American Bar Assn You Decide

Updated: Jun 24

What’s the Point of Mediation?

You Decide

By: Christine A. Coates


Mediation is a powerful process that allows people to take control of decision-making. It has proven useful in many situations both before marriage and after, when a marriage or parenting relationship is dissolving, or when parents have become involved in the child-protection system.

Courts frequently order couples into mediation, but many others choose this nonadversarial, problem-solving approach on their own. Mediated agreements can form the basis of settlement agreements, and, when accepted by the court, become court orders. For public policy reasons, a court is not bound to accept mediated agreements on certain issues, such as parenting rights and responsibilities and child support. However, a skilled and knowledgeable mediator can guide couples' and parents' decision-making in many types of situations.


Parenting decisions

Decisions about children are among the most important ones that parents make. The adjustment of children to their parents' separation and divorce and their future psychological well-being are affected by the level of conflict between parents. Concerned parents will want to isolate children from adult anger and sadness and will attempt to cooperate in parenting decisions. Parents will always be parents. even when they no longer are married or living together. Although divorcing parents may not end up as best friends, it is possible to work together in a businesslike way for the best interests of their children.


Better communication

Mediation encourages parents to sit down together to discuss coparenting. Parents often learn new skills and ways of communicating, which reduce future conflict. Many parents find that the presence of a mediator helps them focus on the needs of their children, rather than on the other parent's shortcomings. The mediator also can suggest methods of communication, such as e-mail or a parenting notebook, when face-to-face or telephone contact becomes difficult.

Mediation is commonly used to create parenting plans in separation and divorce. Two major types of decisions must be made: (1) those involving children's general welfare and (2) when and where children will live.

Decision-making is referred to as "sole or joint legal custody" or, in states that have abolished custody language, "parental responsibility." In mediation, parents can decide how these decisions will be made and can talk in advance about major issues, such as where their children will live, about health care, religious training, education, extracurricular activities, etc.

Parents who share similar values and ideas about child-rearing may decide on joint decision-making or custody, or they may agree chat one parent is more qualified or able to make some or all decisions. Mediation allows patents to preview their ability to make joint decisions, even when they have strong differences of opinion.

A mediator will encourage parents to discuss what information should be shared and how best to do it: by telephone, in person, e-mail, fax, or a parenting notebook. The mediator assists parents in talking about the children's needs and can refer them to child-development experts or books if more help is needed. A mediator also can suggest various options that have worked for other families and will raise red flags on issues or decisions that are likely to cause future conflict.

It is important for parents to include in their parenting plan a means of resolving disputes. Often parents who have successfully mediated an agreement will agree to mediate any future impasse. Judges are the first to remind parents that thoughtful, well-reasoned decisions about their children are best made by parents, rather than judges.

Among the most important decisions are when children will live (their residence) and the amount of time to be spent at each parent's home (variously called "visitation," "parenting time,” or “access,” depending on state law). Mediators do not assess or evaluate parents’ situations or make recommendations regarding living arrangements, but they will help parents share their ideas, concerns, and needs.

No one residential schedule works for all children. In mediation, parents are able to create a schedule that works for their children in both of their homes. Each child's developmental and other needs can be considered in a collaborative atmosphere. Parents also need to discuss how to handle holidays, vacations, birthdays, days off from school, sick days, etc.

Even if parents anticipate no difficulty in working out these arrangements, a specific plan serves as a fall-back guide if communication later breaks down. Parents also must decide how to transport children for parenting time. The mediator will lead a discussion about how much flexibility can be allowed in the schedule and what to do when one parent is unable to accommodate the schedule.

In mediation, parents often create a parenting-time calendar for several months or a year. Both parents will have the same calendar and can make special arrangements in advance. Transition times are designed to work with children's activities, their bedtimes and mealtimes, and with parents' work schedules.


Parents need to discuss how to handle holidays, vacations, birthdays, and days off from school


Parents should discuss what might happen in the future if one parent wants to relocate with the children. Having a mediator guide these discussions will help parents anticipate areas of disagreement and avoid future conflict. Individualized parenting plans provide a roadmap, constructed before the divorce, for the years ahead.


Temporary arrangements

Mediation can be helpful in determining separation arrangements and temporary residential and parenting plans for children. It is best to enter into mediation about children early in the separation or divorce before litigation makes collaboration difficult. Often parents will try different arrangements during the divorce to find which one works best for the family.


Revising parenting plans

Because children's needs evolve as they grow and their parents' schedules and circumstances change, many parents meet after the divorce to revise their parenting plans. When parents are unable to do this on their own, they often mediate the changes, sometimes with the same mediator who worked on the original plan. Using a neutral person helps parents focus on the goals of the session, rather than on what hasn't worked well.


Parenting problems

Sometimes coparenting after divorce is a rocky road, strewn with anger, arguments, and frustration. Examples of difficulties include: a parent's being chronically late for exchanges; children's problems in moving between parents' homes, a new spouse's interference with a parenting plan, or conflicts in decision-making. Mediation can help reestablish communication between parents or establish new communication guidelines or clarify the original agreement. It can be a useful first step before pursuing other legal action.


Child support

All states have child support guidelines that include the parents' incomes and other information in calculating monthly child support. Some state guidelines are more straightforward and "user-friendly" than others. A mediator can help parents gather their financial information and apply it to guideline formulas. The mediator does not decide what income or other figures to use when the information is not straightforward. However, with the mediator's help, parents can use a computer program to see how child support changes when different figures are used.

Mediating changes in child support can be helpful when parents agree or when the law requires a periodic exchange of financial information to update child support. Parents should check with the court to determine if mediators or other court staff can help update child support orders.


REMEMBER

Your Keys to Success

  • To be successful in mediation, a couple does not have to get along.

  • Mediation is not a substitute for legal advice.

  • Mediators do not make decisions, but facilitate a couple's own decision-making.

  • Children adjust to divorce more healthily when their parents can successfully resolve conflicts.

  • Mediation is useful for all divorce issues, including creating parenting plans and making financial decisions.

  • Mediation can help engaged couples create o prenuptial agreement.

  • Mediation in child-protection proceedings empowers parents and provides more comprehensive services for children.

-C.A.C