Mediation
Things to Consider
 

Michael Scott is a Licensed Marriage and Family Therapist, and a child custody mediator. He has been a therapist since 1982 and maintains a private practice in Santa Cruz, CA. Since 1985, Michael has served as a child custody mediator for The County of Santa Cruz Superior Court. He is an educator offering workshops both nationally and internationally on marriage, divorce, parenting, education, personal and professional development, conflict resolution, and the developmental needs of children.

                                                                333 Church St., Suite B * Santa Cruz, CA 95060 * (831)423-0521


The following information is not intended to take
the place of legal advice, mediation, psychotherapy, or counseling. Its purpose is educational and informational only.
If you need such advice or counseling, please seek an appropriate, qualified professional.
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A DIVORCE RESOLUTION OPTION

When couples separate or divorce, it is not uncommon that parents have different views regarding time-sharing arrangements with the children. When parents work together to find an acceptable and mutually agreed upon parenting plan they not only maintain greater control over the divorce process, which is frequently chaotic, but there are other benefits as well. These other benefits often include saving significant sums of money that would have been spent on attorney fees, an ability to resolve problems in the future without using the legal system, and a greater sense of security and stability for the children. When parents are able to mediate their diferences, a sense of empowerment results. There is more likely to be success in maintaining the agreement because there is ownership in the process of creating a parenting plan. It stands to reason that the court (litigation) process disempowers both the couple and individual. If the mind set is that when a disagreement arises I will take "it" back to court and let someone else make the decision regarding resolution, then clearly imbedded in framework of the divorce is a sense of immaturity and irresponsibility for problem solving. For many, mediation is a more difficult process because both individuals have to work with the partner being divorced. In the long run, however, the knowledge that the couple remains in control of their own destiny outweights the effort required. For more information about divorce and its impact, click on the following link to Divorce: Things to Consider.

An alternative to court litigation is to hire a neutral third party who is qualified to help facilitate a parenting plan satisfactory to both parties. The mediator is often an attorney or mental health professional specifically trained in the area of child custody mediation. Such individuals should have a strong background and expertise in child development issues, family dynamic, knowledge about the impact of divorce on children, an understaning of how various parenting arrangements affect children at different stages of their development, and effective communication skills along with the ability to facilitate the parents' communication skills. Although there are various opinions among professional mediators, it is most effective if everyone agrees from the start that the mediator will not make recommendations to the Court. Rather, the role of the child custody mediator as a professional is to assist the parents by facilitating the negotiation of a parenting plan, which will serve the purpose of primarily meeting the needs, and serving the best interest of the children. A divorce should not undermine the family’s ability to maintain their decision-making capacity. Although the professional mediator may know your child as a result of education and theoretical research, the people who know the child best of all are generally sitting opposite the mediator and therefore it is the parents who should be making decisions about the plan with the assistance of the mediator. Mediators support the concept of a family’s right of self-determination as opposed to the general concept of efficiency so prevelent in the court process. For information about co-parenting, click on the following link to Co-Parenting: Things to Consider.


CHILD CUSTODY MEDIATION

Depending on locale, jurisdiction procedures of mediation vary. Some courts require (mandatory) mediation as an initial step in establishing a parenting plan. If, in such instances mediation is unsuccessful, the court will generally have an evaluative phase in which a recommendation is made to the Court effectively removing the power of the parents' ability to self-determine the plan for parenting their children. As stated earlier, parents can privately negotiate a parenting plan with the assistance of a professional mediator outside of the court process and then stipulate (mutual ageement) the agreement to the court for approval as an order signed by the judge. It is possible that a particular juristiction does not provide a mediation process as part of the legal procedure. In such an instance, the only alternative would be private mediation and a stipulated submission of the agreement.

CONFIDENTIALITY

Whether private or public (Court), ideally, mediation is a confidential process. It is imperative to determine if such is the case prior to beginning mediation. Confidential mediation guarentees parents the right to speek freely, openly, and honestly without fear that what is said in mediation can be used in a future court proceeding. A confidentiality agreement should be signed at the start of the process insuring the safety of the mediaiton process. It is essential that both parents experience the mediator to be neutral. If the situation was such that the mediator was to make a recomendation to the Court the negotiation was not successful, then neutrality would be questioned. Further, individuals in the negotiation might have a hidden agenda in presenting their postion to the professional. That is, if the same professional was going to recommend to the Court, rat her than developing a prarenting plan in the best interest of hte child, one or both parents may present their case in the most favorable light representing their adult interests. With this in mind it stands to reason that if mediation is unsuccessful (privately or publicly) a different professional should be involved in the process of making the recommendation to the Court regarding the parenting plan. It is generaly the case that when a recommendation is made, a Court order is the result. If either party objects to the recommendation a trial or hearing results with the judge making a court order regarding the child custody/parenting plan.

