Supporting Parent-Clients in Mediation of Child Custody Disputes

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Maurice A. Deane School of Law at Hofstra UniversityScholarly Commons at Hofstra Law

Hofstra Law Faculty Scholarship

7-1999

Supporting Parent-Clients in Mediation of ChildCustody DisputesAndrew SchepardMaurice A. Deane School of Law at Hofstra University

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THE PRACTICALLiTIGATORJULY 1999

Supporting Parent-Clients

in Mediation ofChild Custody Disputes

Andrew Schepard

Parents facing custody disputes want to find alternatives that are good for the children.Mediation is one of the best.

LAWYERS WHO SUPPORT their divorceclients-and thus theft client's children-through the mediation process act in the highesttraditions of our profession. In effect, theselawyers help shield children from the combatzone of parental warfare. It is entirely possiblefor lawyers to use mediation in a way that si-multaneously protects a client's legal positionand looks to the long-term best interests of theirchildren. This article summarizes the problemsfaced by children of divorce and the pervasive

growth of child custody mediation. It then pre-sents a hypothetical lawyer-client/parent dia-logue on the subject of child custody mediation,illustrating how a lawyer might wish to presentthe option of child custody mediation to a client.

THE IMPORTANCE OF CHILD CUSTODYMEDIATION * More than 1.5 million childrenannually experience their parents' divorce, anumber more than double that of the past gen-eration. Hundreds of thousands of parents make

Andrew Schepard is Professor of Law at Hofstra University School of Law. He is Reporter for the American BarAssociation Family Law Section's Task Force on Standards of Practice for Lawyers Who Practice Divorce andFamily Mediation, and co-founder of PEACE (Parent Education and Custody Effectiveness), a court-affiliated in-terdisciplinary education program for divorcing parents. An earlier version of this article was published in theauthors' bimonthly Law and Children column in the New York Law Journal.

8 The Practical Litigator July 1999

the difficult decision to divorce, weighing thepain that they will cause their children againstthe important personal reasons driving themapart. High-conflict parents are the exceptionrather than the rule in the population of parentswho divorce or separate. Usually, parents adjustto the emotions and conflicts created by divorceafter several years and develop a tolerable rela-tionship with a former spouse. Many divorcingand separating parents have heard of mediationfrom media reports and friends, and ask theirlawyers about it; many others have to partici-pate in mediation whether they want to or not,because of legal mandates.

There is a major reason for the pervasivenessof mediation of child custody disputes. Theoverwhelming empirical evidence demon-strates that the intensity of parental conflict isthe key to a child's adjustment to the transitionsof divorce. The problems of children are partic-ularly acute if their parents are in prolongedhigh conflict. Simply put, highly conflicted di-vorcing and separating parents put their chil-dren at much greater risk because of their con-duct. In most cases, children are better served ifparents divorce in a restrained, civilized man-ner that ends the marriage with some dignitywhile giving children the freedom to havemeaningful post-divorce relationships withboth parents.

This is where mediation fits into the picture,as it promotes conflict-reduction and stable par-ent-child relationships better than adversarialcourtroom combat. Most parents say they wantto behave responsibly toward their children;mediation gives them a dispute resolution pro-cess that can help them achieve that goal. Theimaginary dialogue that follows shows how alawyer can reinforce the better instincts of their

divorcing clients through support of the media-tion process.

MEDIATING A CHILD CUSTODY DIS-PUTE: QUESTIONS AND ANSWERS *Let's take a hypothetical divorcing couple,Bertrand and Giselle Warner. Giselle andBertrand are in dispute about custody and vis-itation arrangements for their 10-year-olddaughter, Christina. Bertrand recently askedGiselle whether she would agree to mediationof their child-related disputes. Here are someof Giselle's questions to her lawyer, and the an-swers the lawyer who wants to support themediation process might provide.

Q: "What Is Mediation?"

