Prepare Your Client for Child Access (Custody / Visitation)
Child access or
"custody" mediation will be ordered in the vast majority of cases that involve
custody and visitation litigation. The success rate for this type of mediation,
as measured by the party's ability to obtain a partial or total agreement that
resolves the child-related issues, is between 60 percent and 65 percent. Under
these circumstances, the careful practitioner will want to insure that his
or her client is adequately prepared for the give-and-take of the mediation
sessions (usually two separate sessions), yet mediators report that many parties
still appear for their mediation sessions uninformed and ill-prepared. As we
know all too well, the uninformed and ill-prepared do not necessarily make
workable agreements (i.e., those after-the-fact clients who want you
to pull a rabbit out of your hat).
Schedule a meeting with your client prior to the onset of mediation, preferably
after the commencement of the parent education seminars, to prepare for the
mediation sessions. It is unfair to your client to assume that they can appear
for their mediation sessions and hammer out an agreement without your counsel.
At this meeting you should explore the mediator's role in the Alternative Dispute
Resolution process, and also discuss in practical, concrete terms the parameters
of a potential agreement. This also serves to clue you in to what your client
truly wants, which they may not have done for themselves. Remember, divorce
and custody equals trauma.
As for the nuts and bolts of this client prep meeting: although it may seem
obvious to you, but tell your client not to bring the children to the mediation
session and tell your client not to bring the new "significant other".
Most important, strongly urge your client to actually show up for the sessions;
in many jurisdictions, clients are charged for missed sessions.
It is crucial that your client understand the role of the mediator; the brief
explanation of the mediator's function that your client receives at your scheduling
conference should be your starting point for this discussion, not the sum total.
Advise your client that the mediator is not a judge, not an arbitrator and
not an advocate; the mediator does not take sides and will not represent the
interests of a party who is not prepared. On the other hand, your client's
odds of creating a workable agreement increase as soon as they realize that
mediation is the best chance they have to maintain some control of their situation.
Explain that the mediator will ask each party difficult questions that force
them to explain and defend their positions, and that the mediator will use
the answer to these questions to nudge each party towards an agreement.
Mediation fails when a party continuously recites their wish list; your client
must be able to adapt to the fluid situations that develop in the course of
the mediation session, and your discussions must include a proper response
to the gamesmanship and posturing that accompany domestic mediation. Remember
that the opposing party brings a host of their own grievances to the table
and that they may not even want to obtain an agreement; your client must be
prepared to ignore the verbal jabs that are a part of any mediation session
(and that can be delivered with ruthless accuracy by any estranged spouse/partner)
and to concentrate on the issues that you have identified as of paramount importance.
Finally, although most jurisdictions have mechanisms to allow for attorney
review of any proposed agreement, advise your client not to sign anything until
you have had an opportunity to review it with them. Many times, clients wish
so desperately to resolve the matter that they enter into agreements without
considering the details of the proposed child access schedule (and the devil
is truly in the details of a child access schedule). Actually sit down with
your client and a calendar and have them explain the schedule to you. If they
have trouble demonstrating how the schedule works in the sheltered environment
of your office, you can only imagine what problems lie ahead when the "holidays" arrive
and they have to deal with "the other side". Your client probably has no more
desire to call you on the eve of a holiday with a frantic custody/visitation
dispute than you have in taking such a call.
A helpful mnemonic device in this case is "Think it through until you're
blue." It will pay dividends to you and your client in the long term.
Walter A. Herbert, Jr., is a member of the MSBA
Family & Juvenile Law Section Council and edits Family Law News, the Section
Council's quarterly newsletter. Justin J. Sasser is the Chair of the Prince
George's County Bar Association Family Law Committee.