How to Prepare for Child Custody Mediation

One of the most contentious aspects of divorce is often determining child custody arrangements. Especially in already contentious divorce cases, the debate over how to parent the kids together and who they will spend time with can become drawn out and even deadlocked. 

In many counties in California, anytime either party files a motion for custody with the court, the parties are required to attend mediation with the court’s Family Court Services mediators.  There is no cost to this service, and some counties require the parties to watch a pre-mediation video or other orientation prior to attending that session. The California Courts website has some helpful information here. 

An alternative to going to court is engaging in private mediation outside of the courtroom. Mediation is an opportunity to communicate with your ex and reach a mutual agreement, hopefully saving you both time and money in the process. Most divorcing couples are able to successfully engage in mediation to resolve their disputes, and mediation, for this reason, is highly encouraged so long as there is abuse or intimidation is not a part of the family dynamic.

Under either approach, to have the most productive mediation session, you should keep a few things in mind. We’ll go over those below to help you prepare for mediation. 

Write Out a Plan

Rather than going into mediation blind, with no idea what you want out of the arrangement or what you can reasonably expect, you should come up with a joint parenting plan that you think is fair. 

The point isn’t to demand that this plan be the exact terms of your custody agreement but to give you a starting point and make your expectations known. It is far easier to start with a proposed plan to to develop one together during a mediation session.  This way, the mediation session can quickly dispense with issues you both agree on, and focus the remaining time on  finding a way to resolve the issues you do not agree on. Things to consider in a general parenting agreement include: 

• physical custody, how much time the children will spend with each parent,
• the timing and location transitions between parents when school is in session, and when school is not in session;
• how will time be shared on holidays and vacations,

Sometimes, additional provisions can be put in place, for example, how to address a parent’s potential relapse, using Soberlink to ensure a parent’s sobriety before and during their custody time, or to otherwise ensure the safety of the children while in the other parent’s care where that parent has a demonstrated substance abuse or mental health issue. 

Stay Focused On the Children

Mediation is intended to be a meeting of the minds in a space where both parties can discuss their issues without resorting to name calling, finger pointing or bad behavior. 

We recognize that this may not always be possible. A mediator cannot resolve the issues for you, a mediator can define the issues and memorialize any agreements. A mediator is not supposed to take sides, hear evidence about the other spouse’s bad acts, or make decisions for either party. 

A child custody mediation is about the children’s best interests, not all the other things relevant to your divorce. If one party insists on engaging in bad behavior during mediation, remains unmoveable or refuses to meaningfully engage in the process, mediation may not be right for you. 

One way to gauge whether mediation will work for you: have you ever, during the course of your relationship, been able to resolve issues you had amicably?  If the answer is yes, then mediation may be a good fit.  If you can’t recall the last time you felt heard or understood by your spouse, mediation may not be a good fit. 

Work With The Right Lawyer

You can attend mediation with or without attorneys present. 

Sometimes, you just want to make sure that you understand your rights and options, which may not be made clear during your mediation session. A consulting attorney can be helpful to make sure you are on the right track, that you understand your options, and often can propose different approaches that have not been discussed in mediation. A consulting attorney can be known to the other party and mediator or not. 

Sometimes relationships have certain power dynamics that can make one party feel especially vulnerable during mediation. Having an attorney present offers a buffer between the parties that decreases conflict. When both parties are represented, the parties may be separated into separate rooms, with the mediator going back and forth between the parties. This also tends to decrease conflict while allowing both parties to participate in a mediation. 

High conflict and complicated issues are often handled with attorneys present in mediation to work through the “legalese” that is often needed to define and address complicated issues such as dividing a business, establishing permanent spousal support, discussing complicated custody issues, etc. 

We at Hart Ginney LLP act as mediators, consulting attorneys and full-service attorneys for parties going through mediation. AJ Hart is certified as a mediator by the Harvard Law School Institute on Negotiation; Robyn Ginney uses her background as a crisis counselor to help navigate high conflict mediations.  Contact us today to learn more about how we can help you make your divorce as painless as possible.