Friday, October 11, 2013

Mediation and Custody

Contested custody cases often have a negative impact on the children who are at the heart of the matter.  While parents may have good intentions, the children often get caught in the middle as the parents attempt to work out custody and visitation schedules.

Mediation is often an effective form of resolving custody disputes.  The typical goals in mediation include creating a settlement that is in the best interest of the children, creating a parenting plan that allows both parties significant time with the children, and working toward a more cost-effective resolution—both money-wise and emotionally.
There are three types of mediation often utilized in custody matters:  facilitative, evaluative, and transformative.

a. Facilitative mediation.  In facilitative mediation, the mediator does not typically give his own opinions as to potential outcomes if the parties litigate.  The mediator facilitates the process through asking questions, pointing out common interests and points of view, and assisting the parties in analyzing options.  The parties are in control of reaching a resolution.  Typically, the mediator meets for joint sessions with both parties and without attorneys as they want the parties to form their own agreements without the influence of others, including the attorneys. 

b.  Evaluative mediation.  The evaluative mediation process utilizes a mediator who is usually also experienced with the litigation model of resolving custody cases.  The evaluative mediator, who is often a retired judge, helps the parties resolve the custody case by pointing out weaknesses in each party’s case and making predictions as to what a judge may or may not do.  Evaluative mediation is based on the standard set by the law.    Most often, the parties and their attorneys meet together with the mediator.
c.  Transformative mediation.  Transformative mediation is the newest of the three mediation forms.  The concept of transformative mediation is based on empowering each of the parties in the decision making process and teaching each party to recognize the needs, interests, values, and points of view of the other party.  The potential for each party to “transform” in his or her relationship with the other party provides an opportunity for the parties to not only resolve the current custody dispute but to hopefully learn a process of dispute resolution they can effect moving forward.  Transformative mediators meet with the parties together.  Transformative mediation is also the form used in the collaborative law process. 

There are pros and cons to each type of mediation.  Feel free to contact one of our attorneys at RRBMDK if you would like additional information on utilizing mediation in custody or divorce cases.