The advantages of a mediated custody settlement
FAMILY LIFE
Q: I am going to court in the fall to fight my ex for custody of our son. I think I have a strong case but my lawyer wants me to settle. He says I should try mediation, but I don’t want to lose our spot at court. What should I do?
A: If this is your first time at family court, you and your co-parent will be required to attend the Mandatory Information Program (MIP). The MIP is designed to give parents the opportunity to learn about the court process as well as alternatives, such as mediation and collaborative practice.
In lawyer-assisted mediation, the mediator is a neutral facilitator and the lawyers represent the parties. If mediation is unsuccessful, those same lawyers can represent the parties in court.
In collaborative practice, lawyers typically meet with the parties to facilitate discussions without a mediator.
However, if the discussions fail, these lawyers cannot represent the parties at court; the parties would need to retain new lawyers. This stipulation helps to keep the parties engaged in the collaborative process.
After MIP, there will also be meetings, called conferences, where you will be encouraged to settle rather than proceed to court.
One of the reasons we try to help people to settle versus having a decision imposed by the court is that compliance rates for negotiated settlements are higher, and those settlements tend to last longer.
Decisions that are imposed often leave one parent upset or angry. This can undermine the desire to follow the court order meaningfully and it may also leave that person seeking to return to court to resolve other matters.
And it’s not an either/or decision. You can go to mediation at the same time your case proceeds to court.
In fact, even while at court you can continue to negotiate a settlement. In very contentious situations, you can even have your lawyers present to assist in the mediation.
With a settlement, both parents will have demonstrated some capacity to negotiate while showing some semblance of flexibility. Seeing parents resolving conflict more peacefully is a positive message for children. Lots to consider. If you do choose mediation, find a mediator who is comfortable with considerable conflict. And if the lawyers are going to participate, ask your mediator about their experience with lawyer-assisted mediation.
Have a parenting or relationship question? Send it in a brief email to question@yoursocialworker.com. Due to the volume of mail, not all questions will receive a reply.