphasizing the need to guarantee the child's participation in proceedings that concern them. This is further supported by the most recent reform of Organic Law 8/2021, on comprehensive protection of children and adolescents against violence (LOPIVI).
However, in contexts of high marital conflict, this right can be distorted by explicit or implicit pressures, contradictory narratives, parental expectations, or dynamics of emotional manipulation. Therefore, the mediator must place the child at the center of the process, but without turning it into an instrument of proof nor in an arbitrator of the conflict.
3. The role of the mediator in high-conflict marital relationships
The specialized literature agrees that mediation in high conflict situations requires a more structured, technical role that is aware of the risks (Irving & Benjamin, 2002; Kelly, 2004).
The main keys to this, what I call the A, B, C and D that a mediator should know when working within the child and adolescent protection system:
A. Create a safe space
The mediator must guarantee an environment where the parents can communicate without aggression and where the child —if participating— can express themselves without fear or pressure.
B. Regulate communication
In intense conflicts, communication is often dominated by recriminations and rigid narratives. The mediator acts as emotional climate regulator,helping to transform the conversation into a functional dialogue.
C. Maintain neutrality
Neutrality in high-conflict situations is a active neutrality: It implies intervening to balance, not to artificially equalize positions.
D. Protect the minor
Child protection is cross-cutting: from preparing for the interview to managing the information provided.
4. Specific skills of the mediator
My experience over the years in the world of mediation and within the child protection system leads me to speak of 4 types of specific competence of the mediator, such as:
A. Emotional Competencies
- Emotional regulation
- Empathy without over-involvement
- Capacity to sustain conflict
B. Technical skills
- Adapting language to the child's developmental level
- Preparing for individual interviews
- Reading the family context
- Identifying risk signs
C. Ethical Competencies
- Confidentiality adapted to the legal framework
- No instrumentalization of the minor
- Respect for the child's pace
- Clarity in the limits of the role
D. Legal competences
Understanding the regulatory framework without turning mediation into a judicialized space.
5. The participation of the minor: criteria and limits
The child's participation must be:
- voluntary,
- informed,
- adapted to their age,
- and focused on listening, not deciding.
The literature warns of the risk of turning a child into an “informant” or “spokesperson” for one of the parents (Saposnek, 1998). The goal is to understand how he is experiencing the situation, not obtaining information to resolve the conflict.
6. Good practices in high-conflict situations
My experience of more than 20 years in the child and adolescent protection system allows me to explain those that I consider the most important, such as:
A. Prepare each session in advance
Advance planning allows for anticipating dynamics, adjusting the framework, and foreseeing potential escalations. In high-conflict situations, this includes:
- Review criminal or administrative records if available.
- Identify sensitive topics that may cause blockages.
- Design emotional regulation strategies (pauses, reformulation, protective frames).
- Decide whether it is advisable to conduct individual sessions beforehand.
B. Establish clear rules of communication
The rules are not merely formal: they are tools for containment. In high-conflict situations, they must be explicit, firm, and reiterated in every session.
- No interruptions.
- No personal attacks.
- Use of respectful language.
- Focus on the present and on the needs of the child.
C. Validate emotions without reinforcing destructive narratives
Emotional validation doesn't mean agreeing. It's about acknowledging the subjective impact without fueling polarization.
- “I understand that you feel frustrated by what happened.”
- “I see that this makes you very insecure as a mother.”
But avoiding phrases that reinforce the victim or culprit narrative:
- No: “It’s normal to be angry, she’s always excluded you.”
- Yes: “It’s understandable that this affects you; we will work to ensure that you both feel included.”
D. Working on shared parental responsibility
In high-conflict situations, parents tend to compete for legitimacy. Mediation should:
- Strengthen the shared role as caregivers.
- Depersonalize the conflict (“it’s not between you, it’s about how to take better care”).
- Introduce the concept of "parental team" even if there is no emotional relationship.
E. Protect the child from any pressure
This includes:
- Do not share the content of the sessions with the minor.
- Do not use their testimony as an argument.
- Don't put him in loyalty dilemmas like "who do you want to live with?".
- Do not allow parents to use him as a messenger or confidant.
F. Introduce pauses when tension increases
The pause is not an interruption, but a regulatory tool:
- It allows you to breathe, reflect, and avoid escalation.
- It can be physical (leaving the room) or symbolic (changing the subject, reformulating).
- It should be provided for as a legitimate recourse, not as a sanction.
G. Reinforce that the minor is not responsible for the conflict or the agreement
This message should be repeated, explicit, and adapted to their age:
- “You don’t have to decide anything.”
- “Your parents are working hard to make sure you’re okay.”
- “Your opinion is important, but you don’t have to choose.”
7. Common mistakes in mediation with minors in high-conflict situations:
Finally, I would also like to detail the most frequent errors that a professional can make when carrying out this type of mediation, such as:
A. Turn the minor into an informant
One of the most serious mistakes is using the child as a source of information to validate or refute the parents' version of events. This puts the child in a position of... emotional risk, It exposes him to divided loyalties and can generate guilt or anxiety.
