Enhanced Vulnerability: Protecting Children from Family Conflict in the Shadow of the Law

Family mediation is widely promoted as a less adversarial and more cost-effective means of resolving family disputes. Yet conventional mediation practice rests on assumptions of party autonomy, mediator neutrality, and voluntary agreement that obscure the power asymmetries underlying many family conflicts. This chapter argues that current mediation practices in England and Wales fail to recognise adequately the universal and particular vulnerabilities of adult participants, nor the interconnected vulnerabilities of parents and children.

The central argument is that parental vulnerability, arising from relationship breakdown in its emotional, financial, and physical dimensions, diminishes capacity to prioritise children's needs, provide emotional support, and limit children's exposure to conflict. Recognising children's vulnerability must therefore be extended to recognising parental vulnerability, since children's wellbeing depends substantially on promoting parental resilience.

A primary theoretical contribution is the concept of enhanced vulnerability, which captures the layered vulnerability of children in mediated family disputes. Children are subject not only to their own asymmetries of vulnerability relative to their parents, but also to their parents' asymmetries of vulnerability relative to each other. Vulnerability in dependent relationships is thus not merely additive but multiplicative: a dependent's vulnerability is amplified by dependence on a compromised decision-maker.

Drawing on Martha Fineman's vulnerability theory, the chapter reconceptualises family mediation as an institutional practice carrying affirmative responsibilities to recognise and respond to human vulnerability. A vulnerability-responsive framework is proposed, encompassing comprehensive screening and intervention techniques, challenging policymakers and practitioners to move beyond procedural neutrality toward actively fostering resilience. The framework has relevance beyond England and Wales, with implications for jurisdictions including Australia, Italy, and New Zealand.