Jurisdictions have various processes for determining child custody. It is critical that the negotiating parties educate themselves about the proceedures in their county. It may be the case, regardless of the legal procedures, that private mediation is the most productive and effective method for resolving your divorce/child custody issues. For this to be the case, both parties have to be willing to enter the private sector process of mediation.

THE ROLE OF THE MEDIATOR

The mediator provides a number of functions. While remaining impartial, the mediator facilitates the negotiation of the parenting plan between the parents. The parenting plan should be based on the best interests of the child rather than what either parent believes " to be fair and deserves to have." Very often a parent states, "It is my right to parent my child...." And then goes on to define what s/he demands as their legal right. It is far more appropriate to view the role of a parent as being a "responsibility and obligation" rather than "having a legal right." It becomes part of the mediator's role to educate both parents about the age appropriate develpmental needs of the child, the impact of divorce on both the child and the adults, and the various options of parenting plans that would be appropriate for the child based on the above factors, to name but a few. Many mediators believe that it is best to deal separately with parenting issues and financial/property issues. Although child custody is intertwined with financial support, it is not uncommon to negotiate these issues independently. Often times an attorney mediator will handle the finances and property component, while a mental health professional facilitates the parenting plan.

Many couples who have decided to divorce, but are still living under the same roof want to have a parenting plan established prior to the actual separation. Although this is viable, frequently the negotiated parenting plan is not based on the reality of living separate lives, but on the expectation of what the couple believes will happen after they separate. The result is often that the agreement has to be redefined in further negotiation after separation because reality supersedes the preseperation expectations. It is often most helpful if the couple still living under the same roof explore the educational aspect with, and get preliminary information from, the mediator. That is; the impact of divorce on both children and adults, the developmental needs of children, and parenting options to be considered. Once the separation occurs, a temporary agreement of perhaps three to six months, without prejudice toward either parent, be established until the situation stabilizes for the new family structure.

MEDIATION AND CHILDREN

Divorce is an adult concept. It is about an adult seeking relief from a situation of which s/he no longer wants to remain involved. The divorce is about adult issues. It is therefore best if the children are not directly involved in the process. It is generally accepted among professional metal health mediators that the only reason to interview a child of divorcing parents would serve the purpose of obtaining information that would assist the parents in developing a parenting plan best suited for the child. It is not uncommon that a child will tell each parent what that particular parent wishes to hear. Children do not want to hurt either parent so they will frequently offer contradictory information to each parent. Unfortunately this frequently results in a higher level of mistrust between the parents. Both parents often believe the other to be “brainwashing” the child. By interviewing the child, the neutral mediator can assist the parents in understanding what the child is actually meaning when telling each parent what s/he wants to hear. It is important to recognize that a child is not seeking to divorce their parent but is trapped in the process as a by-product of an adult decision. If each parent can place the child's needs above their own, then both will be open to recognizing and negotiating a parenting plan that truly is in the best interest of the child. For inofrmation about co-parenting click on the following link: Co-Parenting: Things to Consider.

THINGS TO CONSIDER IN MEDIATION

There are obviously many things to consider when entering mediation to develop a parenting plan. Parents often have different parenting styles and philosophy. It is not uncommon that parents have different values, interests, level of tolerance, and availability of time to meet the needs of the child. Depending on the level of cooperation between parents will impact the type of parenting plan established. The higher the level of stress between the parents, the more difficult it is to negotiate a parenting plan that both parents can maintain without putting stress on the child.

Generally it is best to establish an initial parenting plan that is reflective of the status quo as defined by the circumstance of the marriage. Such a base agreement can expand and evolve into a vastly different parenting arraignment over time. What is critical in establishing an initial parenting plan is to observe reality from the eyes of the child and not the wishes of the adult. Such a plan will most likely provide for the security and stability of the child during a typically unsettling period of change. Taking into consideration the developmental level of the child’s age and conscious awareness, will help to determine an effective parenting plan. With so many things to address one can begin to understand the importance of locating a trained mental health professional mediator who has the knowledge and expertise to assisting the adults with the negotiation process, and also has a strong background in child development theory.


