Using Mediation to Resolve a Custody Dispute
How to Win Child Custody)
Sensible, valid alternatives to the court system exist for resolving custody disputes. We considered mediation (as discussed in chapter ). Usually when you try something else, you’ll have to put your faith to a large extent in a neutral professional. While you should never agree in advance to be bound by an opinion not yet formed, the alternatives in this section come close to that.
You can adapt the existing system by making a few changes. Rather than each of you getting an expert to show that you are wonderful and your spouse is unfit, use one expert of the highest caliber. Of course, you each will meet this expert in advance of selection to ensure he or she is open-minded, receptive to your viewpoint and fair. With the outcome in this evaluator’s hands, be certain you are satisfied. It’ll be impossible to convince the court to disregard a reasonable recommendation made by a jointly selected, qualified expert who has met with all the parents and children.
Consider using a collaborative approach, requiring a commitment by both parties and both attorneys to work together to achieve the best mutually satisfactory solution. This also requires a commitment by all concerned that should the collaborative efforts fail, the parties will have to get new attorneys to litigate the divorce.
Another variation involves interactive counseling with all family members on a regular basis. The right person can help you and your children evaluate arrangements, find out why some work and some don’t, and then settle on the best plan. The counselor first meets with the children and parents individually, then in groups, to determine the basic needs and concerns. The entire group suggests the first approach to try.
The success of this first approach is periodically reviewed and the plan refined to meet the majority of everyone’s needs without totally neglecting anyone’s primary needs. This approach uses feedback to obtain a group resolution of the problem while taking advantage of the skills of the counselor.
This seems to be a fine method, and should have an extremely high degree of success for motivated families. Of course, most families would achieve success with more traditional and less costly means. This method is probably warranted for the cases that don’t seem to have any answer.
A major problem arises if this method fails. The counselor is available to make a custody recommendation. A lot of money has been invested, and this counselor really knows this family. However, if he or she makes a recommendation to the court, the confidentiality that makes therapy work is breached.
Remember when we discussed your attendance at child custody mediation sessions, as required by the court? You knew that nothing you said could be mentioned outside of mediation. You were frank in discussing alternatives. You could admit there might be few problems with your approach, and your spouse’s approach did have some good points. This confidentiality is a major factor in the success of mediation.
Compare this with an evaluation. The last thing you’ll want to do is make any statements that might be used against you in the evaluator’s report and in court. Be as guarded as you would be in the courtroom.
Interactive counseling fails completely if it fails at all. It mixes the adversary process with the conciliation process. You can’t do both well at the same time: you’re either left out on a limb if you’re trying to mediate, or stifling your role in the problem-solving if you’re concerned the evaluation may end up in court.
What is the alternative if interactive counseling fails? Start all over again with a straight evaluation? Most families are staggered by the cost of one; to have to pay for a second one is unthinkable. In a practical sense, there is no alternative but to use the counselor’s recommendation.
In three of the alternatives, mediation, joint expert and interactive counseling, all the power is placed in the hands of the expert you select. Quite frankly, this expert is better equipped by training to make this decision, and has more time, than the court. If you are unable to reach a custody agreement, use of a mutually acceptable evaluator is likely to be the most civilized approach.
In the collaborative alternative, you retain the power, represented by your own attorney, working together to seek the most constructive result possible.
In all of the alternatives, you have the potential to get more than if you go to court, before a judge bound by rules that may limit flexibility, and also suffering the risk of a court proceeding with its limitations on time and admissibility of “evidence.”
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How to Win Child Custody