A: "A mediator is a trained, neutral third partywhose aim is to help you and Bertrand manageyour negotiation process toward a voluntaryagreement. The mediator will help the two ofyou identify the issues to resolve and structurethe process for resolving them. The mediator istrained to facilitate communication, promoteunderstanding, focus you and Bertrand on yourand Christina's interests, and seek creative solu-tions if you are deadlocked. Mediation is not anadversarial process. You do not 'win' or 'lose' inmediation-you try to reach acceptable (notperfect) agreements. Unlike arbitrators orjudges, mediators do not make decisions foryou after presentation of evidence. They try tofacilitate an agreement between you."

Q: "Is Mediation LikelyTo Benefit Christina and Me?"

A: "The sooner you and Bertrand reduce yourconflict and stabilize your parenting relation-ship, the more likely Christina will feel support-

Custody Mediation 9

ed by both of you and the more likely you bothare to be effective parents. Mediation promotesconflict resolution and should help you andBertrand improve your communication aboutChristina. Mediation will probably help if theconditions are right. By that I mean you andBertrand have to be competent to participate inthe process, you both must participate in it ingood faith, and your lawyers-and the otherswhose opinions you value-must support whatyou are doing. Your overall goal for mediationshould be to develop a post-divorce parentingplan that provides Christina with the resourcesand support of both her parents. Prolonged con-flict between you and Bertrand could hurt heremotionally, interfere with her education, andjeopardize her economic security. This kind ofconflict will make it almost impossible for eitherof you to parent effectively."

Q: "Will Mediation Help To Makethe Divorce Easier-or Shorter?"

A: "Mediation can help you achieve a more sta-ble parenting relationship and better communi-cation. Studies report that parents who opt formediation reach resolution of their disputesmore quickly than litigation parents. They takeless than half the time to produce a parentingplan, and spend less money in doing it. [See JoanB. Kelly, A Decade of Divorce Mediation Research:Some Answers and Questions, 34 Fain. & Concil.Cts. Rev. 373 (1996) (short summary of researchresults with citations).] Even parents whose me-diation fails to produce an agreement are morelikely to settle before trial than parents who gostraight to litigation. The studies also report thatmediated agreements have other good results.It's more likely that the children will have con-tact with both parents following divorce, and

that the parents will comply with the agreement.

When parents mediate, they tend to produceagreements that are more specific and detailedthan those negotiated by attorneys alone."

Q: "What Course Do I Take if I DecideAgainst Mediation?

A: "Litigation--or negotiation before or afterlitigation begins-is our other alternative.Cases can be settled after litigation begins. It ispossible that Bertrand's lawyer and I can nego-tiate a settlement without extended litigation oreven before mediation. I can consult with theother lawyer if you'd like to explore settlementpossibilities."

Q: "So Which Is Better-Mediation or Litigation?"

A: "Litigation has its benefits. You may feel vin-dicated if you defeat Bertrand in court and liti-gation will certainly result in a clarification ofyour legal rights in a formal court order. A courtorder may change the balance of power in yournegotiations with Bertrand. If, for example, youwin a temporary order that you are Christina'ssole custodian pending trial, Bertrand will belimited to visitation rights and the court will beunlikely to change the legal rights in the tempo-rary custody order without important new in-formation. You will thus have a leg up in nego-tiations with Bertrand. Additionally, court or-ders may be the only way to control irresponsi-ble or immoral behavior by Bertrand, such asfailure to pay child support or threats of vio-lence. Of course, he may use litigation for thatpurpose, too. Finally, litigation may be the onlyoption if your case raises an important legalissue that the courts have not yet resolved or if

you have widely different versions of key factu-al events."

Q: "It Sounds Like Litigation Might BeBetter. Why Should I Opt for Mediation?"

A: "Because of Christina. Litigation aboutChristina can have very serious negative conse-quences for her. Once custody litigation starts, itis often difficult to stop it; it becomes a process ofmutual assured destruction, and escalates out ofcontrol. During litigation, you and Bertrand willeach portray the other in the worst possible lightand force your friends, family, and perhapsChristina to choose sides. Insults exchanged incourt papers or hearings as the litigation processheats up are not easily forgotten, and make set-tlement negotiations much more difficult."

