FAQ - Divorce & Child Custody

What if there is a Protection Order or a No Contact Order in place?

Some Protection or No Contact Orders allow for meeting together in mediation. Some people with Protection or No Contact Orders in place are able to mediate just fine in a joint session. Some can’t. When the Order allows for meeting together in mediation, AND both parties are able and willing to:

  1. say what they want
  2. say why they want it
  3. negotiate for themselves
  4. bargain in good faith

then it makes sense to meet jointly.

Whether it is known prior to mediation or discovered during mediation, I meet separately with clients when either one is unable or unwilling to:

  1. say what they want
  2. say why they want it
  3. negotiate for him/herself

Sometimes I am asked if I allow an advocate or attorney to accompany a client when there is a Protection Order in place. I don’t mind having an advocate or attorney present. However, I will only have attorneys present if both parties are represented by counsel and both attorneys are present.

The problem is still one of whether the client can think straight and track and respond. When this is a problem for a client, often having the attorney or advocate present doesn’t really help, and in such a case, we should meet separately.

If I am asked to let the attorney speak for the client in such a case, I must also be able to speak directly with the client. Mediation is an interest-based negotiation process. This means negotiation focuses on meeting the underlying interests in a fair and balanced way. Clients must be able to articulate their interests in mediation. Often, for a variety of reasons, the attorneys are not completely aware of the client’s underlying interests. 

Can we limit the mediation topics to non-financial topics about the children?

Often I get asked if we can mediate custody schedule, holidays, vacation, etc. and leave the property-debt division and the child support to the attorneys or the judge. I will only deal with the property and debt division if both clients and their attorneys are comfortable with it being discussed in mediation. In order to address these issues, all assets and debts will have to be fully and accurately disclosed.

In Idaho, child support is based in part on the custody arrangements and in part on the parent’s incomes. Ethically, it is important that clients experience “no surprises” mediation. So, an estimate of the child support that applies to the various custody options raised in mediation will be discussed (whether or not income and support worksheets are prepared). The child support guidelines also address other child-related financial topics commonly discussed in mediation including allocation of income tax benefits and expenses for health care, work-related childcare, and transportation. 
Although not addressed in the child support guidelines, some parents may choose to discuss expenses for school and extra-curricular activities.

What are the mediation options when one parent lives out of the area?

There are three options:

  1. The out of area parent can come here for each mediation session (whether joint or separate) normally lasting up to 2 hours.
  2. The out of area parent can come here for a “marathon” mediation session (joint) which begins at 9:00 a.m. and takes up as much of the day as is productive allowing for a 1 – 2 hour lunch break during which the clients are encouraged to consult with their attorneys regarding mediation progress.
  3. The out of area parent can mediate separately by telephone normally lasting up to one hour at a time.

Why don’t you mediate with both clients on the phone at the same time?

The role of the mediator requires that the mediator control the process (while the parties choose the content and outcomes). The telephone affords the mediator with only one real process control option which is the hook-flash (hang up) switch, which interferes with mediation productivity. My experience with using the option of putting one parent at a time on hold has also been less productive than just have separate sessions altogether.

What is the difference in outcomes between in-person joint sessions and phone separate sessions?

Because the goal of mediation is a durable, workable agreement, and that is correlated highly with a balance of satisfaction between the parties, impasse is more likely when a balance of satisfaction is less likely. Whenever there is a lot of geography between mom’s house and dad’s house, unless one parent owns a Leer Jet, balance in the level of client satisfaction is very hard to achieve. Therefore, these cases are more likely to impasse. However, that is not related to whether mediation meetings are joint or separate, but rather the difficulty in finding options that work equally well for both parties living farther apart.

Can my current spouse/girlfriend/boyfriend come?

It is up to the mediator whether to allow anyone to participate that isn’t a party to the dispute. When this question comes up, I will discuss the pros and cons of having these other people attend with each party to the dispute before making a decision. If one party opposes having these others attend, I am unlikely to allow it. If you suspect the spouse/girlfriend/boyfriend is having a lot of influence on the other party, it can actually speed things along to have that person present where the influence can be managed rather than having that influence unravel progress made in mediation. It is crucial to alert me ahead of the appointment if this is desired so that I can obtain the necessary permissions.

Do attorneys attend the mediation sessions?

Although attorneys are welcome to attend, most clients come to mediation without their attorneys. I can’t allow an attorney for one party to attend if the other party does not also have counsel present. I encourage each client to review matters with their attorneys before, between, and after mediation sessions so they have the benefit of legal advice throughout the negotiations. Further, I remind all clients that any settlement made in mediation is subject to their attorney’s review and approval.