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How to Make your Mediation Successful: Issues about Children by Barry L. Kohler, posted on October 10, 2017

October 10, 2016 12:44 PM | Anonymous

Whether through private mediation or the court mediation service [1],  a matter involving the other parent and you is scheduled for mediation – and the issue has to do with your child or children [2].  How can you prepare to make this mediation successful?

What is a successful mediation? Almost all mediators define a successful mediation as one in which the parents have reached a workable resolution of the issue or issues, making court proceedings unnecessary. A couple of important points:

♦  It is not about winning or losing. Many people enter mediation thinking of the car-buying model of negotiation: one side asks for everything and the other side offers nothing and hopefully they will meet somewhere in the middle . . . or the parties walk away and look for another buyer and another seller.

But situations involving children are not like that – these types of cases have a different model: the parties xxxxshare a common interest or problem (the child’s welfare or behavior or whatever the issue might be) and they have to find a solution that works for xxxxeveryone: both the parents and the child.

♦  The resolution may not be perfect, but it is workable; that is, everyone can live with it. There is an old saying that a good outcome to a negotiation is when both sides are equally unhappy. It is sort of the same thing with a successful mediation. Rarely (if ever) does one side get everything he or she wanted. But if each side is willing to be a little flexible, each side can likely get much of what she or he hoped for [3].

♦  Mediation, because it is always voluntary [4], can only work if both sides allow for the possibility that the future can be different than the past. No one can forget how the other party acted in the past, and the future may be a repeat of the past, but people can learn and change. A parent who has not been involved may realize what s/he is missing in the life of their child, and want to become involved in a meaningful way in the child’s life.

The central issue is ALWAYS what is in the child’s best interest. If the parents cannot reach agreement on an issue involving their child, they almost always have the option of going to court. But if they do go to court, the judge or magistrate will be focused on the child’s best interest.

A party focused mainly on his or her legal rights (under the law, the prior judgment, or order of the court) will almost never do as well as the parent focused on the best interests of the child. In most cases, it is not in the child’s best interest to have no contact with the other parent. The question is how to provide meaningful contact in a way that benefits the child. Often it may involve a series of steps or stages before arriving at the desired resolution.

What all this means in practical terms is you need to come prepared to show how what you are asking is really in the child’s best interest. It means knowing what is going on with your child: what the teachers are seeing, what the opinion of the child’s doctor and therapist (if there is one) is, what is required to parent a child at your child’s developmental stage, with his or her special needs, interests, and/or abilities. The effort to gather this information in advance of the mediation shows your commitment to your child and is never wasted: this is the same information you will need if matters are not resolved in mediation and the issue must be decided by a judge or magistrate.

Along the same lines, thinking realistically about what outcome(s) you could live with – even if not perfect – is good preparation for mediation. Most of us do not like to have to make important decisions on the spot. Thinking about a range of possible outcomes ahead of time can be very helpful.

Think about what happens if the matter is not resolved in mediation. Often thinking about what will happen if no resolution is reached in mediation can motivate parties to bend a little more to avoid the alternative. Most often, the alternative is having a hearing in court. This is almost always expensive, always involves more time (both preparing and away from work), and takes a toll on both parties and the child. Sometimes it is helpful to think about how you want your child to look back on his or her childhood: parents fighting or parents with different ideas – both of whom love the child – figuring out how to co-parent in less than ideal circumstances.

When parents are able to reach an agreement rather than fight, it is a gift to their child – a gift that only the two of them can give. Many times mediation can help, especially if it is successful!

[1] The official name for the court mediation service is CADRES, which stands for Court Alternative Dispute Resolution Services.

[2] Whether there is only one child or more than one, the considerations are the same. For this blog post, we will refer to “child” but it includes “children” as well.

[3] It is never a “success” in mediation if one side just gives up and says “Whatever.” This tactic may end the mediation but rarely if ever leads to a long-term good outcome.

[4] You may be “forced” by the legal system to go to mediation, but you don’t have to agree to anything; you always have the right to have the issue decided by a judge or magistrate.

About the blogger:

Barry L. Kohler is a mediator who is an attorney, a Certified Financial Planner, and has served as the director      of a bank trust department. His current mediation practice is primarily related to family matters and matters involving families and money, but he selectively accepts other types of cases. He serves on the Maine Court Alternative Dispute Resolution Services (CADRES) roster, is a FINRA-qualified arbitrator, and has served on a Maine Medical Malpractice Screening Panel. Barry has a B.A. degree in Philosophy from University of Pennsylvania, and a law degree from Cornell Law School. He mediates regularly in Portland, Lewiston, Bath-Brunswick, and various York County towns.


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