Q: "How Nasty Do You Think LitigationMight Get?"

A: "Parents often feel that after the litigationprocess starts, it quickly caroms out of control.Decisions are made for them-by lawyers andjudges and custody evaluators-rather than bythem. [See Parenting Our Children: In the BestInterests of the Nation, Report of the U.S. Com-mission on Child and Family Welfare 38-39 (Sept.1996) (reporting survey results where 50-70 percent of parents characterized the legal system tobe 'impersonal, intimidating and intrusive').] Ihave heard parents describe custody litigationas a whirlpool sucking them into an abyssagainst their will. Moreover, the results of cus-tody litigation are unpredictable-so much ofthe ultimate decision is in the discretion ofwhatever judge is assigned to your case and thecustody evaluator's recommendation. Finally,even if you achieve a litigation 'victory' you will

not eliminate the need for you and Bertrand tohave a relationship about Christina after youleave the courtroom. You will both be her par-ents forever."

Q: "If I Do Choose To Mediate,Do I Have To Deal with Bert Face-to-Face?"

A: "Yes. Mediation requires that you speak foryourself and respond to Bertrand's proposals inthe presence of the mediator, rather than mydoing the talking for you. In thinking about me-diation, you have to think about your abilityand willingness to engage Bertrand in suchface-to-face dialogue. If you are uncomfortablenegotiating directly with Bertrand, mediationmay not be for you. You should remember,however, that no matter what process you useto settle your disputes about Christina withBertrand, he will be involved in Christina's lifeafter the dispute is settled but I will be out of thepicture. I will not be able to speak to him for youforever. It may make sense for you to mediateyour disputes about Christina with him now tobegin to set a pattern for your communicationsafter divorce while a third party is present tohelp shape those patterns."

Q: "Don't Women Get TakenAdvantage of in Mediation?"

A: "Some have suggested that mediation is notin the best interests of women because theyhave fewer resources and are more likely tomake compromises for the sake of their childrenthan men, and that they are thus easy targets forunscrupulous manipulation. [See PenelopeEileen Bryant, Reclaiming Professionalism: TheLawyer's Role in Divorce Mediation, 28 Fain. L. Q.177 (1994).] 1 am skeptical of such broad gender-

Custody Mediation 11

based generalizations. In my view the balanceof bargaining power between spouses is highlyindividual and unique. I can report that there isno empirical evidence to support the argumentthat mediation tends to force women to giveaway custody benefits or that men engage instrategic bargaining during mediation thatforces women to trade financial for custody'rights.' Indeed, in most studies, men andwomen express approximately equal satisfac-tion with mediation as a dispute resolutionprocess. Furthermore, women report that medi-ation is helpful to them in 'standing up' to theirspouses, and rated themselves more capableand knowledgeable as a result of participationin mediation. [See Kelly, supra, at 377-78 (de-scribing numerous studies).]

"So far, I see no indication that you are inca-pable of mediating your disputes with Bertrand.A history of drug or alcohol abuse for either ofyou would worry me. So would a history of do-mestic violence, which would lead me to havegreat concern for your safety and for that ofChristina. [See id. at 380-81 (brief summary of re-search results concerning mediation and domes-tic violence calling for dialogue and research); seealso Alison E. Gerencser, Family Mediation:Screening for Domestic Abuse, 23 Fla. St. U. L. Rev.43 (1995).] In any event, as we will discuss, sinceI will be working with you throughout the me-diation process and monitoring its progresscarefully, the risk of an improvident agreementbecause of a disparity of bargaining power be-tween you and Bertrand is reduced.

