You are scheduled for mediation for the purpose of developing a Parenting Plan with the other parent. What type of mediation process works best to have a successful outcome? A mediation process that is thoughtful, respectful, and paced to fit the communication style and needs of you and the other parent will increase the chances of mediating a clear and comprehensive Parenting Plan. Why? Because that type of mediation process offers a cooperative atmosphere, promotes direct communication between you and the other parent, empowers you and the other parent to make your own decisions, and lays the foundation for a child-focused approach for future modifications to the agreed-upon Parenting Plan. While this summary is correct, more is needed during the mediation to develop an effective Parenting Plan. The following 10 tips will help you successfully mediate a Parenting Plan.
1. Understand why you are in mediation.
Make sure your attorney or the mediator explains to you the purpose of having a Parenting Plan and that you understand the 3 major decisions that need to be made for legal custody, physical custody, and child support. Walk into the mediation knowing that a judge will sign the Parenting Plan and that it will become an enforceable court order. Also know that you and the other parent control whether a Parenting Plan is agreed to, and the mediator only controls the process of the mediation. The Parenting Plan is not a forever document and could or should be modified as your children get older and their needs change over time. Last, if you are going to be successful, you must listen to the mediator and the other parent, try not to interrupt anyone when he or she is speaking, and avoid yelling or cursing at the other parent.
2. Gather essential information.
Prepare any questions or points you want to make regarding each parent’s work schedules, your children’s adaptability, and the parental pattern of time-sharing with the children prior to a divorce being filed. Also have a list of supplemental points that you want to raise if applicable during mediation such as the other parent’s new relationship or living situation, how the other parent chose to do his or her hobbies instead of spending time with the children when not at work, or how he or she doesn’t feed the children healthy foods.
3. Know your children.
You need to communicate to the mediator the ages of each child, where each child attends school, any physical, social, and emotional needs for each child, and how each should be considered in developing a custody schedule. You also need to communicate any special needs for a child, such as medical, mental developmental disorders, psychological or behavioral disorders, and how the Parenting Plan will need to address those needs in legal custody, physical custody, and child support.
4. Develop a realistic and enforceable plan.
Negotiate for Parenting Plan paragraphs that are realistic in a way that you can carry out what the paragraphs intend to carry out knowing that the Plan is enforceable as a court order. For example, including a clause that states something like, “Mother or Father agrees to never _____,” may not be a realistic paragraph. Can that parent promise to never _____ again? Perhaps a promise can be made for today but “never” is probably unrealistic. Further, how would a court enforce this “never” paragraph? Who is going to be watching Mother or Father to ensure that he or she is never doing as set forth in the Parenting Plan? Focus on realistic paragraphs that can be documented and enforced such as a paragraph that describes pick-up and drop-off times and locations, and each parent’s right to contact a child’s school or treating doctors to obtain educational, medical, and psychological records of the child.
5. Focus on the structure of the parenting plan.
The basic elements of a Parenting Plan should include the following sections: designation of legal custody, designation of physical custody, a school-year physical custody schedule, a summer physical custody schedule, a holiday and special days schedule, and a support schedule. The Parenting Plan will also include several supplemental paragraphs. An example of a supplemental paragraph would be the agreed-upon rules of communication between the parents. Another example can be an agreement to offer the first option for childcare to the other parent when childcare is needed. A third example can be an agreement to mediate disputes prior to filing a motion with the court. Within each of these paragraphs, varying degrees of detail and elaboration can be added as needed for your family dynamic.
6. Try to use child-focused words.
While many parenting plans still are written using traditional legal language such as, “sole physical custody to Mother and reasonable visitation to Father,” it would be best to use language that specifically focuses on the child during mediation. This requires you to use words such as “custody time” or “parenting time” instead of visitation. This also requires you to suggest that your children share time with their parents on holidays instead of stating this is my holiday. A change in language signals a shift from thinking of yourself as the parent who “owns their children” to thinking of the children as “sharing time with their parents”.
7. Use clear words.
Don’t ask for the Parenting Plan to use vague words, such as “parenting time with each parent shall be as the parents agree”. Such wording does not help you know when exactly the children will be with each parent. Instead, be specific so there is no dispute regarding how to interpret a paragraph. For example, if you are a high-conflict family, suggest that the Plan state “during custody exchanges, both parents shall remain in their respective cars while waiting for the children.” Such clear language will reduce conflict and is likely to be much more enforceable if the need for court enforcement arises.
8. The amount of detail should match the amount of parental conflict.
A good rule of thumb regarding the degree of detail to include in your Parenting Plan is to match it to the amount of parental conflict. So, if you and the other parent have a low level of conflict, then you can probably use fewer details in your Parenting Plan. However, if you and the other parent have a high level of conflict, then you need more details to avoid conflict. For example, if you and the other parent share physical custody equally and get along, then you probably don’t need language regarding the children’s clothing. However, if you and the other parent share physical custody equally but don’t get along, then you may need specific language that states: “Mother and Father shall each have a separate set of clothes, diapers, carrying bags, car seats, and other caregiving supplies” or “Mother and Father shall exchange the children at the _____ Police Station custody transfer point”.
9. Understand that both parents will need to concede.
The mediator should always be monitoring you and the other parent to make sure that concessions made by each parent are similar in number so both parents feel as if the Parenting Plan is fair and balanced. Too many concessions by one parent likely results in resistance to reaching an agreement. You should enter the mediation knowing that you will need to concede on some issues. Further, you should know what provisions you are firm on and what provisions you are flexible on so it can be communicated to the mediator when appropriate.
10. Consider partial and/or temporary agreements.
Instead of simply walking away from mediation if an overall agreement cannot be reached for a complete Parenting Plan, you should consider a partial or temporary agreement. A partial agreement leaves less for the Court to decide and allows you to control some of the outcomes of your Parenting Plan. A temporary agreement allows you to try before you commit to those terms as a full and final Parenting Plan.
Should you need the assistance of an experienced divorce and child custody mediator, know that we are here to help and ready to schedule an initial mediation session with you.