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Mediation Vents Steam in the Parenting Plan
by Meredith Kaplan-Gilbert
WASHINGTON JOURNAL
FAMILY LAW
Special to Washington Journal
In King County, all disputes regarding parenting in dissolution and modification cases must be referred to mediation before they can be set for trial, unless a statutory exception exists. This is in keeping with the trend in Washington, which has traditionally been associated with the divorce process.
Like the "no fault" dissolution statute, which was enacted in Washington in 1973, the Parenting Act of 1988 was a step in the direction of a more humanizing, less adversarial approach to dissolution of marriage.
The words "custody" and "visitation," with their connotation of property and ownership, have been replaced in the statute by the words, "parenting plan" and "residential schedule." Parents must now resolve parenting issues in terms of time each will spend with their children and the responsibilities each will assume with regard to their children.
When parties do not voluntarily find ways of sharing the right and responsibilities of parenting, the statute provides a detailed list of factors for the court to consider in imposing its own division of those rights and responsibilities which include: which parent has been primarily responsible for meeting the children's daily needs; the relative strength, nature and stability of the child's relationship with each parent; the emotional needs of and development level of the child; the child's relationship with siblings and with significant adults, the child's involvement with his or her physical surroundings, school or other significant activities; and each parent's employment schedule.
The court is directed to make residential provisions for each child which will "encourage each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child's developmental and the family's social and economic circumstances." RCW 26.09.187(a).
The Parenting Act thus serves to help parties and their attorneys anticipate what kind of parenting plan might be imposed by a court. This has the effect of encouraging settlement out of court through mediation or negotiation.
The Parenting Act requires a designation of a dispute resolution process other than court unless certain limitations apply. Parties are required to choose among mediation, counseling and arbitration as a means to resolve disputes that arise when they cannot agree in an area of mutual decision making or have different interpretations of the meaning or intent of the parenting plan.
The requirement that parents attempt an alternative dispute resolution method to resolve conflicts is testimony that litigation has not served family disputes well in the past and the fact that a better choice exists. Zealous advocacy of a client sometimes leads to scenes of parading the other parent's inadequacies and failings before the judge in an attempt to prove his or her comparative unfitness as a parent. The relationship between parents seldom recovers to the point of being amicable after such an experience, with resultant ill effects on the children's growth and emotional development.
Mediation, on the other hand, usually leaves two functioning parents as well as established patterns of communications between parents and between parent and child.
An alternative dispute mechanism is not required when any limiting factors listed in RCW 26.09.191 exist or when the court finds that either parent is unable to afford the cost of the proposed dispute resolution process.
The factors listed in RCW 26.09.191 include extended willful abandonment by one parent; physical, sexual, or a pattern of emotional abuse of a child; history of acts of domestic violence of a sexual or other serious assault.
A difference of opinion exists among the practitioners and mental health professionals as to whether children should be brought into the mediation sessions. Ultimately the answer must derive from the child's chronological age and emotional maturity as well as the child's stated desires to be part of the process. In the last analysis, children want to love and be loved by both parents and would like nothing better, as a rule, than for the family to be an intact unit once again.
When a child is asked to voice a preference regarding the parent with whom he will be residing primarily, one can never know for sure whether the basis for his stated preference is legitimate and wholesome.
For instance, a child might state that he prefers to reside primarily with one parent because he feels a need to protect that parent from further hurt. Or a child might state a preference on the basis that one parent has a less structured style of parenting, whereas for that particular child more structure would be a desirable catalyst for his optimum development. Other children may genuinely want to be a part of the decision making process which will so profoundly affect them.
I have never personally included a child in the mediation process, although one time it seemed marginally appropriate was a mediation in which parenting of a 14-year old girl was at issue. The father in the case was insistent that he remain the primary residential parent and that the child spend less time with the mother based on the child's expressed wishes to him that that be the case. The mother reported that the daughter expressed similar sentiments to her. The purpose of including the child in the mediation would have been to clarify her wishes and expectations with regard to the parenting issues.
My sense as the mediator in that case was that the father was giving the daughter too much responsibility in choosing the residential schedule and that the daughter would adapt well to whatever the parents decided the residential schedule should be. I ultimately rejected the father's wish to include the daughter in the mediation process.
The daughter began to have signs of stress and depression. This case was ultimately resolved by the parents together choosing a counselor for the daughter who then became an advocate for the daughter and facilitated communications between the child and her parents. Although they were unable to agree themselves what was best for their daughter with regard to a residential schedule, they did agree to an objective standard, which was that the child's therapist, mutually chosen by the parents, would be in the best position to recommend a residential plan best suited to the child's needs and desires.
Other ways to involve the children in the process without giving them the burden of making those momentous decisions themselves are to include them at the beginning of mediation when options are discussed and at the close of mediation to allow them to react to a proposed parenting plan before the parents formally agree to adopt it.
The benefits of mediating as opposed to litigating custody conflicts include allowing the parties to consider such things as work schedules and each parent's preferences for activities with the children.
Mediation encourages cooperative parenting currently and the future by teaching workable skills in dealing with child-oriented issues. Working cooperatively to resolve parenting disputes creates a nurturing environment for the children of the marriage and a positive example of a mature dispute resolution approach.
These benefits of mediation to the client are widely recognized and documented. Clients feel more in control of the process; settlements tend to address each client's underlying interests more fully and adequately; parties are less likely to violate the terms of a mediated as opposed to a litigated settlement; parties tend to learn new communication skills or enhance the skills they already have; children benefit from the reduction of acrimony between parents; an effective, humane dispute resolution method is modeled for the children; and mediation tends to be less costly than litigation.
Mediation also provides benefits to the attorney because mediation considers the emotional as well as the legal issues surrounding the dissolution, clients are more satisfied with the legal process itself. In our no-fault divorce system, parties are not afforded an opportunity to deal with such issues as infidelity and loss of trust.
In mediation, venting of those kinds of emotional issues often precedes dealing with the issues of parenting and asset division. Indeed, failure to acknowledge the existence of these emotional issues often prevents a party from getting on with a reasonable approach to the issues that must be resolved. Ignoring emotional issues can escalate even simple separation issues into a major battle. Allowing those issues to be addressed in mediation allows the attorney to concentrate on the legal issues which, after all, is why the client called him or her in the beginning.
Download:
Mediation Agreement
Parenting Plan
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