Caveat: Because court jurisdictions vary, the information included here is based on Alameda and Contra Costa counties in the San Francisco Bay Area. You can find out about the rules in your jurisdiction by contacting an attorney or asking the public information office available through the courts.
When divorcing, you have a number of options to choose from: You may decide to work with an individual attorney, choose the Collaborative Divorce model, or meet with a mediator. You may also choose to meet with a mediator or an attorney/Mental Health Professional (MHP) mediation team. You also have the option to sit down together and make all your decisions at either the metaphorical or actual kitchen table, not using attorneys or mediators. In the counties mentioned above, you can engage in either a recommending or a non-recommending mediation if you work with a private mediator. If you work with the mediators at Family Court Services, you will be working with a recommending mediator.
When you choose to work with a custody mediator, he/she can help you determine the shape your family will take when all the dust settles. You will be determining the parenting plan for your children, including when they are with each parent. You may want to discuss if the children will move between the residences of each parent or if the parents will move in and out of the residence that the children live in. A mediator can help you think through the pros and cons in making any of the decisions facing you.
The primary role of the mediator is to help you make important decisions regarding your children. This is true whether or not it is a recommending mediation. If you are engaged in a recommending mediation, should you and your ex-partner not come to an agreement regarding your children, the mediator will make a recommendation to the court as to what would be in the best interests of your child(ren). Most MHP mediators are well-versed in child development and can talk with you about what is most common for the age of your child. You, however, are the experts for your particular child. The combination of the two is very helpful in determining how to move forward.
Some things to know about mediation:
- Mediation can be less expensive than other divorce options. It is very appropriate for parents who are interested in doing what is best for their child. Where domestic violence or child abuse are in question, it is often not the best option.
- Mediation is useful for parents who are not looking to place blame or get revenge on the other party. It provides an environment to discuss difficult issues where some amount of disagreement exists with a neutral party who can help smooth over rough feelings and provide a focus for the conversation. Making these decisions comes at a time when both parents are likely at their most vulnerable.
- At times, a mediator might elect to talk with other professionals about you or your children. This may only be done with your written permission. The mediator might wish to speak with collaterals such as, teachers, therapists, evaluators, etc. to assist in having the discussion about your child(ren).
- Because emotions are often frayed, the mediator might meet with each party separately for one or more sessions. These meetings are not confidential as regards the other party. Sometimes it is helpful to air a concern without having the other party present. It does not become a secret, however. The mediator can divulge the information to the other party as he/she sees fit to help reach an appropriate outcome for the child(ren).
- Mediation is not psychotherapy, even if the person providing the mediation service is a licensed MHP. The mediator brings his/her expertise in psychology, such as child development to the mediation, but is not providing psychological services.
- When the mediation is completed, a Memorandum of Understanding (MOU) is drafted by the mediator and sent to each party and their attorneys, if they are using attorneys. This can then be incorporated into the larger Marriage Settlement Agreement (MSA) and become an order of the court along with the other decisions (financial, etc) you have made regarding your divorce.
- In addition to the custody schedule and holiday/vacation schedule, you may also include such decisions as education, religion, sports, medical, etc. The mediator you work with can help you choose the details you wish to have in your MOU.