Tuesday, September 1, 2009

What is mediation?
Mediation is an opportunity for parents to get together in a less adversarial environment than the courtroom battleground. The goals of mediation are to; 1) Help parents make a parenting plan that's in the best interest of the children; 2) Help parents make a parenting plan that lets the children spend time with both parents; and 3) Help the parents settle their past issues and learn ways to deal with anger or resentment.

In mediation a mediator meets with both parents and helps them try to agree on a plan that is best for their child. Mediation can be a way to make decisions about the children without going to court and also how to resolve disputes in the future. The parents can make their own agreement for how they will take care of the children. The legal word for this agreement is "stipulation." It is also called a "parenting plan" or a "parenting agreement." The mediator helps parents look at different options and decide when the child will be with each parent, how future decisions about the child will be made and how best to protect the child's safety and welfare.

A case for mediation
I have a client to is having one problem after another with child custody issues. It started with the mother having the oldest child put into counseling without notifying the father. He found out about it through an insurance statement. In his attempt to then comply with the Indiana Child Custody Guidelines[1], which mandate that he is to participate in ongoing therapies, he tried to get the records from the counseling center but they refused. He eventually had to file suit to compel production of the records.

When he contacted the mother about making arrangements to exchange the children the mother told him he would not get to see them for that month. She then changed that to he could come to her town to see them, making the entire 1000 mile round-trip on his own. He then obtained a court order compelling her to comply with the decree and meet at the halfway point as scheduled. She arrived nearly two hours late.

Next she started cutting off the phone conversation with his children and as one of the children said they were punished for talking on the phone with their father.

Finally, she has enrolled the second child in counseling and obtained her own medical insurance so that it wouldn't appear on the father's records. Fortunately for the father, the center sent the statement to the him.

As a result of the lawsuit the counseling center did turn over some of the records. There the father discovered that the mother had misstated to him the purposes for counseling. The records revealed that she alleged the children were having behavioural issues she could not handle, not that they blamed themselves for the divorce as she had told the father was the reason.

The mother had also told the counseling center that there was no history of psychological or drug abuse issues within the family. However, she had extensive therapy and had a long history of drug abuse including alcohol, Marijuana, speed and Cocaine for 10 years. She then abused prescription narcotics after that.

The father has offered to move the exchange times to later in the day, the mother hasn't responded. The father has also tried to make other arrangements that are more beneficial to the children but has been met with resistance of defiance each time. As the mother has sole physical and legal custody of the children she has no incentive to comply with the court's orders except the possibility of being held in contempt.

The nearest hearing schedule for the parties is still a month away. This will result in the mother coming back to Indiana, taking two days off work and paying her lawyer to prepare and be there. The father will also have to take a day off work. This will happen for each of the issues unless they a merged into one super-hearing. This will cost both parents money as well as keep the mother from being able to care for the children. Which in this case may not be a bad thing. To alleviate these burdens the father is now seeking mediation to modify the custody arrangement and get her to understand the need to comply with the court's orders.

Who is a mediator?
A mediator is a neutral third party that attempts to get the parents to resolve their conflicts outside of the courtroom setting. Mediators may be lawyers, clergy, a neighbor or someone who has a master's degree in counseling, social work or another related field. In Indiana there is no state requirements for the practice of mediation. Experience working in mental health and knowing how the family court system functions is also a plus. Although mediators may be experienced in counseling, mediation is not counseling. The mediator's job is to listen to both parents from a neutral perspective.

When is it time to mediate?
The day that you know that you will eventually be headed to court to resolve a divorce or child custody issue is the time to start thinking about mediation. Mediation has many advantages for divorcing couples or those involved in a child custody dispute. Mediation is quicker, cost less and usually provides for a better outcome for all parties involved.

The above case involves two parents who are at polar opposites in their approach to child rearing. Another factor that doesn't help is that the mother has an attorney who is notorious for excessive litigation to boost his take in legal fees. This is why the father has requested mandatory mediation. This wasn't an option early on. The mother absconded with the children as part of a custody plan. The father had no idea it was coming. He came home from work to find the house cleaned out and the rest of the family gone. After six weeks without any contact her lawyer contacted him. After months a separation they went to court for a temporary custody order.

Ultimately the judge ruled that the mother and children had an established residence in another state, that the children had adapted to that community and it was in their best interest to not disturb their living arrangement. Interestingly the judge saw no problem with the mother uprooting the children from the community where they had lived nearly all their lives, were near family and had established social connections.

Clearly this is a case that needs immediate intervention. The mother has alleged to the children's counselor that she and the children had to flee from the father for their safety. Yet, this was never brought up in court and the police department has no record of calls to the house. The mother refers to them as "my children" when talking to the father. The mother refuses to discipline the children and instead uses constant punishment and has enrolled them in counseling.

