1. Set the stage for the mediation process.
Explain to the parents the purpose, contractual and functional nature of the parenting plan, and that a judge will sign the agreement and that it will become a court order, enforceable by the court. Help them understand that they can control the outcome of the mediation, while you will control the process. Inform them that a parenting plan is an organic document that can (and should) be modified as the children get older and as their respective life circumstances change over time. Let them know the logistics of the ways in which they can modify their agreement in the future. Request that they follow basic rules of good communication; e.g. use “I” statements and active listening, no interrupting, no cursing at each other, etc.
2. Gather essential information.
Reduce gathered information to behavioral and observable form, as much as possible. Base any recommendations on specific information included, rather than on vague “impressions.” The information gathered should separate that which is essential from that which is non- essential. For example, essential information might include questions about the parents’ work schedules, the child’s adaptability, and the pre-divorce parental pattern of time-sharing with the child. Non-essential information is usually offered spontaneously by each parent in hopes of positioning himself or herself with the mediator in a more favorable light. Non-essential information includes such things as how many affairs he/she had, how he chose bowling over spending time with the children, or how she didn’t feed the children healthy foods. Distinguishing essential from non-essential information can be accomplished by asking the right questions (with relevant focus on developing a parenting plan for the future) and deflecting wrong answers. Essential information requires getting both parents’ views on everything.
3. Incorporate the developmental needs of the children.
This includes the ages of each child and the developmental, psychological, physical, social, and emotional functioning of each child, before the parental separation and currently. It is also important to ask about any special needs of each child (i.e. medical, developmental disorders, psychological/ behavioral disorders); these are often overlooked by mediators (and judges) when developing parenting plans (Saposnek, et al. 2008). Asking also about unique temperament differences and challenges of each child (Saposnek, 1998; 2006) can help guide a discussion that leads to creating a maximum “goodness of fit” with each parent. For example, it may lead to more time with a parent who has greater tolerance for standout temperament challenges, such as a child with a very high activity level. Or, it may lead to less school-day time in a household with lots of people and noise, for a child with a very sensitive temperament who would be overwhelmed trying to do daily homework in such a setting. Interviewing the child, who may well know what is in his or her best interests, can assist these inquiries. While only a minority of mediators ever interview children (Saposnek, 2004), it is very helpful in gathering accurate information. In fact, judges have been interviewing children quite successfully (Birnbaum and Bala, 2010).
4. Assess information for feasibility and enforceability.
The clauses in parenting plans need to be feasible, that is, realistic in a way that parents can actually carry out what they intend to carry out, and enforceable as a court order. For example, including a clause that states something like, “In five years, Little Richard will live with Father full-time” or, “Mother agrees to never drink alcohol again,” are non- feasible clauses. For one, the best interests of Little Richard will realistically need to be re-assessed in five years and, at that time, living with Father full-time may not be in his best interests. Such a clause is not feasible since the statute can override the parents’ best intentions. And, alcoholics cannot promise to never drink alcohol again; perhaps they can agree to not drink today! Again, such a clause is not feasible and does not belong in a parenting plan. A mediator can include a clause that states the parents’ intent, but the parents should be very clearly informed that some clauses cannot and will not be enforceable by the court. For example, a court cannot enforce clauses like, “No bad-mouthing of each other in front of the children.” However, the parents should be informed of the consequences to their children in doing so.
Feasible clauses that can be documented and enforced are ones that describe things such as factual pick-up and drop-off times, each parent’s rights to contact the child’s school and to obtain educational, medical, and psychological records of the child, etc.
