Winning Through Mediation:
Mediation is not designed to deal with other issues such as child support, spousal support, property division, or attorney's fees. Mediation only considers child custody and child visitation.
What is mediation?
Mediation is a process for obtaining an agreement on child custody and child visitation.
It happens when both parents get together with a trained Family Court Marriage Counselor in order to work out a plan for custody and visitation of the children with both parents.
Often it is really the first opportunity since the separation for both parents to sit down and try to work out an agreement on how to raise their children.
California law in fact requires mediation whenever there is an issue of custody or visitation with a minor child and when these issues appear on either party's court papers. "California law requires" that mediation be held before any court hearing.
The purpose of mediation is not to try and get both parents back together and it certainly is not marriage therapy or even marriage counseling.
The purpose simply is to arrive at cooperative agreement called a "Parenting Plan" which details how both divorcing parents will raise their child or children. That agreement will then become part of a Court Order.
Why should an apointment for mediation be scheduled?
Besides being a requirement whenever custody or visitation is a contested issue in a divorce, mediation can be voluntary.
Both parties can use the assistance of a mediator to attempt to work out problems of custody or visitation when the parent cannot, for one reason or another, arrive at an agreement with the other parent.
Also, mediation can be set when either parent wants to make a change in the existing court order concerning custody or visitation.
Mediation is "not restricted to just parents." Step-parents or grandparents can also schedule a mediation appointment when they desire visitation rights.
When should an apointment for mediation be scheduled?
An appointment for mediation is often scheduled in advance by the party's attorney who is seeking a court order.
In cases where one parent files court papers that request custody or visitation, the mediation appointment is made a temporary order requiring both parties to appear at mediation before or on the same day as the hearing.
Voluntary mediation appointments can also be scheduled by telephone or in person.
Winning through mediation:
It is generally true that most women, after separation, retain custody of their children and are often fearful that their husband will try and take some or even all of their rights away.
Fathers are fearful that they will not get to see their children; either at all or not as much as they want. Our experience in mediation is that both parents can often win, using the mediation process instead of fighting in court.
A mediated agreement is almost always more livable than a Judge's Order, since a Judge is not concerned with either parent but is only concerned for the best interest of the child or children.
Furthermore, a Judge is simply not familiar with either parent or the family situation. Also, the give and take a mediation agreement results in and Order that both parents can live with.
Our office has a strong policy of preparing each client for mediation and using what we call a "Parenting Plan" which is given to the mediator and to your spouse, in writing. We will discuss a Parenting Plan more in detail later on in this handout.
What goes on in mediation?
The mediator will first meet with each parent separately and then the children, if they are 8 years old or older. The final step in the mediation meeting is to get the parents together to see if an agreement can be reached.
Other family members, attorneys and friends are not interviewed during mediation and should not be present. Our office strongly recommends that the children not be influenced before the mediation interview in an attempt to persuade them to go one parent or the other.
We do not like either parent playing games with the children outside in the mediation office waiting room, using gifts, hugs and kisses, or keeping the children down the hall away from one parent in an attempt to either influence the children or psychologically harm the other spouse.
What is the job of the mediator?
The mediator's only real job is to help both parents work out a Parenting Plan for custody and visitation. The decisions themselves concerning the plan will be made by both parents.
If an agreement is reached, the mediator will have it typed up and present it to both the parent's attorneys and to the court itself.
If mediation does not result in an agreement, the mediator is prohibited from talking about what went on in mediation and by law, is prevented from making a recommendation to the Judge concerning either custody or visitation.
Q: What is the job of the attorney?
A: To prepare you for mediation.
Look over a detailed Parenting Plan checklist and choose the items of legal and physical custody that apply to your case. Then type up your Parenting Plan and take it to mediation in order that the mediator and your spouse have a copy.
The value of the Parenting Plan is that it is customized to fit your particular case. It also reduces the venting or anger by the other side.
Another benefit is that the Plan causes your spouse to focus on specific issues relating to raising the children.
Often, if your spouse has not been properly prepared by his or her attorney, the spouse will vent anger or frustration thereby preventing or delaying reaching an agreement.
Other problems may arise during mediation include telling war stories about past history or "garbage" in your marriage. The mediator is trained to refocus this kind of discussion into a plan on how to deal with your children.
Remember, the objective of mediation is not to put the other side down or to retell tales of horror that happened during the marriage. Mediation is for the simple purpose of having both parties reach an agreement, nothing else.
If your spouse tries to tell the mediator what a "bum" you are, please steer the conversation away from this by saying to the mediation - "Let's not talk about past problems, that's why we are getting a divorce. Instead, let's look at this Parenting Plan to reach a solution".
What happens if we reach an agreement?
Often times, the mediator will ask the parties to go down to the court and tell their attorneys that they have reached an agreement. The agreement will then be typed up and be brought downstairs.
It is our experience that this sometimes creates a problem in getting a Court Order. Therefore, we ask that you wait in the waiting room until agreement is prepared by the secretary and then have both you and your spouse sign the agreement and date it.
Once the agreement is signed, your spouse's attorney or your spouse, cannot change the agreement or refuse to have the agreement made a Court Order.
What happens if an agreement is NOT reached?
The mediator will go downstairs and report to the court that a mediation agreement was not reached. Both attorneys then will proceed to have a court hearing which is like a miniature trial.
Witnesses are called and each party will be able to testify before a Judge. Juries are not permitted in Family Law cases.
If the children are old enough, the Judge may bring the children back into his office, called "Chambers", and have a talk with the children informally. Often, the children's information is used by the judge in making a decision.
If the children report significant problems or the mediator sees these problems, the court mediator has the ability to request the Judge to appoint an attorney to represent the children.
What is a child custody investigation?
A child custody investigation can be ordered by the Court itself, on its own motion, or by request of either party. An investigation is often made where either parent reports child neglect, child abuse, severe alcoholism or drug use.
In these cases, a Probation Custody Investigator who-is an arm of the Court, will make an investigation and report the results to the Court in the form of a written Probation Report.
A child custody investigation is started when both parents' separately fill out a detailed questionnaire. The questionnaire includes the marital and court history, both parents personal history, the present circumstances of the marriage, and a listing of both parties' witnesses.
Each party can name three witnesses whom custody investigator will interview before preparing the written report.
The questionnaire also discusses the children's background, including their health and schooling. Usually, the Court gives the parties a deadline for turning in this Questionnaire.
There are now procedures for both a full custody investigation, as well as a limited investigation, which might be restricted to issues such as living conditions, home environment, arrest record check and interview of certain witnesses.
The cost of investigations run typically between $200.00 to $500.00 for the most complex cases. The Court may require an advance deposit to start the investigation.
Once the written report is prepared, a Court hearing is set to let the Judge read the report and determining what will happen concerning the contested issues.
If one party is unhappy with the report, the custody investigator can be subpoenaed, crossexamined and witnesses can be called to testify.
The blunt reality is, however, that the Judge often follows the recommendation because the Judge believes that the custody investigator is in a much better position to evaluate the issues of custody and visitation than is the Judge.
Closing thoughts on mediation:
Mediation, if you are prepared and if you have clear goals, can be the best way for you to obtain an agreement on the issues of custody and visitation that you can live with.
Most importantly, an agreement lets you be the involved parent that you want to be in the lives of your child or children.
California Family Law Institute (MAP)
429 Santa Monica Blvd., Suite 120
Santa Monica, CA 90401
(310) 393-0236 Fax (310) 393-4221
California Family Law Institute (e-mail)
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