Mediation question

[cautiousfather]

Ok we live in a small juridiction. Two judges and a special master who handle family cases and two mediators. One of the mediators was our initial one and bm walked out after 5 minutes when he told her we'd both have to make compromises. (By the way, mediation is confidential in our district) The other mediator used to be our parenting coordinator until she quit.

So d will be going to school in August. We have joint custody but she's residential and they live 2+ hrs away. So her attorney contacts me and wants to know if I would agree to mediation (which our order states we must do) with the judge who is not the judge assigned to our case. I consult two attorneys (my former one retired) Both are stating I pretty much need to agree to this and the 2nd is trying to see what parameters her attorney is suggesting. (with or without attorneys present) Now when we mediated before we were both in a room together and it was a disaster but I guess that when the judges do this (and in thisjuridiction it isn't common for this particular process to be done for family cases) we're put in separate rooms and the judge goes back and forth and triesto get an agreement mediated and from what I'm told kind of using strong arm tactics.

Second attorney tells me I wil need to make a conscious effort to mediate but I don't have to agree to anything but in this case if one party doesn't negotiate in good faith our judge of record will know it.

So for anyone who has been in this type of mediation----I'm asking for guidance. I've got a written proposal I submitted to her that she refused outright. I have a lot of documentation---pretty relevant documentation---do I go in with it? Or do I just go in with 2 or 3 scenarios I can live with and leave it at that? I layed out my case to have custody reversed and he said he doesn't see it happening just based on that but if she refuses to mediate in good faith it could swing my direction but first things first. For anyone that's been there done that any guidance and insight would be appreciated.

[MixedBag]

mediation is the same no matter who is trying to facilitate it.

Yes, IMHO, you should agree to attempt it again, whether it has failed in the past or not.

What it sounds like to me is that the new mediator/judge is going to attempt shuttle mediation.  This technique is used or suggested particularly when there is domestic violence in the situation's history.  I would also recommend using it when one party tries to intimidate the other or when one party is being overly aggressive (like not maintaining their cool).

The mediator's role is to get you two to talk and come to an agreement.

Keeping that in mind, you go in with ideas of your own -- and yes, it's good to have them in writing, but keep an open mind.  There's more than one solution out there and it might be that neither one of you have that solution in front of you right now that you can both be happy with.

Sounds like from your post, you're being given good advice and have a good handle on what's going to happen.

Remember the mediator can report only one of two things:

Mediation didn't work and was unsuccessful.

OR

Here's a written agreement that the two parties say they will agree to (signed or unsigned) -- and yes SIGNED is better.

In many jurisdictions, a signed mediated agreement is binding, however, it must be taken to that second step and turned into an ORDER before it's enforceable in court.  You can't enforce a signed agreement -- can't skip the step of turning it into an order.  So be careful what you sign.

And yes, even if you two agree to an agreement, both of you can back out of it particularly if you didn't sign it at any time before it becomes an order.

[cautiousfather]

Yep..... no domestic violence but definitely yes on her screaming, making demands, and walking out of previous mediations.  My brother who is a doctor is convinced she's borderline.  And no I've never mentioned in court-but have to my attorney just so he has a feel of what we're up against.  The knowledge has also helped me get sucked into her unreality.

I have an open mind--- but I'm not prepared to roll over and become a distant memory in our daughter's life which is what she wants. She wants me out of her life period and so far I've offset her alienation attempts because I have frequent contact----but she's using her starting school to try to cut my time with d to under a 1/3 of what I've had the last three years.

My attorney used to be a judge.  And I hear what you're saying about confidential mediation.  It either was successful or not---but he says if one of us doesn't mediate in good faith---off the record the other judge will know.

Thanks for the heads up on signing anything.

Any other guidance and suggestions are welcomed and appreciated.

Thanks

[shaden3]

There are a few types of mediation methods. When we are dealing with parties experiencing broken and fragile family difficulties, the type of mediation matters. Quick fixes and signed agreements often do not last the for long run.


If getting a written and signed agreement is the main mission, the possibility of ongoing conflict is likely.

Not to bore you with the details - but simply put -  helping people change the way they communicate during moments of conflict is family mediation at its best. The legal process isn't necessarily hampered by the use of mediation during an adversarial process.

But it is important for parties to find themselves in the driver seat, making the choices, thinking through options, brainstorming. Guiding the attorneys to represent what their values are, not asking for things they don't really want.

No party should be under the impression that he or she will be making compromises. Mediation should be brainstorming, talking about what matters to you, hearing the other party's concerns. Pure and simple. It may take many sessions, it may be hard work. The lasting agreements take harder work. Usually louder work, too.

Please ask your mediator questions. What's the training, what's the approach, what is the mediator looking to accomplish? Look for mediators who believe in transforming the parties and their conflicts into productive moments, who believe that getting the two of you talking is good stuff, that compromise is a dirty word, and that the hard work of collaboration is worth the effort.

Good luck.

[RLF]

I've been through 2 mediations.  Here is my advice, for what it's worth.  In both mediations, there was a short period of time where each of us left the room so the mediator could discuss things with just one of us, but most of the time we were face to face.
Mediators vary greatly in quality from one to another.  My first mediator (who got out of family law because he couldn't stand the corruption) told me that mediation is the hot trend for lawyers.  Everyone's doing it but few are really good.  I concur with the comments made above. 

Above all, BE PREPARED, particularly about what the minimum you'll accept.  When I did my first mediation, I thought that I couldn't ask for 50/50 vacation time since my children get 12 weeks of vacation each year, but I didn't have nearly 6 weeks of vacation from work.  I hadn't though about  the fact that they could visit grandparents, etc.  My ex sounds a bit more reasonable than yours (not that that's saying much), but I wouldn't have even considered it had I not spoken to a LOT of people to try to figure out what I was getting into. 

Unfortunately, my mediations took on the tone of each party giving something up.  I came in with reasonable demands, my ex came in with absurd demands.  If you split the difference (which essentially happened), then I had to give up reasonable issues to get her to give up unreasonable ones.  It's a bit of a chess game. 
Based on my limited experience, the end product of a mediation doesn't have to look anything like what a judge would order.  After the fact, I learned that many of the reasonable things that I actually got were not part of standard judgements.  In this way, I think mediation is a great way to take the process out of a corrupt system, IF both parties are reasonable.

Things you should keep in mind (I'm assuming this is your first time):

1. Get things written down--make sure the wording is clear (I got bit in the butt by this one).
2. Try to anticipate issues that may come up down the road (religious affiliation, sharing of medical records, allowable distance one will agree to stay within, right to speak to the children on any day as long as the time of day is reasonable, pick up and drop off schedules and contingincies for one party's failure to show up).  Some of these things are difficult to enforce, but it doesn't hurt to show that both parties agreed to it at one point in time.
3. I strongly recommend putting in writing that the parent gets the right of first refusal when one parent is gone overnight and state that all payments to the other will be considered child support unless noted otherwise (many people have gotten burned on these).
4. Assume the mediation will take much longer than you expect. 
5. Bring tissues.  Lots of scars get opened up, but if it's done right, you'll be able to avoid future issues.

I have a similar distance issue but we've been able to make it work.

Good luck.

RL

ight of first refusa