The father is bitter about the entire ordeal although I have never seen him display that around the children. He is lax in discipline trying to give them a break from the constant authoritarian rule of the mother. The father feels that it is his responsibility to constantly provide attention to the children. The mother feels that the children, aged 4 and 7 years, should tend to themselves. So much so that the aunt has said she is done being the constant babysitter and that the mother "needs to start paying attention to them."

What to bring to mediation?
The first thing to bring is a positive attitude about yourself, the other parent and the needs of the children. Parents who are open and listen to the mediator and their ex-spouse are the ones who are able to reach a settlement and develop a mutually satisfactory parenting plan. Do not defeat the opportunity by coming in with the idea that you will get someone to side with you against the other parent. Even in the preceding case the mother is passionate about wanting what is best for her children. This should be acknowledged. Unfortunately she just can't see what that is best for them. Cocaine use, drug abuse while pregnant and thinking those are non-issues is concerning. She just doesn't understand the father's fears about that. That should also be acknowledged.

In my mediations I like to have provided to me in advance, a copy of the Court's relevant orders, from each parent a list of issues to be discussed, a parenting plan proposal and a list of positive and negative interactions with the child about that parent's self and the other parent.

Here are some tips for mediation sessions:
Focus on the child's needs.
Think of custody as a separate issue relating only to what is best for the child. Acknowledge the child's special needs according to the child's age, temperament, and development.
Acknowledge the other parent's strengths and bring up only valid concerns about the other parent's ability to care for the child. (Recall that you once saw this person as very special for a reason)
Acknowledge that a child needs time with both parents, in a safe environment, developed by a parenting plan.

Finally, parents need to bring a sense of balance and humor. At times during mediation, things get tense. Parents need to maintain a perspective that balances their desires, the other parent's desires, and their child's needs. While this is the goal, it may not be easy. If things get tense, parents need to remember that they are there for the children, not themselves. Parents do not have to like their ex-spouse to make an agreement on behalf of their children, they just have to love the children more than they hate the ex-spouse. Take a brief time-out from the mediation session if necessary. I allow parties to take whatever breaks they need. I charge a flat fee so there is no pressure to hurry. Some parents need several mediation sessions to reach a satisfactory settlement. I go until I feel conciliation is hopeless.

What if parents can't agree?
A mediator cannot force the parents to come to an agreement. The mediator attempts to provide an opportunity for and assist the parents in coming to an understanding. This can be difficult and is not always possible. There is a reason that you are not together, correct? What mediation should accomplish, at a minimum, is helping the parents to understand that the issue is about the children. Mediation should also prepare the parents for going to court if needed.
If there is no agreement then the mediator may have to make recommendations to the judge. In some counties, if you and the other parent can't agree on a parenting plan through mediation, the mediator is asked to give the court a written recommendation. It will contain the mediator's opinion about what parenting arrangement will be in your child's best interest. For the court to accept the testimony or recommendation of a mediator that mediator must be a "Qualified Mediator". The Indiana Supreme Court Commission for Continuing Legal Education maintains the Registry of Qualified Mediators for court practice.

What should I put in my Parenting Plan?
Your parenting plan (also called a "custody and visitation agreement") is a legal document. You need to make sure your plan is in the best interest of your child. Make sure it meets your child's basic needs for love, protection, guidance, a healthy diet, and medical care. In building your plan consider your child's age, personality, experiences, and ability. Every child is different. Adjust your plan to your child, NOT your child to your plan. Your mediator can help you to understand all of this.

Here are a few more points you should consider or include-
Regular and consistent times with each parents that includes day-to-day care, overnights, activities, schoolwork, vacations, and holidays. It is necessary that your children have two parents providing care. It does not need to be 50/50 time. More or less time does not mean one parent is better or more deserving. Think about who performed particular activities during the marriage. Try to mimic that while still involving both parents. This will give your child a sense of security and a reliable routine. Discipline is also an important issue. DO NOT let it become that mom or dad is cooler because the child can do as he or she wishes. This is not good for the child and will ultimately hurt the parent who think he or she gains favour by being lenient.

On to the legal side. Make sure you give your plan enough detail so it's easy to understand and enforce. What about holidays, summer vacations, and special days? How will the child get from one parent to the other? Who will pay the costs? "Legal custody," means making decisions about the children such as schools, daycare, religion, medical and dental care, Emergency care and for older children, jobs and driving.

Mediation should be considered in all dissolution and custody proceedings. Even if an agreement is not reached it will help each side to understand what their differences are and should also provide a framework by which to base their future actions in the best interest of their children and ultimately, in themselves.
Mediation is not magical. It takes a willingness and an open mind. Sometimes that willingness comes upon an order from a judge saying if you don't mediate in good faith you pay the lawyer fees for both sides at trial.

[1] IPTG Sec 1(D)(4) Commentary "Each parent has the responsibility to become informed and participate in ongoing therapies and treatments prescribed for a child and to ensure that medications are administered as prescribed.  An evaluation or treatment for a child includes medical, dental, educational, and mental health services."

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©2008, 2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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