"Ultimately, your decision to try mediationshould be based on shared values between youand Bertrand about what you want forChristina. You are a loving and responsible par-ent and what happens to Christina is obviously

very important to you. I hope Bertrand agreeswith these sentiments and that you value hisrole as Christina's father, despite your maritaldifferences. If you do, a serious attempt at me-diation can benefit all of you."

Q: "Is the Mediation Confidential?"

A: "It is very important that you and Bertrandfeel free to speak candidly during mediationwithout anything said being used in later courtproceedings against either of you. Some statesguarantee the confidentiality of mediation bystatute, while other states do not. Standards ofpractice for mediators, however, generally re-quire mediators to preserve the confidentialityof mediation proceedings except if disclosure isrequired by law as when child abuse is re-vealed during mediation proceedings. [See Pro-posed Standards of Practice for Lawyers WhoConduct Divorce and Family Mediation, StandardVII (ABA Family Law Section Task Force, July,1997).] They also generally require a mediatorto be presented with a court order (which, inturn, requires notice to the participants before itis issued) before he or she breaks the confiden-tiality of mediation proceedings. We will thushave an opportunity to contest any proposal tobreach confidentiality before it occurs. We willalso insist on a confidentiality agreement withBertrand and the mediator before entering intomediation.

"Since we are in a state that does not providestatutory assurance of the confidentiality of me-diation, I cannot give you an absolute guaranteethat what transpires during mediation willnever be disclosed in court. My experience is,however, that mediators take their obligationsof confidentiality seriously and courts do notbreak the confidentiality of the mediationprocess lightly I think overall that the assur-

ances of confidentiality, while not absolute, arestrong enough to proceed with mediation."

Q: "How Do We Select a Mediator?"

A: "We are not in a state that mandates media-tion of child-related disputes. If we were, thecourt system would assign us to a mediatorwhose qualifications the court (or statute)would establish. Our mediation is voluntary.We have to look to the private mediation mar-ket and try to identify someone well qualified toundertake the mediation upon whom you andBertrand agree.

"We have a wide variety of candidates for themediator. Again, unlike elsewhere [see Fla. Stat.Ann. §44.106 (1998) (requiring the SupremeCourt to establish qualifications for mediatorsin court connected programs)], in our state 'me-diator' is not a licensed profession; anyone canhang out a shingle and call him or herself one.The absence of professional licensing compli-cates our search for a mediator."

Q: "Well, What Kind of CredentialsWill the Mediator Have?"

A: "Most mediators are, however, licensed inother professions-law, mental health, or ac-counting, for example. I am generally morecomfortable with mediators who are licensedprofessionals. Licensure in a profession pro-vides some assurance of accountability throughstate regulatory procedures and knowledge inat least an aspect of the problems that you andBertrand will be discussing during mediation.The lack of standardized credentialing for me-diators, however, also means we will have tomake a choice about the kind of professionalbackground we want in our mediator Alawyer-mediator, for example, should be famil-

iar with relevant legal doctrines concerningchild custody and be able to draft an agreement.A therapist-mediator should be especiallyknowledgeable about the family and emotionaldynamics involved in your disputes and pro-posed parenting plans. In child custody mat-ters, I have had good experience with a co-me-diation lawyer-therapist team that brings abroad range of skills to the process."

Q: "How Expensive Is It To Use a Mediator?"

A: "We will have to pay the mediator's fees thatvary depending on the mediator's expertise, es-timate of time required, and complexity of thematter. We are bringing an additional profes-sional into the dispute resolution process whoexpects to be compensated. Fees are, of course,a real-world constraint on identification of anideal mediator. They may, for example, prohibitengaging the services of a mediation team, butit is a concept worth exploring."

Q: What Else Should WeLook for in a Mediator?