WHAT TO INCLUDE IN THE PARENTING PLAN

The parenting plan should contain a detailed schedule of how the children will share time with each parent (physical custody). Included should be a regular (academic year) schedule, holiday schedule, vacation scudule, and summer schedule. Not every single schedule identified need be defined if the regular school schedule will be maintained during the holiday, vacation, or summer time. The parenting plan should also include agreements related to the co-parenting conditions established. It should also include a designation of legal custody. Generally the more specifed the detail the better. Such understandings as specifying dates and times of transfer reduce the chance of misunderstanding and conflict.

THE LANGUAGE OF THE AGREEMENT

Language that emphasizes the continuing responsibilities of the parents and the rights and needs of the children is preferable to traditional legal language that emphasizes the "legal rights of the parents." Using language that reflects the value of both parents in the children's lives tends to diminish conflict, and it results in parents feeling less threatened and vulnerable regarding their rights and role in the children's lives.

RESPONSIBILITIES FOR DECISION MAKING

Legal custody means the responsibilities and rights of the parents to make major decisions regarding the children, such as decisions about healthcare, education, and religious upbringing. Of course, the parent with whom the child is staying at any given time always makes minor decisions about a child.

When one parent has Sole legal custody the major decisions regarding the child's health, education, and welfare are determined by that parent. When parents share Joint legal custody, that responsibility is mutually determined through negotiation. In high conflict cases, the responsibilities can be delineated in the agreement. If parents are unable to reach agreement between themselves or through negotiation in mediation, the only alternative is to return to the court process.

REGULAR (ACADEMIC YEAR) SCHEDULE

A mediation agreement, needs to define a routine, regular (academic year) schedule. While flexibility and accommodation between the parents is to be encouraged, an arrangement that relies exclusively upon the good-will and cooperation of the parents, such as "Sarah will share time with his parents by mutual agreement of the parents," typically does not provide the necessary structure from which workable flexibility can follow, and it often causes problems. Being specific about days and times of transfer can be very useful in warding off disagreements and disputes later. An example would be: "The children will be with Father/Mother every weekend from 6:00 P.M., Friday and will continue until 6:00 P.M. Sunday immediately following." And then, "All other times not specified in the holiday schedule the children will be with Father/Mother during the regular (academic year) schedule."

HOLIDAY SCHEDULE

It is advisable to specify a separate schedule of major holidays and special occasions. Any holiday that is not specified will be considered as part of the regular schedule. Holidays are significant a very special time. They help develop a sense of ritual and a measure for passage of time. Many children would prefer to spend each holiday with both parents. However, that is just not viable in the majority of cases when there is a divorce. Some holidays to consider are those with religious affiliation, Spring Break, Winter Break, and Thanksgiving Day.

SUMMER SCHEDULE

With the exception of those parents who work within the school system, most parents must continue to work and are no more available to be with the children than during the regular school year. Mutually planning these periods in advance and putting the plans in writing can make divorced parents' lives much easier. Very often, parents will leave the Summer Schedule as part of the Regular (Academic Year) Schedule. If there is to be a vacation period schedule for travel, then that particular time frame should be specifically identified.

OTHER USEFUL AGREEMENTS TO INCLUDE

There are many responsibilities of parenting that are taken for granted when both parents live under the same roof. However, when parents are divorced and need to co-parent, such responsibilities must be made explicit, shared, and followed through. This requires an explicit understanding regarding which parent will be responsible for which tasks at what times. Among these issues are transportation of the child to and from activities and between the parents, phone contact, after-school care and extra-curricular activities, as well as a host of others.

Other issues that may need to be addressed include the use of alcohol while being the parent responsible for the child, the use of illegal substances, disparaging remarks about the other parent in the children's presence, and information about phone numbers and addresses of both parents to each other, to the healthcare provides, school administration, and child care providers.


CONCLUSIONS

Mediated agreements are more appreciated by the children, because the children know that their parents personally took the time and energy and cooperated with each other to design a parenting plan that really fits each child’s needs. Mediation is about negotiation and compromise regarding the difficult factors that parents must take into consideration for reaching what is best for the children. It is always considered to be in the best interests of the children to minimize conflict between the parents. This is best accomplished by business-like negotiations and reaching agreements between the parents, rather than by protracted legal and Court battles which so often generate more conflict than they resolve. To "win" the battle, but "lose" the child will not serve the child's best interest. It is important to remember that if mediation is unsuccessful, parents do not lose access to the Court.

 

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Last updated 02/04/17