A colleague recently asked me whether I was familiar with any research on the risks associated with mediating with a heavily pregnant woman. The woman in question was in conflict with her ex-partner, the father of her unborn child, and my colleague wanted to know whether there were particular considerations they should be thinking about.
What struck me most was what came next: the mediator mentioned that their previous workplace had a policy not to mediate with women in their third trimester.
I found this troubling. And the more I thought about it, the more questions it raised about how we approach vulnerability, autonomy, and risk in mediation practice.
What Problem Are We Actually Trying to Solve?
When an organisation creates a blanket policy excluding pregnant women from mediation after a certain point, what is the underlying concern? This matters, because different concerns would lead to very different responses.
Is the worry that the stress of mediation might harm the woman? That it might harm the unborn child? That the woman might go into labour during a session? That pregnancy affects her capacity to make sound decisions? Or is it simply an administrative convenience, avoiding the unpredictability of late pregnancy?
Each of these concerns, if unpacked, reveals different assumptions about pregnant women, about mediation, and about the role mediators should play in making decisions for parties.
The Capacity Question
Let me be direct: pregnancy does not affect a woman’s capacity to make decisions. If our concern about mediating with pregnant women relates to their ability to think clearly, negotiate effectively, or understand the implications of agreements, we are on extremely shaky ground.
Pregnant women run companies, argue cases in court, perform surgery, and make countless consequential decisions every day. The suggestion that pregnancy somehow impairs decision-making capacity is not only unsupported by evidence but carries uncomfortable echoes of historical attitudes that treated pregnancy as a kind of temporary incapacity.
If a particular woman, pregnant or otherwise, lacks capacity to participate meaningfully in mediation, that should be assessed individually based on observable factors, not assumed based on her pregnancy status.
The Stress and Harm Question
Perhaps the concern is more specific: not about capacity, but about whether the stress of mediation might cause harm to the pregnant woman or her baby.
There is certainly research on prenatal stress. Studies have shown associations between maternal stress, anxiety, and depression during pregnancy and various outcomes for children, including emotional and behavioural difficulties. The mechanisms are complex, involving cortisol, the hypothalamic-pituitary-adrenal axis, and placental function.
However, this research raises more questions than it answers in the mediation context.
First, researchers distinguish between different types and intensities of stress. Chronic, severe stress appears more problematic than acute, moderate stress. Some research even suggests that mild to moderate stress may be beneficial for foetal development. The stress of a mediation session, while certainly real, is not equivalent to living in a war zone or experiencing ongoing family violence.
Second, and crucially, we need to ask: compared to what? If a pregnant woman is in conflict with her ex-partner about arrangements for their child, that conflict exists whether or not she participates in mediation. Indeed, the stress of unresolved conflict, of uncertainty, of preparing for litigation, or of simply having no process to address her concerns might well exceed the stress of participating in a structured conversation with a skilled mediator.
Third, if stress during pregnancy is our concern, why single out mediation? Pregnant women routinely engage in activities that are stressful: job interviews, examinations, difficult family conversations, moving house. We do not require medical clearance for these. Why would mediation be different?
The Medical Approval Question
My colleague and I discussed whether a pregnant woman should need medical approval before participating in mediation. The more I considered this, the more uncomfortable I became.
What exactly would we be asking a doctor to certify? That the woman is healthy enough to sit in a room and have a conversation? That her pregnancy is progressing normally? That she will not go into labour in the next few hours?
Doctors are not experts in mediation. They cannot assess whether a particular dispute is likely to be emotionally intense, how skilled the mediator is at managing difficult conversations, or how the woman herself experiences conflict. They can confirm that a pregnancy is progressing normally, but they cannot predict how any individual woman will respond to a challenging discussion.
More fundamentally, requiring medical approval before a woman can participate in a dispute resolution process positions her as someone who cannot make decisions about her own participation. It treats pregnancy as a medical condition that requires gatekeeping, rather than as a normal human experience. It is, frankly, patronising.
If we would not require medical approval for a pregnant woman to attend a job interview, negotiate a contract, or have a difficult conversation with a family member, why would we require it for mediation?
The “Going Into Labour” Concern
Perhaps the most practical concern is simply that a woman in late pregnancy might go into labour during a mediation session. This would certainly be disruptive and would require ending the session.
But is this a reason to exclude women from mediation entirely, or simply a reason to be prepared? Labour, particularly for first-time mothers, typically begins gradually. A woman who begins experiencing contractions can usually recognise what is happening and indicate that she needs to stop.
We would not exclude someone from mediation because they might have a medical emergency. We would simply respond appropriately if one occurred. Why should the possibility of labour be treated differently?
Moreover, the alternative is not risk-free. Delaying mediation until after the birth means delaying resolution of issues that may be pressing. It means the child is born into an unresolved conflict. It may mean the woman is trying to mediate while caring for a newborn, sleep-deprived and dealing with the physical recovery from childbirth. Is that preferable?
Timing: Before or After Birth?
This raises a broader question about timing that deserves more attention than it typically receives. Is it better to mediate while a woman is pregnant, or to wait until after the baby arrives?
Mediating before birth allows parties to reach agreements before the child arrives, potentially reducing stress and conflict during the newborn period. The woman can participate when she is not simultaneously caring for an infant. Issues can be addressed before they become entangled with the realities of new parenthood.
Mediating after birth means the child is a reality, not an abstraction. Parties can discuss actual arrangements rather than hypothetical ones. The mother’s circumstances, including her physical recovery and the practicalities of caring for the specific child, are known rather than predicted.
There are arguments for both approaches, and the best timing will depend on the specific circumstances. What seems problematic is making this decision for the woman by excluding her from participation during pregnancy.
The Mediator’s Role
All of this brings us back to fundamental questions about the mediator’s role. How much should we be protecting parties from processes they have chosen to engage in? When does appropriate concern for wellbeing become inappropriate paternalism?
Mediators regularly work with parties who are experiencing significant stress: people going through relationship breakdown, workplace conflict, family disputes over estates. We do not typically exclude people from mediation because they are going through difficult times. Instead, we adapt our practice: we take breaks, we check in on how people are doing, we adjust our pace, we offer to continue on another day if needed.
Could we not extend the same approach to pregnant women? Could we not simply have a conversation at the start about how she is feeling, whether there are any adjustments that would help, and what she would like to do if she becomes tired or unwell during the session?
This would treat pregnant women as capable adults who can make decisions about their own participation, while acknowledging that their circumstances may require some flexibility.
What I Would Like to See
I am not aware of any research that specifically examines the safety of mediation for pregnant women. This seems like a gap worth filling. In the meantime, I would like to see our profession engage more thoughtfully with these questions rather than defaulting to blanket policies that may do more harm than good.
I would like to see us distinguish between genuine concerns about wellbeing and unexamined assumptions about pregnancy and capacity.
I would like to see us trust women to make decisions about their own participation, while offering the flexibility and support that any party in challenging circumstances might need.
And I would like to see us ask ourselves honestly: whose interests are really being served when we exclude pregnant women from mediation? The woman’s? The baby’s? Or perhaps our own discomfort with uncertainty and difference?
These are questions, not answers. I am genuinely interested in what others in the mediation community think about this. Have you mediated with pregnant parties? Have you encountered policies like the one my colleague described? What considerations have guided your practice?
This is a conversation we should be having.