A: "Besides professional licensing, there areother guideposts to evaluate a particular candi-date's background and qualifications to serve asyour mediator. Completing focused, high-qual-ity training is a threshold requirement for anycandidate for mediator.[See Forrest S. Mosten,The Complete Guide to Mediation: The CuttingEdge Approach to Family Law Practice 197-221(1997) (description of family mediation trainingprograms).] We will also inquire whether thecandidate has ties to the professional mediationcommunity. Some national mediator associa-tions have, for example, established qualifica-tions and standards for mediators. TheAcademy of Family Mediators ('AE'), for ex-

ample, requires a significant training programand practice experience before accepting an ap-plicant as a practitioner member. Membershipin a mediation related organization such as theAssociation of Family and Conciliation Courts('AFCC') helps insure a mediator's access to de-velopments in the field. A number of profes-sional organizations including the Family LawSection of the American Bar Association, AFMand AFCC have adopted standards of practicefor mediators designed to insure high quality,ethical practice. Any candidate for mediatorshould subscribe to those standards. We alsowill want to inquire about the mediators' expe-rience and seek references from others whohave used the mediator's services before set-tling on a candidate."

Q: "Do Mediators Go Aboutthe Process in the Same Way?"

A: "No. In selecting a mediator, we also need toinquire about the mediator's approach to hertask-a subject about which there is great di-versity within the developing profession.Mediation is a very different process dependingon who the mediator is and what her approachis to the task. Some mediators, for example, be-lieve that they should not express their ownviews of what a court would do in the partici-pants circumstances and simply facilitate a set-tlement; others believe they should provide anevaluation of the likely if the dispute is litigated.[See id. at 22-25 (description of various ap-proaches to mediation); see generally RobertA.Baruch Bush & Joseph P. Folger, The Promiseof Mediation: Responding to Conflict ThroughEmpowerment and Recognition (1994).] Ul-timately, we will have to ask ourselves what wewant from a mediator and will need to identify

one with whom you and Bertrand are bothcomfortable."

Q: "What Role Will Lawyers Playin the Mediation Process?"

A: "A final important factor in selecting a medi-ator is her attitude toward the involvement oflawyers. Mediators' attitudes on this subjectalso differ widely. Some-lawyers as well asnon-lawyers-actively discourage the involve-ment of counsel in the mediation process. Theybelieve that lawyer involvement in mediationinterferes with the parties' self-determination.Some take this view so far as to discourage par-ticipants from consulting lawyers during themediation process. After an agreement isreached, mediators of this persuasion tell partic-ipants that review of the agreement by lawyersis an impediment to ultimate settlement and tryto drive a wedge between lawyer and client."

Q: "Should We Avoid a Mediator Who WantsTo Keep the Lawyers Out of the Process?"

A: "I think we should not engage any mediatorwho wants to exclude lawyers from the media-tion process or who undermines lawyer-clientrelationships. True, there are some lawyers whoactively subvert mediation efforts throughhighly adversarial and combative behavior.Again, however, I am troubled by blanket gen-eralizations. Moreover, lawyer attitudes are im-proving as mediation becomes better know andthe profession's standards are raised. In myview, reflexive anti-lawyer attitudes in the me-diation community are a mistake and discour-age the widespread referrals by lawyers of dis-putes to mediation. Studies have shown that aslawyers become more familiar with family me-

diation they become supportive of the process.[See Craig A. McEwen et. al., Bring in the Law-yers: Challenging the Dominant Approaches to In-suring Fairness in Divorce Mediation, 79 Minn. L.Rev. 1317, 1367-68 (1995) (comparative survey

of Maine lawyers who participate in that state'smandatory mediation program with NewHampshire lawyers which does not mandatelawyer participation in mediation).] Many con-cerns about potentially unfair and improvidentagreements in mediation are eased by lawyerparticipation."

Q: What Role will You Play in MyMediation?

