March 6, 2019 – As a mediator for custody and placement of children, either in a contested divorce or post judgment placement matter, I have found that listening closely and carefully is one of the most effective tools of the family court mediator in assisting parents in arriving at an agreement that will benefit their children and one in which they, as parents, find ownership.

Listening Before the First Session

The listening begins before the first mediation session.

When the parties schedule their initial session, it is not uncommon for one party to be available, for example, only in the morning on Monday and Wednesday, and the other parent only in the afternoon on Monday or Tuesday. What I “hear” is each of the parties imposing his or her will on the mediation early in the process.

As a solution, I offer them three time slot choices and ask them to pick two – giving me one time slot that is chosen by both.

Listening at the First Session

The next listening occurs if one of the parties requests a separate room.

Particularly in cases involving the custody and placement of children, it is difficult to mediate if the one or both parties wish to be in separate rooms. In this situation, there is no way to assess body language or any of the other subtle clues that determine the relationship of the parties – and therefore how the mediator can best move the process forward.

In situations when there is no restraining order nor contact order, but one of the parties is “afraid,” it may be valid to request separate rooms.

The first session is generally informative, and the mediator’s experience of listening can be quite helpful. If one of the parties’ states that he/she is afraid of the other party, yet wants full custody and placement even though there is no restraining order, the party might simply desire to control the other party and the process.

It is important that both parents are comfortable with the ongoing process and invested in the efficacy of mediation. The skill of the mediator and the ability to process the “listening” to achieve this is a delicate balance.

Listening to Words and Body Language: Theirs and Yours

During a mediation session, listen very carefully to what the speaker is saying. Watch the body language of both the speaker and the other parent.

Often, there is so much animosity built up, that it is difficult for the parties to even speak calmly to each other, despite the necessity for the sake and safety of the children that the parties cooperatively discuss the daily living situations of their children.

A cooperative spirit can be achieved if the mediator projects a calm manner and matter-of-fact attitude, speaking of the parenting agreement in a businesslike fashion. This actually helps the parents come to regard their agreement as a business arrangement.

A successful mediation moves the parents from the importance of their personal desires to the importance of their children’s needs.

Addressing Power Imbalances

A mediator who listens carefully and observes the body language of both parties may be able to detect an imbalance of power.

For example, one of the parties may have more financial resources than the other party, and therefore is able to do more for the child. This can be frightening to the other party.

While the mediator cannot discuss or rationalize this imbalance, it is important for each party to have equal input into the final agreement, and for each parent to understand and acknowledge the importance of the other parent in the child’s life.

Addressing Child Support

As a sidelight to this financial imbalance, child support is often the elephant in the room. One parent might wish more child support, and therefore demands more placement time or refuses to relinquish placement time. The other party might wish to reduce child support, and therefore asks for more placement.

Although typically neither party wants to be the first to talk about finances, a discussion of work schedules and caretaking and transportation options usually reveals hidden agendas, and therefore opens possibilities for negotiations regarding placement.

Placement Time and Control

Parties with the majority of placement are usually reluctant to surrender any part of their placement time – and not necessarily for financial reasons. The reasoning can revolve around the greater influence and control over the children.

If I hear parents saying that one or the other has the best interest of the child, and therefore should have more placement and/or input into decisions, I understand that parent striving for more control.

Again, it is a delicate balancing act to move parents into a position of understanding that they are both important to their child’s well-being.

A parenting agreement crafted by both parents in a cooperative spirit is the basis for a cordial and considerate lifelong relationship in co-parenting.

Listening Is Your Guide

It is a mediator’s use of listening – that is, giving the mediator the ability to adapt the sessions as they progress toward a final agreement – that helps produce a workable parenting agreement.

While the resulting agreement may not be what each parent wholly wishes, it can be one that they both can live with – and which places the needs of their child first.

This article was originally published on the State Bar of Wisconsin’s Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section web pages to learn more about the benefits of section membership.