Frequently Asked Questions About Child Custody Mediation
What is Child Custody Mediation?
Child custody mediation is a method of resolving child custody disputes that allows parents to maintain control over their decisions, as well as maintaining control over what happens to their children following separation or divorce. The more common or better known method of resolving custody disputes is known as litigation, which involves turning the decisions relating to custody over to the court for resolution. Litigation is typically stressful, expensive, and contentious. One of the biggest problems with litigation, however, is that a stranger to the children – rather than a parent – makes decisions about the custody of children who are never known by nor even seen by the judge. Many child custody professionals feel strongly that the components of typical litigation is often not in a child's best interests and does not result in the most meaningful custody plan for children or parents.
How does Child Custody Mediation differ from a conventional litigated custody dispute?
Child custody mediation differs from the more conventional litigated custody dispute in nearly every respect. Whereas in the litigation method that most people are perhaps more familiar with, each party retains an attorney to go to court to "fight" on their behalf in an effort to "win" custody of their children. It is an adversarial process that is based on terms such as fighting, battle, winning, losing. Child custody mediation, on the other hand, is a process in which the parents choose a mediator, often a skilled and experienced child custody attorney, who works with both parents in an effort to assist them in reaching an agreement on issues relating to custody of their children. It is the parents who retain control over the process and over the decisions that are reached. In the litigation model, the court is often used as a forum within which parents fight against each other rather than work together. In litigation, the power to make decisions regarding custody of the children is in the hands of the court. In litigation, children typically do not participate and their input is often not considered. In mediation, children do participate and their input is strongly considered. In mediation, parents are permitted and encouraged to work together outside of court toward the goal of meeting their needs and concerns as well as those of their children. In litigation, parents unfortunately, view each other as adversaries and their divorce as a battleground. The ensuing conflict takes an immense toll on the emotions of each of them, but especially on the children. In mediation, parents have an opportunity to work through their feelings and anger towards each other in an effort to protect and preserve the best interests and wellbeing of their children, and any opportunity that may exist for a peaceful coexistence in the future for the sake of the children.
How long does child custody mediation take to complete, in relation to litigating custody issues in court?
The answer to this question depends upon a number of factors that are beyond the scope of this FAQ. However, speaking in general terms, when parents go to court and litigate custody of their children, it can easily take at least a full year to finalize permanent custody orders. During this year, a number of things need to happen. There is typically an initial hearing at which temporary custody orders are issued. The temporary orders are typically based on written input from both parents, as well as a brief written report from a mediator following a brief mediation session with the parents. The initial hearing regarding custody is limited to twenty minutes. At this hearing, other interim issues are often considered as well, such as child support, spousal support, attorney's fees, and property use. Because of the limited amount of time, it is difficult for the court to receive and consider any in-depth information regarding the parents or the children, and as a result, the initial orders can be relatively cursory in nature, based on the court's desire to give each parent adequate time with the children, based on the parents' schedules, the children's schedules, and any issues or concerns raised by one against the other. After that initial hearing, the attorneys typically engage in a process known as 'discovery' which consists of efforts to gather information to use as evidence at trial. Evidence consists of facts and information that are permitted by law in an effort to persuade the court one parent's position is better supported than the other. There is then often a mandatory settlement conference required by the court. At the conclusion of the settlement conference, a trial date may be scheduled, assuming both parties are prepared to proceed to trial. As stated, it is this entire process that takes up to at least a year in most cases, and can and often does take much longer, depending upon a number of factors.
Child custody mediation is conducted in a very different manner. While each parent may or may not have an attorney, and may resort to the court for purposes of resolving support and property issues, child custody mediation allows custody issues and other child related issues to proceed by way of mediation. Mediation is described in greater detail on the Child Custody Mediation page of this website. To describe it briefly, it consists of choosing a mediator, the mediator is typically a highly trained and experienced child custody attorney, who has been specifically trained in the practice of mediation. Whereas in court proceedings, it is the court that has control over the process and the judge who has the authority to make decisions relating to custody of the children and their wellbeing. In mediation – it is the parents who retain the power and control of all decisions relating to custody and wellbeing of their children. In court litigation, the court issues orders and the parents are legally obligated to comply. In mediation, the parents negotiate decisions that each believes will meet the needs of their children as well as their own issues and concerns. Those decisions are reduced to writing, in the form of court orders, and once agreed to and signed by the parents, require each parent to comply. The distinction is that in mediation, it is the parents who determine what those orders will be. In mediation, the amount of time required to obtain both interim and/or permanent decisions regarding the children is primarily up to the parents. The mediator will anticipate at least two meetings with both parents, at least one of which must be both parents together, as well as one meeting with each child individually. The mediator typically gathers information from other sources, based on the input and issues raised by the parents. These typically include other family members, teachers, therapists, and others who may have firsthand knowledge of issues relating to the children and their needs. Depending upon everyone's availability and cooperation with the process, mediation can be accomplished within as little as three months, or can take longer if the parents need more time to get to a point of agreement and resolution.
What is the cost of litigation vs. mediation in child custody matters?
In this office, attorneys work as both litigators and as mediators. They charge their normal hourly rate regardless of the nature of the case. However, as discussed above, if a process is expected to require at least a year, it is obviously going to be more expensive than a process that may resolve in three months. In litigation and mediation, the fees are based on time required. Often, parents have as much control, if not more control, than the attorney. If parents are willing and able to be cooperative, civil, and focused on their children rather than their anger at the other parent – the process will take far less time than it might otherwise take. With these factors in mind, it is clear that mediation requires far less time than litigation, and precisely how much time is typically in the hands of the parents.
What is the goal of mediation?
As discussed above, litigation is an adversarial process where parties are on opposite sides, each fighting against the other in an attempt to win. This produces anger, stress, distrust, and a great deal of expense. Mediation, on the other hand, is not an adversarial process, rather it is a cooperative process in which parties work together to resolve and agree upon issues relating to their children with a skilled mediator. The primary goal of mediation is to facilitate a child focused agreement between two parents, each of whom care about and are committed to the best interests of their children. Because it is a cooperative process in which the parents work together rather than against each other, successful mediation can also help parents create a foundation on which they may maintain a post-divorce relationship of peaceful co-existence on behalf of themselves and their children.