When there is a fight over child custody during a divorce, most states require that the parties attend mediation. Mediation serves as an alternative process to help settle child custody disputes.
Mediation is a confidential dispute resolution process in which an independent, neutral third party, called a mediator, helps people settle their differences outside of court. In a child custody case, the mediator helps the parents work out an agreement on child custody.
In some states, the mediator will file a report with the court with the mediator’s recommendation on the custody arrangement. In that case, the mediator’s advice could affect every part of your case for child custody. How, then, can you be sure that you do not make a mistake and do or say something wrong during the mediation?
This article will give you a list of things not to do and say during a child custody mediation.
Don’t Irritate, Argue With or Interrupt the other Parent In Front of the Mediator
These tactics rarely work in front of a mediator. In fact, if you do them, there is a chance these tactics will make the mediator believe you are the problem. If the mediator believes you are difficult to get along with or a manipulator, you will have difficulty getting the mediator to agree with your position on child custody.
Don’t Be Unlikeable
This is a massive issue for a lot of my clients. They want to fight for their kids, which is commendable, but the mediator is not your enemy. The mediator is not someone to fight with. The mediator is going to be evaluating the personalities of both parents. Mediators are humans too.
If a mediator likes you, that goes a long way in getting the mediator to agree with you on custody issues. It is human nature if the mediator dislikes you, the mediator is not like to fight hard for your position during the mediation process.
Don’t Get Upset
Don’t get upset if the mediator brings you a settlement proposal that you disagree with. Remember, mediation is a negotiation process. At the beginning of every mediation, the parties’ initial offers on a custody settlement are not their bottom line, take it or leave it position.
There will be back and forth during the negotiation. Eventually, the mediator will work with both parents toward a settlement with which they can agree.
Don’t Leave the Mediation Until You are Sure You’ve Heard the Best and Final Offer
You shouldn’t leave the mediation until you are sure you have received the other parent’s best and final custody settlement offer. I have had many clients receive an initial settlement offer at mediation that is so insulting that their first reaction is to get up and leave.
You must understand that mediation is a negotiation. I tell my clients it is like buying something from a street vendor in Mexico. There is always a back-and-forth to the process. Be patient, and let the process work. Make sure you hear the final offer before you end negotiations and leave the mediation.
Don’t Assume the Mediator Dislikes You
You should not assume that the mediator is picking on you or dislikes you because he brings up negative aspects of your case during the mediation process. A good mediator will work with both parents toward a settlement. To do that, they will likely bring up some evidence that may hurt your case.
When the mediator does that, it is not because the mediator agrees with the other parent’s position or dislikes you. It is a tactic used to move you toward a resolution.
I always tell my clients that if they feel like the mediator is picking on them, that is a good sign. It means that when he goes into the other room to work on the other parent, he is doing the same thing. Understand that when a mediator says things that may sound like they could hurt your case, the mediator is attempting to move you toward a reasonable resolution of the custody battle.
Don’t Bring Up Marital Issues That are Unrelated to the Children
Don’t spend your time at the mediation bring up marital issues that are unrelated to the children. You could make things harder if you bring up things that have nothing to do with custody and parenting time. Remember that this is not your standard divorce mediation. Reciting a long list of things you do not like about the other parent during a child custody dispute is one of the best examples of what not to say at a mediation.
Don’t Sound Possessive of the Children
Don’t talk to the mediator about “my kids” or anything similar. Instead, refer to your children as “our” children. It is more inclusive and less confrontational. Try to phrase your remarks in terms of what you two, as parents, can do jointly to make life after divorce as enjoyable as possible for your children.
One of the considerations the court will make when determining a custody arrangement is whether the parent promotes a relationship between the children and the other parent. If the judge or mediator thinks you might be trying to turn the child against the other parent because you seem too attached to the child, you could lose the custody battle.
Don’t Let Your Emotions Get the Better of You
Despite everyone’s best efforts, there will surely be times during the mediation when an offer or suggestion will upset you. Do not let that be a justification for losing your cool. It will only undermine the work that has already been done. If your emotions are getting out of control, ask for a break. Going through mediation is an emotionally exhausting process. Take as many breaks as necessary to stay level-headed.
Don’t Assign Blame or Play the Blame Game
There are times when you must mention that the other parent abuses substances or poses a risk to the children, but try to frame the talk in terms that are focused on the children. Obviously, you must bring those up if there are severe abuse or neglect issues. Nevertheless, please do not spend your time making it sound like the other parent is the sole cause of all the problems in the relationship.
Don’t Talk About “My Rights”
Your “rights” do not matter in a custody dispute. The judge and the mediator are more concerned with the children’s needs than with your or the other parent’s rights. Try to remain focused on working towards a settlement that takes the child’s best interests to heart.
Dress Professionally
Don’t come to the mediation dress as if you have just finished working on your car in a hot garage. Dress professionally. Make sure your clothes are clean. You do not have to dress like you are going to court, but you should dress professionally. It shows the mediator that you respect the process.
Additionally, avoid dressing as though you are getting ready for a night out on the town. A mediator will have a hard time seeing past your projected image. Make every effort to make a good impression with your appearance. Do your hair, take a shower, get a professional haircut, and dress appropriately.
Don’t Sign Any Agreement without Your Attorney’s Consent
You should not sign anything at a mediation without consulting your attorney. If you have an attorney, consult them before signing anything during the mediation. If you sign a child custody agreement during mediation and then change your mind, it will be hard for your lawyer to make changes.
Don’t try to Intimidate the Mediator
Do not tower over the mediator; raise your voice, lean forward, or fix your stare on the mediator. Strategies of intimidation may work well in some jobs or at sports games, but they don’t help at all when you are at a child custody mediation.
Remember, you want the mediator to like you and agree with your position on the custody arrangement. Intimidation is not a good strategy to attempt to use on a mediator.
This is a partial list of things to consider as you are preparing for your child custody mediation. Good luck! Keep in mind that the mediator’s main priority is to safeguard the interests of the kids. Being your best self will help the mediator accomplish that goal.
If you have specific questions about the mediation process in your state, make sure you contact an experienced family law attorney in your jurisdiction.