As a strong advocate of mediation and other forms of alternative dispute resolution (ADR), I prefer to focus on the positive aspects of what makes ADR the first choice for resolving disputes, particularly in the area of child custody and placement.

Parents of necessity need to learn to work together – as they will be co-parenting for years into the future. Therefore, it is important that they understand that, together and separately and based on information they have about their family dynamics, they need to be able to make reasonable decisions for their family. If they understand this, they will be more likely to work together with the mediator, rather than turning to the court system and/or a guardian ad litem for the answers.

Mediators, in general, stress the importance of educating the clients about the pros and cons of mediation versus litigation. To this, I would add that, in family law, additional importance can be placed on the parties recognizing that they will be working together for many years, and that one time in the courtroom will not bring their disagreements into final solution.

It is an increased atmosphere of cooperation that I seek, as this focus has demonstrated to be helpful in smoothing bumps that can occur along the way. If the parents believe that each of them has real value to contribute to raising their children, they are more likely to see minor setbacks as just that – minor.

Let Them Speak

Gathering information from the parties to begin the process can be beneficial to the overall settlement options. By allowing each party to opine and/or stress what is important to him or to her, the mediator can find areas of importance to one that aren’t important to the other. In that way, the delicate art of compromise and negotiation begins.

It is always beneficial to create a more cordial atmosphere early-on in the negotiation process, as this ambiance (sometimes quite subtle) can set the parameters for positive progression.

Gentle Reality Checks

Family law mediation is, by its very nature, quite different from other forms of mediation. Custody and placement schedules strike at the very heart of parental and personal self-worth. It is important that each parent is able to maintain that sense of worth and confidence in co-parenting their child. And children in this atmosphere are less likely to feel caught in the middle of warring parents.

I hear many times in the beginning of the mediation: “I want the judge to decide, because I know the judge will decide in my favor.”

Gentle reality checks often help parents to understand that judges are not able to factor in every nuance of every case. If parents understand that the courts are limited not only in time, but in the parsing of what makes each case unique and the court’s knowledge of the particulars in their case, they are more likely to be more thoughtful in their demands and expectations.

Some cases of custody and placement are more self-explanatory than others, and some cases have so many complicated factors that the courts could never schedule enough time to truly understand every aspect. When parents understand that they may have more of what they want in self-created parenting agreements than on court orders, they are better able to move the negotiation process forward.

Emphasize Their Knowledge

The first obligation of a mediator in family law cases, then, is assisting the parties to recognize that they know the particulars of their situation better than the court, and that they also have a more comprehensive recognition of what will work for their family.

This understanding is important for the mediator to recognize and emphasize. By concentrating on the positive aspects of every situation, the mediator can stress to the parents that they can do a better job in making decisions for their family than the court – with its more limited knowledge and with the obligation to sift through the presentation of very convincing arguments by both sides.

Dealing with Mediation at a Distance

With the onset of COVID-19 restrictions and having most mediations conducted via Zoom or conferences calls, parents sometimes become very frustrated with the system, and angry with it and each other, and not only use whatever advantage they can find at their disposal but vent this displeasure loudly and often.

With that kind of non-face-to-face interaction the parties seem to feel less inhibited, and the mediator needs to be more creative in moving mediations forward. A well-respected mediator uses pauses in the shouting of one or both parties who are accusing each other of nefarious activities to ask very quietly: “And how is that working for you.” The silence that ensues can be an understanding and an admittance that it really does not work for them.

It is then the time to ask: “Might you be willing to try something else?” This question allows them, with some guidance, to consider other possibilities. This becomes another way to move the mediation forward, building a different pathway – but a positive one – to a parenting agreement solution.

Taking cues from the parties’ language, what is said or not said, and understanding that even silence can be used productively, can be key to finding different ways to arrive at the same goal.

Working toward True Co-parenting

For some parents, a partial parenting agreement is all they can achieve at the first go-around in mediation.

But if, as co-parents, they can develop a sense of cordiality in working with each other, if there is an understanding that each brings value to the parenting equation, then there is always the possibility that, in the future, the partial agreement can be added on to and expanded – achieving a true working co-parenting relationship.

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 webpages to learn more about the benefits of section membership.