The Role of Mediators in Resolving Child Custody Disputes

Mediation is a well-known form of alternative dispute resolution. Under Rule 68(B) of the Arizona Rules of Family Law Procedure, mediation is available in every family law case involving an issue regarding “child custody or parenting time.” Many of our clients have had good experiences in reaching parenting agreements through both private and court-ordered mediation. If you anticipate that custody or parenting time issues may be especially contentious in your divorce, then mediation might be a suitable alternative for narrowing the issues before trial.

In almost every family law case, using the services of a professional mediator to resolve custody disputes will be less costly than litigating those issues. The mediator focuses on helping the parties move toward agreement. Every disputed issue has the potential of being fully resolved through mediation. But even partial resolution on some issues will help the family and advance the case. Even when a trial is scheduled, many issues can be mediated successfully in advance of trial, removing those settled matters from the trial agenda. The fewer issues in dispute, the fewer issues are litigated, the fewer decisions the court will make for the parties.

The Process

The mediation process requires that the parents meet with the mediator to discuss custody and parenting issues. The mediator will conference with either or both parties first, before the mediation process begins to ensure that it is appropriate for a particular couple. The parties may request private mediation or mediation through the court’s conciliation services program.

Mediation can help couples resolve their child custody and access time disputes in the following ways:

• Help narrow the issues between the parents to facilitate compromise and settlement.
• Help get an accurate sense of the relative strength of each parent’s legal position.
• Help maintain control of the terms and provisions of a parenting agreement between the parties, as opposed to the court dictating the terms after a trial.
• Help avoid the expense, stress, and unpredictable nature of a contested trial.

In mediation, there is no reporting what went on during the sessions — the process is a confidential one. The parties’ attorneys generally are not permitted to attend the court sponsored mediation. It is critically important that the parties trust that what is discussed during the session will not be divulged to anyone, not even to the judge.

Settled issues are written into an agreement by the mediator and signed by the parties. The parties’ attorneys have an opportunity to review the agreement and may file a timely objection with the court if need be. If there is no objection, the signed agreement is submitted to the judge who will sign it as a court order, making it a binding custody agreement on the parties. Even if there is an objection to the agreement, the judge has the “final authority to accept, modify or reject” the agreement, or set the matter for a hearing.

Domestic Violence

Perpetrators of domestic violence often try to control their victims with threats and physical aggression. When these conditions exist, it can be difficult or impossible for the mediator to assist in dispute resolution. Furthermore, with domestic violence issues, mediation will only be ordered when “policies and procedures [are] in place that protect the victim from harm, harassment, or intimidation.” And if it seems to the mediator that domestic violence in the family is undermining the mediation, making it an inappropriate alternative under the circumstances, then the mediation will be terminated.

Arizona’s Court Program

Under Arizona’s court program, a party files a request for mediation asking that the court order a conference with a mediator to discuss child custody and child access disputes. The program is available to couples with children at a nominal cost, but only custody and parenting times issues are presented. The purpose of this dispute resolution process is to attempt an agreement on some, or all, child custody issues in contention. Whenever possible, the court-appointed mediator will assist the parties in reaching agreements that benefit both parents and their children.

Usually, it takes about two months for the mediation to be scheduled with the family court conciliation services. By requesting mediation early in the case, the parties can reserve an appointment and avoid unnecessary delays. And if a parenting agreement is reached before the mediation is scheduled to take place, then the court is notified of the settlement and the mediation is cancelled without penalty.

Private Mediation

The parties may also retain the services of a private mediator at their own expense. This saves time by avoiding the customary two-month wait for the family court program. A private mediator can assist the parties in reaching agreements on any number of issues and is not restricted to disputes over child custody and parenting time like the court’s program. A significant benefit of private mediation, then, is that any dispute can be presented along with matters of custody and access.

Conclusion

As a facilitator, the mediator helps the parties work toward agreement on the disputes presented. If parents can reach agreement through mediation, it is very possible that a court date will not be necessary to resolve custody. By reaching a mediated agreement, the parents maintain “control” of their child custody arrangement. Without a custody agreement, however, the court will decide all custody issues at trial in the best interests of the children and dictate the custody terms to the parents.