What Is the Role of Mediation in Custody Battles?

by Beverly Bird
Mediation can prevent a custody dispute from going to court.

Mediation can prevent a custody dispute from going to court.

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Parents tend to be resentful of and have more difficulty with custody arrangements that are forced on them by a judge. Custody mediation is mandatory in many states for this reason. Parents must at least attempt mediation before a court will decide custody issues for them. Even in cases where mediation isn’t mandatory, some parents elect to try it rather than leave the details of their children’s lives up to a judge who's never met even met them.

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The Mediator’s Role

In some states, court-approved mediators have at least a master’s degree in counseling or some related field. Even in states that do not require such degrees, mediators must complete special training. A mediator is not on your side or on your ex’s side in a custody dispute. He’s impartial and his goal is to isolate and work through the issues and problems that have kept you from reaching an agreement on your own. Mediators are usually experts at working with people who do not get along and who may even feel a great deal of animosity toward each other. It’s the mediator’s job to get parents past these feelings, at least temporarily, so they can focus on their children.

The Mediation Process

If a judge has ordered you to attend mediation because of a custody dispute, only issues relating to your children are addressed. The idea is to come up with a parenting plan that works for everyone involved. When a judge makes custody decisions, he must abide by certain laws. However, parents can elect whatever system suits their personal needs, and the court will generally accept the agreement and make it into a court order. Mediation is confidential. You can talk freely with your mediator without worrying that something you say will be used against you in court. Your ex can't legally quote you, and the mediator may not divulge any part of the session, other than an agreement you might reach.

Domestic Violence Issues

Some states, such as New Jersey, waive the mediation requirement when a domestic violence restraining order exists between parents. Other states work around restraining orders. A mediator might meet with you during one session and with your ex during a different session. He might also put you in separate rooms and move back and forth between you to negotiate a parenting plan. If this is successful, it avoids the necessity of both of you appearing together in court.

After Mediation

If you successfully reach a parenting agreement in mediation, the mediator will send copies of it to you or your attorneys, and possibly to the judge. You have a period of time within which to change your mind about certain details contained in it. If you do change your mind, you would most likely return to mediation to try again. However, some states limit the number of times you can return. If you are satisfied with the agreement, you or your attorney will notify the court and the judge will sign your agreement into an order. However, if you fail to reach a parenting plan, the court will set a trial date and decide custody issues for you.