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Do's and Don'ts of Custody Mediation

by Chandra Moss

In California, anytime custody is an issue in a family law matter, the parties are required to go to mediation. In some counties, mediation is simply a forum in which a neutral third party helps the parents to work out an agreement. However, there are some counties where the mediator makes a recommendation to the judge. That recommendation can set the tone for your entire litigation. So how do you make the best of what could be a bad situation?

Consider the following:

DO make sure your paperwork is complete if you are the moving party. If you are the responding party make sure you have filed and served your responsive papers prior to mediation.

DO be on time. The mediator’s schedule is usually jam-packed and often, if you are more than a few minutes late, you will not be seen.

DO make all your remarks to the mediator child focused instead of “me” focused. Remember this isn’t about your “rights” as a parent. It’s about the children, your relationship with them and your ability to co-parent.

DO ask for separate mediation if domestic violence is involved in your relationship. You do not have to sit in the same room with your abuser.

DO come into mediation with a custody plan and logical reasons why it should be implemented.

DO talk about the children as “our” children. This takes practice, because we all conversationally refer to them as “my kids”. The explanation is below under DONT’S

DO make sure you get a good night’s sleep before mediation. It might be difficult, but you want to make sure you are alert and responsive to the mediator’s questions. Also make sure you have eaten decently so that you are able to concentrate on the mediation process rather than how empty your stomach is.

DO be polite. You don’t have to be best friends with the mediator, but neither do you want to be on the mediator’s bad side.

DO ask your attorney to help you prepare for mediation. The hour or so spent on preparation is well worth the cost.

DON’T be obnoxious, argumentative or interrupt the other parent. Those tactics usually backfire, with the mediator believing you are the problem.

DON’T point fingers at the other parent or engage in the blame game. Yes, there are times when you need to point out that the other parent has a substance abuse problem or is a danger to the children, but think about couching issues in child focused terms. For example, “Jane is a good mother, but I feel sometimes she lets her need for alcohol overshadow the children’s needs” as opposed to, “Jane is a drunk”. Use “I” statements.

DON’T lean forward, loom, or stare at either the mediator or the other parent. Intimidation tactics, while they might work in the boardroom or during a sporting event, do not work in the context of custody mediation.

DON’T sign anything in mediation without consulting your lawyer, if you have one. Once you sign on the dotted line, it makes it difficult for your lawyer to argue against the recommendation if 1) you change your mind; or, 2) you forgot an important provision that needed to be made.

DON’T talk about wanting 50/50 time shares or any percentages of timeshares. That raises a red flag to the mediator that you are only in this for a reduction/increase in child support, since part of the child support calculation is how much time each parent spends with the children.

DON’T talk about “my rights”. Ever. The mediator and the judge don’t care about you or the other parent – they care about your children.

DON’T refer to the children as “my” children. Another red flag for the mediator – someone who seems possessive of the children will not be found to be the parent who fosters a relationship between the children and the other parent – one of the statutory factors the Court must consider when fashioning a custody order.

DON’T dress like you’re going to wash the car or headed out for a night on the town with the girls. Looks may be deceiving – underneath the oversize T-shirt and low slung jeans might lurk the heart of a great parent, but a mediator and/or judge will have a difficult time seeing past the image you project. Dress business casual, get a haircut, cover your tattoos. And please, do not wear flip-flops!

This is not an all-inclusive list. Keep in mind that above all else, the mediator is looking out for the best interests of the children. You can help the mediator achieve that goal by presenting the best you.

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