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What Not to Say in Child Custody Mediation

Spouses split up disputing about divorce settlement in lawyers office

What not to say in child custody mediation includes anything unduly offensive, wandering, or disorganized, anything disrespectful to the mediator and the other parent, and anything not in the child’s best interests. Remaining courteous and cooperative is important because the mediator can make recommendations to the court in case you and the other parent do not agree. The recommendations might not reflect well on you if you have been combative.

Respect also maximizes the chances that you and the other parent can reach a good solution. However, there are no specific legal limitations on what you cannot say. Mediation is confidential.

What Not to Say in Child Custody Mediation

You should not say anything in meditation that indicates you are not focused on what is best for your children. Legally and emotionally speaking, joint custody is the best option for children in many cases because it is in children’s interests to have consistent access to their parents. Parents should keep this idea in mind during their mediation sessions.

  • Both parents should stay professional, peaceful, and polite in the sessions.
  • They should keep the discussion specific and focused on the identified topics.
  • The parents need to realize that each cannot always get his or her way.
  • Multiple schedule possibilities and parenting plans are good to bring to mediation and discuss. 

It is fine to speak candidly, but that does not mean speaking everything rude that comes to your mind or disparaging the other parent. If you behave unprofessionally and mediation is not successful, then whatever the mediator writes to the judge might not reflect well on you.

Avoid cursing and putting down the other parent, your children, in-laws, and other family members, the mediator, the judge, and others involved in the process. That can be tricky when sensitive topics, such as substance abuse, are at play. However, there is a difference between saying, “she tends to stay out late and drink on weekend nights, so I think the children are best with me,” versus, “she’s a drunk who constantly parties on weekends and should not have the kids.”

Often, the parties and the mediator are the only people present in the room. However, each parent can ask to bring a neutral support individual who does not participate in the talks. Examples of neutral support individuals are therapists, attorneys, or advocates of some kind. If you attend as a support individual, be careful not to jump into the middle of parenting discussions. Separately, mediators may interview the children in question.

How Do You Prepare for Child Custody Mediation?

To ensure the most successful mediation sessions possible, try to get enough sleep the night before. Think about your non-negotiables and how you might approach discussing them. You should also have a good idea of the other parent’s non-negotiables, as well as areas where the two of you could find a compromise.

Anticipate concerns the other parent may have. Perhaps the parent is worried about substance abuse, new dating partners, your work commute, or some other aspect. Prepare your reasoning for why his or her concerns do not conflict with the parenting plans you have in mind.

When writing down ideas or possible parenting plans, be as specific as possible and think things through to their logical conclusion. For instance, if you insist on having your child during the week, it helps to track your schedule and how it is conducive to caring for your child during the week. 

If you have asked to bring a support person and your request was approved, double-check that the person can attend. This person is supposed to be neutral and remain silent. If he or she violates guidelines or behaves badly, that might reflect negatively on you. Choose a support person who will not hurt your case. Support persons should be neutral people such as therapists or attorneys, not, say, your mother. However, it may be a huge morale boost for you to have a loved one at the mediation session.

What Is Child Custody Mediation?

Child custody mediation has three main objectives and is useful when you can’t settle on a parenting plan in Illinois. The sessions are for the parties to determine for themselves the best way to split child custody and child obligations between themselves, to do so in ways that are economical, quick, and amicable, and to encourage honesty and candid talk by keeping discussions confidential and respectful.

The mediator is the person who helps the parties identify and resolve their issues. The mediator’s role is also critical for minimizing misunderstandings, listing the parents’ priorities and interests, and exploring solutions, especially approaches the parents may not have considered. This person could be someone in private practice or a court employee such as a family counselor, social worker, or psychologist.

In other words, mediation occurs when a neutral third party works with both of a child’s parents to determine issues such as parenting time, responsibilities, child custody, and visitation. Mediation can be something the parents sought themselves (private mediation) or something the court ordered. 

Mediation helps avoid contentious hearings in front of a judge and promotes amicable solutions. If a judge has to decide on parenting issues, neither parent may be happy with the results. With mediation, the parents have the opportunity to design solutions they are both happy with, even if the answers are not what they initially wanted for themselves. The sessions focus on the issues that the parents have trouble resolving. For example, if the parents agree on virtually everything except the school the child attends, then the sessions focus on that.

Mediation is often successful, but it is not fail-proof. It is more likely to fail if one or both parties do not enter with an open mind and a willingness to find solutions that benefit both parents and the children.

In many cases, the parents disagree on a variety of issues. Mediation typically helps the parents develop a parenting plan to address parenting time, holidays and school breaks, decision-making authority, extracurricular activities, education, religion, and other issues. What not to say in child custody mediation remains the same no matter the topic at hand. Always strive to keep your children’s best interests in mind and focus on seeing how your children can receive access to both parents.

In Illinois, the court must schedule a case-management conference within 90 days of a divorce or child custody case being served after it is filed. At that first conference, the judge schedules mediation if the parents do not agree on child custody issues.

A judge might waive mediation if it has been unsuccessful in the past or if abuse is a problem, for instance, if one parent has an order of protection against the other. It may also be waived if the case is extremely contested and both parties agree that mediation would be futile. It is unlikely a judge would waive mediation just so you or your ex could jump straight ahead to fighting your parenting issues in court.

There may be a bit of a wait for your first mediation session, especially if it is court-ordered. In the Chicago area, the first session maybe two months or even further out after the judge enters the mediation order.

Private mediation can take place over any number of sessions. Court-ordered sessions tend to occur just once or twice for no more than a few hours each.

In private mediation, both parties generally split the costs. Court-ordered mediation is free in some counties. Where it is not, the court orders how the cost is split and can schedule reduced fees or free mediation if the parents meet the criteria.

In private mediation, the parents may request separate mediation sessions on how to divide their assets and debts and other divorce-related issues. If they are in private mediation, it might be with the same mediator.

If mediation fails, the court may appoint a guardian ad litem (“GAL”), an attorney representing the children’s best interests. This person meets with the parents and children to evaluate the family dynamic and to review the current and proposed parenting plan arrangements. This representative makes his or her recommendations to the court regarding parenting time and child custody. Judges usually, but not always, follow the recommendations of the GAL since the GAL has spent hours interviewing the parties, children and other witnesses.

Now, if both mediation and a guardian ad litem do not help, a parenting coordinator may be appointed to step in. This person spends much more time on the case to understand the various parties and dynamics at play. This person often has both legal and mediation expertise. A major goal of the parenting coordinator is to protect children from conflict, help the parents work out their differences, and preserve their relationships with their parents as much as possible.

Parenting coordinators sometimes can make temporary decisions. Their long-term custody and parenting time recommendations to the judge are not legally binding, but judges often follow them.

Uncontested divorce lawyer Denise Erlich is passionate about helping divorcing couples in the greater Chicagoland area transition to their new life as seamlessly as possible. Ms. Erlich patiently guides her clients through every step of the divorce process and provides clients with candid advice about their case and legal options, so they can make informed decisions about their future.

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