When Mediation Is Not Enough, Part II

In Part I on this topic, I described divorced co-parents who were fighting about the co-parenting schedule for their kids. It seemed unlikely that they would be willing to resolve their major dispute in mediation. Their most likely next step was to take the matter to court, where each would try to convince a judge that the other was a horrible parent. Whatever the outcome, the financial and emotional price would be huge.

What else could they try?

Possibilities for settling a dispute about your parenting schedule that you and your ex are unable or unwilling to resolve in mediation, without going through the expense and anguish of going to court, include these:

• Rely on a child therapist: Jointly select a child therapist to get well acquainted with the kids. Agree in advance to accept that therapist’s recommendation about the parenting schedule.

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• Get help from a child therapist. Jointly select a child therapist to get well acquainted with the kids. Ask the therapist for detailed recommendations about how the parents can best support the children’s healthy psychological development. Consider those recommendations seriously.

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• Enroll in a high-conflict co-parenting program such as this one. 

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• Neutral case evaluation: Jointly choose an expert such as a very experienced family law attorney to tell both of you how strong the arguments you would take to court are. With that information in hand, return to mediation, go to trial, or use one of the next two processes.

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• Arbitration: You both agree to make your cases to a jointly selected arbitrator and accept his or her ruling in place of a Court ruling. This is far less expensive and less stressful than going to trial. 

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• Prepare your case as if you were going to trial, but then, instead of going to court, work with a retired judge. Said judge may call himself a mediator but will probably actually be providing a neutral case evaluation while conducting a high-pressure settlement conference. That process may be less expensive than going to trial.

Jack and Ann* did not choose any of these options. They spent thousands of dollars paying lawyers to argue their cases in court, and they had to live with the judge’s ruling. Ann had said the kids should wake up at her house every school day. Jack had said the kids should get equal time with each parent, alternating homes a week at a time. The judge rejected both proposals. Instead she gave Ann every Monday and Tuesday with the kids, gave Jack every Wednesday and Thursday with the kids, and ordered them to alternate weekends, defined as Friday noon through Monday noon. Neither parent liked the ruling. (It is not unusual for both parents to feel as if they lost the battle in court.)

In the long run, sadly, Ann and Jack seem likely to be back in court many times. They have not done anything to help them acquire effective co-parenting skills. They have not created a set of rules for themselves that both are willing to honor for the benefit of their kids. I hope that the vast majority of the people who read this article will make happier choices. 

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*These are not the clients’ real names. The photos are stock photos. 

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For a free consultation about whether mediation would be helpful for your family, contact Dr. Virginia Colin at mediatorQ@gmail.com or 703.864.2101.