A: "I view myself as your coach rather than aparticipant. My job is to prepare you for whatyou have to do, monitor the process to ensure itis achieving its goals, and to review and confirmagreements. If you want (and with Bertrand,Bertrand's counsel, and the mediator's agree-ment), I will attend mediation sessions and mayparticipate as appropriate. If you and I decide Ishould not attend, I will, of course, want to care-filly review any agreement with you before it ismade final. Ultimately, however, you andBertrand are the primary participants in the me-diation process. My job will be to prepare you tospeak for yourself and to respond to Bertrand'sinitiatives. Here are some of the tasks I will helpyou with before, during and after mediation

"In preparation:

* Help you to understand the differences be-tween litigation and mediation;-Explore what the law is governing your dis-putes about Christina, how a court will handlethe case and what the likely outcome would be;

* Review what the mediation process will belike;

0 Develop concrete proposals to be presentedat the mediation sessions and supporting ratio-nales in terms you can present in a rationale,low-key style;

* Try to anticipate what proposals Bertrandwill make and how you can respond to them;and

* Try to decide if Christina will take part in themediation process in any way (something thatgenerally should not occur without greatthought, and your and Bertrand's agreement).

"During mediation:

* Review what transpires at each session withyou in detail (some mediators write a summaryof a session to the parties and their counsel forthis purpose);

* Develop strategy and proposals in responseto what has transpired so far;

* Help prepare any information requested bymediator, such as proposed parenting plans;and

* Help decide if any expert information (aforensic evaluation) would be helpful to the me-diation process.

"Before final agreement:

* Review memoranda of understanding anddraft agreements before they are made final andsigned.

"Overall, in my role as mediation coach, I willprovide as much support for you as I canthrough the mediation process. Working to-gether, we will try to produce a constructive di-alogue for Bertrand and you, but most impor-tantly, Christina."

Q: "What Can I Hope for ifthe Mediation Is Successful?"

A: "You and Bertrand will have developed aparenting plan that can be incorporated into a

court order. A word about drafting agreementsresulting from mediation: If our mediator is alawyer, I may suggest that he do a first draft of

the final agreement for review by myself andBertrand's lawyer. There are many importantdetails to be resolved in converting an agree-ment in principle in mediation into a final writ-ten document. Some lawyers insist that alawyer for one of the parties do the first draft. I

disagree. If a lawyer for one side does the firstdraft of the final agreement, despite good inten-tions, the details of the draft tend to favor the

side the lawyer represents. Lawyer-mediatorstend to be fairly skilled in agreement drafting.Because they are neutrals, their first drafts tendnot to favor either side on key matters. A 'neu-tral' first draft of a final agreement, in my expe-rience, tends to reduce the possibility that theagreement in principle will fall apart in theprocess of converting it to writing. So long asthe mediators' draft is thoroughly reviewed bycounsel for each side, I prefer the mediator dothe first draft of the final agreement and makechanges based on counsel's comments. Recentstandards of practice for mediators endorse thisprocedure." [See Proposed Standards of Practice forLawyers Who Conduct Divorce and Family

Mediation, Standard VII H (ABA Family LawSection Task Force, July, 1997).]

Q: "Suppose Mediation Fails-Then What?"

A: "You probably define 'failure' as not reaching

a final agreement. I don't necessarily agree.

Defining failure is a question of values. Even if

you and Bertrand do not reach agreement, as a

result of mediation you and he will have nar-rowed your differences and have clearer knowl-

edge of what divides you. Most importantly,you can both say that you made the strongestpossible effort to avoid potentially disastrouscustody litigation for Christina's benefit. Yourrisk is disappointment and expense; the upsideis a successful childhood for Christina despiteyour and Bertrand's divorce."

CONCLUSION e Overall, the role of the law-yer in supporting a parent in mediation is to ef-fectively promote the private settlement of dis-putes by encouraging problem solving ratherthan finger-pointing. Mediation is not an inher-ently "anti-lawyer" process; lawyers who wantto best serve their clients, must, however,change their goal from a "'victory" in court to

encouraging effective parental problem-solvingand compromise. There is a long tradition in thelegal profession of the lawyer as problem-solver, one in which a lawyer who supports aclient in mediation comfortably fits.

Supporting Parent-Clients in Mediation of Child Custody Disputes

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