5. Create a comprehensive structure of the parenting plan.
Minimally, the essential elements of a comprehensive parenting plan should include the following sections: designation of legal custody, a regular school-year schedule, a summer schedule, a holiday and vacation schedule, a series of special, specific clauses and conditions. These special clauses can include statements that describe the agreed- upon rules of communication and conduct between the parents (e.g. “The parents agree to use text messaging for regular scheduling matters and phone calls for emergency situations, such as...”). This section can also contain agreements about offering the first option for childcare to the other parent, who the parents agree can and cannot care for the child if neither parent is available, etc. A procedural statement should be included for how future modification of the plan will be made (“Both parents agree to return to mediation before taking any future separate legal action”). Within each of these sections, varying degrees of detail and elaboration can be added as needed for the particular case dynamics. Remember that mediation agreements frequently breakdown because of the inclusion of inappropriate, insensitive, imbalanced or unfeasible clauses, the omission of appropriate and necessary clauses, and the absence of an agreed-upon format for making future modifications of the plan. A comprehensive parenting plan can reduce the chances of an agreement breaking down for these reasons.
6. Use child-centered wording.
While many parenting plans still are written using traditional legal language such as, “Primary physical custody to Mother and reasonable visitation to Father,” it is time to begin using language that specifically focuses on the child. This requires the mediator to make the conceptual shift from parent-focused wording, such as: “Mother shall have primary physical custody of Ricky, and Father shall have visitation rights on alternate weekends, one weekday evening, and a month in the summer,” or, “Mother will have custody during Thanksgiving, and Father will have custody during Christmas,” to child-focused wording, such as: “Ricky will share time with his parents according to the following schedule: He will be with his Father (or, “Father will be responsible for him...”) from Friday at 5:00 p.m. until he returns to school on Monday, weekly. He will be with his Mother from Monday after school until Friday at 5:00 p.m., weekly” or, “Ricky will share time with his parents during holidays according to the following schedule: On Thanksgiving, he will be with Father from... and with Mother from....” This requires the mediator (and the parents) to shift from thinking of parents as “owning their children” to thinking of children as “sharing their parents.”
7. Use clear wording.
Many mediation agreements break down because of the use of vague wording in the clauses, such as “Primary custody to Mother, and alternate weekends to Father.” Such wording does not help the parents to know when exactly the child will be with each of them. For example, Dad may interpret this to mean that the alternate weekends begin on Thursday night and end Monday morning, while Mom may interpret it to mean “Saturday at noon until Sunday at 5:00 p.m.” Such vagueness of wording can cause more conflict between the parents than they had before coming to the mediator! In contrast, a clearly worded clause might read, “The children will be with Father on alternate weekends beginning the weekend of October 30, 2013. On the weekends in which they are with him, Father will pick up the children from Mother’s house on Friday between 4:00 p.m. and 4:15 p.m., and Mother will pick them up from Father’s house on Sunday between 8:00 p.m. and 8:15 p.m. During transfers, both parents agree to remain in their cars while waiting for the children.” Such verbal clarity will reduce conflict over the rules of engagement and is likely to be much more enforceable, if the need for enforcement arises.
8. Match the degree of detail needed with the degree of inter-parental conflict.
A good rule of thumb regarding the degree of detail is to utilize Connie Ahron’s (2004) original typology of post-divorce spousal relationships: Perfect Pals, Cooperative Colleagues, Angry Associates, and Fiery Foes. This typology provides a simplified and meaningful grid for determining the degree of detail needed for a particular set of parents. In general, the lower the level of conflict, the fewer details are needed, and the higher the level of conflict, the more details needed. Some examples follow:
Perfect Pals need: “Ricky will share equitable time between his parents each week, with details to be arranged between his parents.” “Ricky will share all holidays with both parents, with details to be arranged between his parents.”Sometimes, too many details can be as bad as too few details, as it can set expectations for inflexibility and non-cooperation between the parents. The mediator needs to make a judgment call regarding this on a case-by-case basis.
