As a mediator, I have been involved in thousands of custody cases with their many nuances. Frequently, the perspectives of the participants amount to little more than parents playing out traditional gender roles. The mothers often argue a “tender years” position, and the fathers counter with a desire to be more than a mere “weekend dad.” The mediator’s role becomes especially frustrating when the parties truly believe an intractable position is in the best interest of the child. How do mediators help the parties to find a win-win resolution to these difficult disputes?
Both fathers and mothers are dissatisfied with the legal process. Studies indicate that this dissatisfaction extends to lawyers, the law, and the courtroom. As a rule, women feel disadvantaged by the legal system. I frequently hear that men are given a leg-up by lawyers and the system. Mothers often feel that their role as care-taker in the home is devalued by the legal machinery. More than once, I’ve been told in mediation that women fear that their role as a unpaid caretaker will negatively affect them as the “best interests of the child” are determined.
By contrast, fathers believe that the legal process turns them into virtual ATM machines. Most tell me that the legal process treats them poorly with regard to custody. Many express the position that they are devalued as care-takers because they have put so much of their time and energy into the role of bread winner. Especially for men, this is a first experience with the politics of gender. Women have faced a certain amount of discrimination in their gender roles previously. For men, however, this is often the first time they have run into any gender barriers.
Many courts and mediators understand the value of shared physical custody.
Given that fathers frequently express an interest in spending more time with their children in
mediation and courtroom custody battles, one would expect that fathers’ percentage of custody
would begin to increase. Nevertheless, mothers remain the primary physical custodians of
children after divorce and separation.
In my experience, the parent who loses custody in the courtroom often plans for
future litigation. Even if the parent forgoes litigation, he or she lives with a distaste for the
system. Often this bitterness carries into the life of the children without the parent’s awareness.
Of course, the losing parent may simply give up and go away. He or she may leave the child to
the “winning” parent, and move on emotionally feeling that the law has decided the other parent
This begs the question: why aren’t courts doing more to include both parents in
the co-parenting orders for divorcing and separating couples? The data further make us wonder
whether mediators can honor the need for children to see both parents. The answer to the first
question is that family courts are hard-wired by statute to come up with certain outcomes.
Mediators have more flexibility to arrive at resolutions driven by the needs, wishes, and
agreements of the parties.
What is to be done? One commentator has suggested going so far as to destroy all
divorce courts.* With all due respect to the notion and its originator, perhaps there is a less
dramatic step we can take. Let us admit that we, as mediators, can be biased toward the best
interests of the child. Let us further assume that the best interests of the child include having
both parents be important factors in a child’s life.
Mediators must recognize that the parents are the ultimate authority on what the
proper co-parenting arrangement should be. Nevertheless, it is our job to remind the parents that
a child’s best interest might not always be served by traditional gender roles. Mediation’s
flexibility allows us to “tweak” an agreement to give monetary credit to a parent for otherwise
under-valued child rearing. We also have the ability to credit a parent for extraordinary efforts to
earn income and share it with the child. Naturally, these are merely suggestions for moving the
process toward a win-win resolution in which both parents believe that their roles are valued. It
also allows the traditional parental roles to merge with the roles of single parents.
I think we must be advocates for the children as we mediate custody disputes. If
we keep the best interests of the child in mind, perhaps the parents will follow the example. Our
co-parenting agreements will reflect this concern, and more children will thrive despite parental
*Shanoff, Alan, (September, 2010) It’s Time to Blow up Divorce Court, Toronto Sun.
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