The Diavorce Solutionist

Strategy in Going to Mediation as Pro Se in Custody

Some Family Courts make their business to incorporate means of handling custody cases in the most amicable way possible. Although there are what are called alternative dispute resolution methods, Family Court is different from Civil Court in that respect. In Civil Court, there are several alternatives to litigation, like arbitration, cooperative, etc. Family Court, on the other hand, relies on mediation and collaborative law, as their means for coming up with low-conflict or “peaceful” ways to resolve cases.

Mediation in Family Court custody cases is a process where a neutral third-party professional (either a lawyer, therapist or someone specifically trained in the field of family law) will meet with the parties to help them come up with an agreement to resolve custody and visitation. The focus of mediation is to give the parties the guidance they need to come up with a voluntary agreement on their own. The parties have much more freedom to make their own decisions with respect to their case and thus are more likely to do it amicably (at least in theory). The meetings are usually confidential, meaning the parties are restricted from discussing anything shared in mediation in court. This is to ensure the parties feel comfortable enough to openly discuss their issues which ensures their willingness to work together on coming up with an agreement. Custody issues discussed in mediation, including legal and physical custody; parenting schedules; parenting plans and anything related to these.

Why Attend Mediation Pro Se:

Custody mediation is not intended to be very adversarial so representation would seem unnecessary. However, there are times when the court requires mediation, and doesn’t take into consideration the high conflict that already exists in the case. If this is the case, then chances are the parties are represented anyway. But in instances where mediation is not required, or the case is not high conflict, representing yourself serves many purposes.

It is not a secret that attorneys can make any custody case more volatile by their mere presence. Attorneys tend to want to drag things out, prolong getting certain things done, or do other things that can make things worse. Don’t get me wrong, there are times when their tactics are legitimate, and just happen to make things more complex. But when it comes to mediation, unless there are extremely sensitive topics that require the expertise of an attorney or that an attorney would be suited to address in mediation, appearing pro se is certainly doable.

Strategy in Going to Custody Mediation Pro Se:

Strategy is critically important when you self-represent in any court, but certainly Family Court. Since Family Court is known for its propensity to issue inconsistent, biased and/or illogical decisions, having a solid gameplan for navigating it is essential. It entails assessing where you are, identifying the other party’s goals & anticipating how they plan to reach them, discerning the strengths & weaknesses of both sides’ cases, and coming up with a plan based on all of these.  This is how you ensure that your next moves are something that will get you closer to achieving your desired results.

Well, how can you identify the other party’s goals or weigh the strengths or weaknesses of their case if you don’t know them? You have to put yourself in the position to hear what they have to say and what better way than in a setting where they feel comfortable sharing? Whether you settle your custody case in mediation or not, it is always an opportunity to see the other party’s hand. Even though you’re prohibited from sharing anything discussed in mediation in court, that doesn’t mean you can’t use the information to help you position your case better.

You will have more understanding of the overall custody court process, gain more insight into whether you need to hire an attorney and be better prepared to move your case forward towards trial.

Tips to Getting the Most Out of Your Custody Mediation:

  • Know the process. If your court makes mediation a requirement before your case can be heard before a judge, it is important that you know this. In addition, you need to know how the mediators are selected or appointed, how they are trained, their costs, etc.
  • Get clear on what you want. You need to know exactly what you want from your custody case. Having an idea of the exact days, times, and locations of parenting time, and who makes decisions concerning medical, school, etc. are just some things to be really clear about.
  • Do your own research on the relevant laws on every single topic that you believe is covered in your case. It is your responsibility to know what laws regarding custody (physical and legal) are, i.e. joint vs shared, legal vs final decision making and so on.
  • Don’t feel pressured and that it’s a waste. The process is exactly what you make it as it is a voluntary one (even though the court might require you to do it). You are not obligated to come to an agreement if you don’t feel it’s in your child’s best interests or it doesn’t work.  In addition, it can be extremely useful, as indicated above, if you go in with an open mind and listening ear.
  • Stay focused on the Child’s Best Interests. Throughout the proceeding, keep the best interests of the child at the forefront. Emphasize how your proposed custody arrangement will promote the child’s well-being, emotional stability, and overall development. Avoid engaging in personal attacks or disparaging remarks about the other party.
  • Be prepared for anything. Mediation should take into account any former history of violence, coercive control, etc. between the parties and should arrange the meeting accordingly. However, don’t bank on it. Be prepared to handle the discontent, the manipulation, etc. in the event the mediator doesn’t do their job effectively in this area.

In conclusion, custody mediation should be viewed as an opportunity no matter which direction your case is headed in. There are advantages to mediation as a self-represented litigant that you would not necessarily experience with an attorney.