Cooperative Colleagues need: “Katie will also share time with Father, weekly, in mid-week, in the following alternating pattern: Following a weekend in which he does not see Katie, she will be with him from Tuesday at 9:00 a.m. until Wednesday at 1:00 p.m. Following a weekend in which he does see Katie, she will be with him on Wednesday from 9:00 a.m. until 7:00 p.m.” “During the Christmas holiday period, in even-numbered years, Katie will be with Mother from December 20 at 5:00 p.m. until December 24 at 5:00 p.m., and then with Father from December 24 at 5:00 p.m. until December 28 at 5:00 p.m. In odd-numbered years, this pattern will reverse between the parents.”
Angry Associates need: “Each parent agrees to have a separate set of clothes, diapers, carrying bags, car seats, and other care-giving supplies for beginning each ‘on-duty’ time with Angela, in order to eliminate disputes over misplaced, lost or insufficient clothing and supplies available to her. Moreover, the parents agree to maintain a ‘transfer outfit’ that Angela can wear only during transfers between parents, which effectively eliminates complaints about ‘lost clothing.’ Upon receiving Angela from the other parent, each parent will carefully place the ‘transfer outfit’ by the door, and upon returning to the other parent, Angela will once again be dressed in it.” Fiery Foes need: “All transfers of Russell will take place at the Main Street Police Station, with the parent who drops off Russell leaving the premises 20 minutes before the picking-up parent arrives. Father will arrange for the police secretary to retain Russell for those 20 minutes, so that the parents never see each other during transfers of Russell.”
9. Balance parental concessions.
Because of the frequent heightened sensitivity of parents in mediation, the mediator needs always to be monitoring the agreements to make sure that the concessions are balanced between the parents. Too many concessions by one party are likely to result in a flare up of anger and resistance. There is an art to balancing the concessions of the parties. It requires vigilant awareness of the reactions of each party while the other asserts a need.
An example of an imbalanced, one-sided concession likely to get a flare up from Dad is: “Father agrees to refrain from using cocaine and alcohol while driving the children, or while in the presence of the children.” But, re-written as a balance concession (assuming that Mom can tolerate it), it would read: “Both parents agree to protect their children by not exposing them to any use of illicit drugs or alcohol while the children are in the care of either parent, and they agree not to drive the children while under the influence of alcohol or any illicit drug.”
10. Consider partial and/or short-term agreements.
Rather than accepting an impasse in mediation as a failure of the process, it is often the case that a couple will accept a partial agreement rather than no agreement. The final wording of a partial agreement (preceded by all the clauses that they did agree to) could read as follows: “Because the parents are unable to reach agreement on the issue(s) of... they agree to request that the court make the decision(s) for them on this/these last issue(s).” Or, a partial agreement with options could read: “The following possible plans for sharing the children were developed by the parents (Plan A; Plan B). Because the parents were unable to decide between these options, they are requesting the court decide on one of these options for them.”
A short-term agreement of three or six months is often an impasse-breaker, allowing each party face- saving and giving time for the emotional process of divorce to do its magic and soften the parties so that they are more ready to reach agreement when they next meet in mediation.
Ahrons, C. R. (2004). We’re still family: What grown children have to say about their parents’ divorce. New York: HarperCollins.
Birnbaum, R. & Bala, N. (2010). Judicial interviews with children in custody and access cases: Comparing experiences in Ontario and Ohio. International Journal of Law, Policy and The Family, December.
Saposnek, D.T. (1998). Mediating child custody disputes: A strategic approach. Revised Edition. San Francisco, Jossey-Bass.
Saposnek, D.T. (2004). Working with children in mediation. In: J. Folberg, A.L. Milne and P. Salem (Eds.). Divorce and Family Mediation: Models, Techniques, and Applications, N.Y.: Guilford.
Saposnek, D.T. (2006). The use of temperament in clinical practice. Bulletin of the American Academy of Clinical Psychology. Vol. 10 (1), Spring.
Saposnek, D.T., Perryman, H. Berkow, J. and Ellsworth, S. (2005). Special needs children in family court cases. Family Court Review, Vol. 43 (4), October.