Incorrect example: “"Is it true that your mother yells at you when you're with her?"”
Ethical alternative: “How do you feel when you’re at your mother’s house?”
In conclusion: The goal is not to obtain data, but to understand how the child experiences the situation.
B. Allow parents to use mediation to strengthen their position
In highly conflictive situations, adults may exploit the mediation process to reinforce their narrative, gain an advantage, or pressure the other party. If the mediator does not regulate this dynamic, the mediation becomes an extension of the conflict.
Incorrect example: Allow one of the parents to bring documents, recordings
Ethical alternative: Refocus the dialogue on the needs of the child and on parental co-responsibility.
In conclusion:: Mediation is not a trial or a space for evidence.
C. Confusing listening with interrogation
Listening to a child does not mean interrogating them. Questions should be open-ended, respectful, and adapted to their developmental level. An interrogation can generate anxiety, withdrawal, or conditioned responses.
Incorrect example: “What did your father say to you when he took you to school?”
Ethical alternative: “How do you feel when your father accompanies you to school?”
In conclusion: Listening should be empathetic, not inquisitive.
D. Promising results that do not depend on the mediator
In highly conflictive contexts, participants may have unrealistic expectations. Promising agreements, changes, or judicial decisions generates frustration and distrust.
Incorrect example: “If you cooperate, the judge will surely grant you joint custody.”
Ethical alternative: “Mediation can help you build agreements, but court decisions depend on other factors.”
In conclusion: Professional criteria: Clarity in the limits of the role and in the scope of the process.
E. Forcing the participation of the minor
The child's participation must be voluntary, informed, and appropriate. Forcing them to attend, speak, or make decisions can lead to rejection, withdrawal, or emotional overload.
Incorrect example: “Your son has to come to the next session, it’s mandatory.”
Ethical alternative: “We will explain the process to you and offer you the opportunity to participate if you feel comfortable.”
In conclusion;: The child has the right to be heard, not the obligation to participate.
F. Minimize signs of emotional risk
In high-conflict situations, indicators of emotional distress may appear in the child: anxiety, psychosomatic symptoms, confused speech, avoidance, and excessive responsibility. Ignoring these signs by focusing on reaching an agreement is professional negligence.
Incorrect example: “He’s nervous, but that’s normal in these cases.”
Ethical alternative: “We detected signs of discomfort that require specialized attention. We will refer you if necessary.”
In conclusion: The protection of the child takes precedence over the objective of the agreement.
8. Conclusion
Mediation in cases involving minors in highly conflictive marital situations requires a particularly delicate combination of sensitivity, technical skill, and professional ethics. It is not enough to simply master communication or methodological tools: the mediator must be able to read the emotional climate, anticipating risks, modulating tensions, and maintaining a safe space where adult voices can reorganize without invading or instrumentalizing the child's experience.
In these scenarios, the mediator acts as a conflict regulator, not as a judge nor as a therapist. Their role is to contain without repressing, to accompany without directing, and to facilitate without replacing the parents' responsibility. This implies a complex balance: listening without judging, intervening without imposing, and protecting the child without overexposing them to inappropriate dynamics. Neutrality, far from being passivity, becomes a active neutrality, aimed at balancing positions, deactivating destructive narratives and recentering the process on the well-being of the child.
Ultimately, mediating with minors is not simply about facilitating parental agreements. It is to support families in a time of vulnerability,Mediation helps them rebuild a framework for minimal cooperation and ensures that the child can navigate the conflict without being burdened with responsibilities beyond their emotional development. It offers a space where the child's voice can be heard with respect and care, without turning them into an arbitrator or messenger, and where adults can reconnect with their parental role beyond the litigation.
The quality of mediation intervention is not measured solely by the signing of an agreement, but by the ability to generate safer, more conscious and more respectful processes with the rights of the child. In contexts of high conflict, this mission becomes even more crucial: mediation becomes a bridge between conflict and protection, between breakdown and responsibility, between pain and the possibility of building a more stable future for the children.
Bibliography:
Folger, J., & Bush, R.A.B. (2014). The Promise of Mediation.Jossey-Bass.
Haynes, J. (2017). Family mediation: principles and practice.Paidós.
Irving, H., & Benjamin, M. (2002). Family Mediation: Contemporary Issues.Sage.
Kelly, J. (2004). Family mediation research: Is there empirical support for the field? Conflict Resolution Quarterly, 22(1).
Saposnek, D. (1998). Mediation with Children.Jossey-Bass.
Council of Europe (2010). Recommendation CM/Rec(2010)15.
United Nations (1989). Convention on the Rights of the Child.
Casajoana J. (2017) “The Mediation Professional”. Diario la Ley., Wolters Kluwer Publishing House
