Mediation is one of a number of methods of “alternative dispute resolution” (ADR). It’s used to attempt to settle legal disputes without the need for lengthy and costly court battles.
Mediation has become a mainstay in the world of divorce. Spouses meet with a trained mediator, usually in an informal setting (such as the mediator’s office). Think of the mediator as a guide, navigating the couple through the maze of their contested marital issues.
Unlike arbitration (another ADR method), the mediator doesn’t make decisions on the disputed matters. Rather, mediators use their knowledge and skill to try to facilitate a compromise that both spouses can live with. In divorce cases, a successful mediation will normally lead to the preparation of a written settlement agreement.
Child custody isn’t the all-or-nothing proposition it’s often thought to be—one parent gets the kids, the other doesn’t, end of story. It’s well established that children fare better when both parents are an integral part of their life, and that’s the goal the courts strive for in custody cases.
At its core, child custody is comprised of two basic concepts: legal custody and physical custody. Legal custody relates to who will make the decisions regarding the important matters in a child’s life, such as education, religious upbringing, and nonemergency medical treatment. With the exception of a parent being unqualified for some reason, courts prefer to have parents share legal custody.
Physical custody concerns where a child will primarily reside. To a large degree, this depends on where each parent lives, with the aim being to provide for an arrangement that best suits the child’s needs.
In all custody matters, doing what’s in the child’s best interest is the court’s guiding principle.
Although many issues in a divorce can be contentious, child custody and parenting time are often the most emotionally-charged and difficult for families to navigate. Child custody mediation is intended to help tone down the hostility, for the sake of the parents and their children alike.
It’s also typically more cost effective than going to court, because you’re paying a mediator to try and help you come to an agreement, rather than asking your attorneys to battle it out in court, while charging you an hourly fee to do so. And, you have a say in when the sessions will take place. That’s a luxury which is practically nonexistent in the court system.
Divorce laws in most (if not all) states mandate custody mediation once the divorce process has begun. So even when couples haven't opted to pursue mediation before filing for divorce, it’s virtually certain they’ll be ordered to participate at some point. In light of this, it’s important to learn how to approach mediation.
First and foremost, remember that custody in general, and mediation in particular, isn’t primarily about the parents. It’s about your children. You have to make a commitment to do whatever is best for them. So resolve to keep an open mind. The mediator may have suggestions for custody and parenting time that you haven’t thought of.
Write a proposal of what you believe would be a fair custody and parenting time arrangement, taking into consideration each parent’s existing circumstances. It helps to include a child custody mediation check list, so you don’t lose track of issues that are important to you. Remember to include things such as:
There are software programs that help parents coordinate all aspects of custody and parenting time, including communications. A quick internet search should give you a good idea of what’s available.
As referenced above, the focal point of custody mediation is your children. Remember that this isn’t a general divorce mediation, so don’t muddy the waters by bringing up marital issues that aren’t specifically related to custody and parenting time. Reciting a laundry list of things you don’t like about the other parent is a prime example of what not to say in child custody mediation.
When you reference your children, talk about “our” kids, not “my” kids. It’s more inclusive and less confrontational. And try to couch your remarks in terms of what you as parents can jointly do to make the situation as positive and painless for your children as possible.
Expect that—despite everyone’s best efforts—there will be times when your discussion can become heated. Don’t use that as an excuse to unload on the other parent, which will only negate progress that’s been made up to that point. Mediators are very adept at calming the waters, but if you feel your emotions are getting away from you, ask to take a short break.
If you’re a victim of domestic violence, request separate sessions for you and the other parent. It might end up costing more, but at least it allows you to avail yourself of the mediation process while, hopefully, leveling the playing field by offsetting the imbalance of power that frequently exists in abusive relationships. A successful outcome is worth the additional cost, which is still likely to be considerably less than heading to court. Separate sessions are also best if the degree of hostility between you and the other parent is so high that you can’t be in the same room.
And remember, in the event mediation doesn’t work, you can still turn to the courts. Even in that case, your mediation sessions will probably have highlighted the issues you can’t agree on, which will show you what you need to focus on going forward.
Mediation has become such a popular method of settling legal issues, there’s no shortage of qualified mediators. Your state court’s administration office may have a list of approved mediators. There are also mediation organizations, many of which hire retired judges. An internet search for your state should provide a myriad child custody mediators for you to choose from.
When researching, be sure to pay particular attention to each mediator’s qualifications. You want one who’s taken mediation courses specifically geared to divorce cases, including custody and parenting time. Also, be aware that a child custody mediator doesn’t necessarily have to be a lawyer--many trained child custody mediators are licensed psychologists, MFT's or social workers who have experience in child custody issues within the state where they work.
Of course, first-hand knowledge and word of mouth referrals are always really helpful. Recommendations from friends or family members who’ve been through custody mediation are often the best referrals you can find.