Child Custody and Mediation

Attorney and Mediator Mike McCord practices in the Cleveland area. He can be reached at 216.283.4385 and mikemcmed@aol.com.

The Center for Principled Family Advocacy, www.famad.com

Custody disputes are the toughest cases for the Domestic Relations, Juvenile and Family Courts which hear disputes between parents. For this reason, mediation is fast becoming the preferred method of resolving parenting issues.

Courts throughout the country are using it instead of litigating parenting issues. More and more, dissolution and divorce decrees contain clauses which require mediation before filing any change in parenting motions with a court.

The following three articles introduce mediation and its process. The first is an introduction to mediation. The second summarizes the mediation process and the beginning stages of mediation, in which the mediator gathers information and helps the parties’ identify their and their children’s needs. The third explains the final stages of mediation; in which the parties discuss different options and ultimately choose the mediation method that best meets the needs of all involved.

Part I: Introduction to Mediation

Parenting issues often engender emotions and conflict. Whether it is the initial dissolution of the marriage or a post decree situation ten years later, child custody and visitation issues often need the help of a professional mediator.

Many members of the Center for Principled Family Advocacy are certified mediators and many members have helped clients work successfully to resolve family conflicts using certified mediators. Certification requires a minimum of 52 hours of family and child mediation training beyond professional degrees in counseling, social work, psychology, ministry or law.

Certified mediation skills can be utilized when negotiating an initial dissolution or a contentious post decree custody matter. An approved mediation agreement can be incorporated into a dissolution agreement or be the basis of a post decree court ruling.

A mediator experienced in child custody and visitation can help parents identify where their needs and interests coincide. Instead of focusing on blame and the past or letting parents bargain from their fixed positions, the mediator will focus on the mutual needs of the whole family. The mediator is a facilitator who helps parents help themselves.

But how can a mediator help parents who do not communicate or are entrenched in their own positions? In order to help such people, the mediator must set the tone for and direct the mediation process. Mediation is simply an assisted negotiation, but a skilled mediator can help people change their communication patterns.

Instead of placing blame on the other spouse, through mediation a parent is able to see their own responsibility in the conflict and plan for positive change in the future.

In the two following articles on custody mediation, the reader will be introduced to the stages of the mediation process and how the mediator gets the parties to bargain from their needs and interests and not their divisive fixed positions.

Part II: The Mediation Process and Discovering Needs and Interests

In this second of three articles, the early stages of the mediation process are explained. In the initial stages information is gathered and needs and interests of the parents and their children are discussed.

The Mediation Process

Mediation is defined as a process in which the participants, with the assistance of a neutral third party, systematically identify disputed issues. This enables them to develop options, consider alternatives and reach a consensual agreement that will accommodate their needs.

The stages of mediation are:

In mediation, the process and ground rules are critical. From the start, the mediator must control the communication between the parents.

The ground rules are:

		In the first three stages, each parent should address their comments only to the mediator. The other parent should not interrupt the parent speaking.
		The parents should speak only for themselves.
		As the mediation reaches the fourth and fifth stages and the parents are developing options and negotiating, each parent can start communicating directly with one another.

Why have initial communications through the mediator? The parties’ communication may have broken down or may be causing problems. The mediator will be able to fairly balance the discussion and get information from both parties. The second ground rule, speaking only for oneself, is important because often one person will say what they believe the other person thinks or feels. Statements like that are destructive and will only derail the mediation process.

Parents’ Needs and Children’s Needs

In the information gathering stage, the mediator will equalize the communication. This also involves getting information and tailoring the process to the people’s needs. The mediator will need to know basic facts about the people’s lives like where they live, when they work and what time commitments they have.

Also, the mediator needs to understand the parents’ individual goals and hopes for the future. Questions like: Do they plan to go back to school? Are they contemplating a job change or a move to a new community?

The mediator also needs to get information regarding the children. What are their activities and school schedules? What are the personalities and special needs of each child? During this stage of the mediation the mediator will get knowledge and will control the process, so that neither party gets the upper hand. The questioning focuses on the present and future, not the past.

Emphasis on the future is a fundamental principle of mediation. Further, the discussion of the children helps parents focus on children’s needs and reinforces the joint responsibilities of parenthood.

Focus on the parents’ and children’s needs is the underlying principle of mediation. The parents won’t be asked to state a position. The mediator will seek background information and understanding of the current situation. If the parties are in mediation, then there is some reason the current situation is not be meeting all the needs of the parents and the children.

Gathering information in a neutral manner allows the mediator to get a sense of each parent’s position without putting it in those terms. One parent may relate that the current parenting schedule is not enough and that more contact is needed. However, even if such a declaration is made, the mediator will seek to determine where the parents’ and children’s needs and interests lie so that the parents can, with the help of the mediator, create options and alternatives that fit this specific family best.

Part III: The Mediation Process and Discovering Needs and Interests

In this third and final article, the discussion of options and negotiation phases of mediation are discussed.

Reaching an Agreement

Up to this point, the mediator has been gathering information. All the communication has been between the mediator and the parents, rather than between the parents themselves. Now the challenge for the mediator is to change the pattern of the communication flow.

Hopefully, the parents have listened to what each has said to the mediator. When marriages break down, the ability to communicate is among the first casualties. By controlling the communication process, the mediator has forced the parents to listen to one another.

In helping the parents develop options, the role of the mediator becomes increasingly directive, with the mediator acting as a resource tool for the parents. Creating options is the most active stage for the mediator in the process.

The mediator’s role is vastly different from the non-directive role of the counselor and the highly authoritarian role of an attorney, acting as an advocate. A mediator will never tell the parents what they should do, but the mediator will be knowledgeable in both Ohio Domestic Relations Law and child development. The mediator’s knowledge in these areas is a strong tool for parents to use when developing options.

The mediator, during the development of options, must keep the parents focused on their and their children’s interests, not their positions. Instead of focusing on a parent’s position of a fifty-fifty split in parenting time, the mediator must focus on how increased time with each parent will fit the busy schedules of all involved. Will there be overnights during the school week or additional time on weekends? Things like the children’s ages and activities and the parents’ work schedules that were discussed before become a key to evaluating parenting plan options.

Parents must take a realistic look at how different options will work for them and their children. It is possible that there will be different ways for a family to fairly share time with each other. An option that most appropriately meets everyone’s needs can be chosen.

Conclusion

If done with the cooperation of the participants, the mediation process is likely to produce a positive outcome. The effective mediator gathers information from both parents in a neutral manner. This shapes a positive setting for mediation. The parents and the mediator explore different options for mutual gain, but the mediator will not impose an agreement on parents.
A positive outcome can set the stage for future cooperation between the parties, with or without the aid of a mediator.