CHILD CUSTODY AND VISITATION: PARENTS OBTAIN BETTER OUTCOMES WITH MEDIATION THAN LITIGATION

I recently wrote about a study that proved that mediation helped keep children and nonresident parents in contact as long as 12 years post-divorce. Another longitudinal study, this one by Joan B. Kelly, Ph. D., asked participants in both mediated and adversarial divorces to rate their experiences on a number of dimensions. In that study, which covered numerous aspects of the divorce process, mediation participants perceived multiple aspects of their process and agreements to be more satisfactory compared to participants using the two-attorney adversarial approach. And while overall satisfaction is important, critical components of the process – custody and visitation agreements, and the participants perception of their mediator’s or lawyer’s understanding of the children’s needs - may be the most important to all participants because these aspects of a breakup directly affect not only the health and welfare of the children, but in fact, the entire family. Key points from the study:

• Compared to the adversarial group (those using the traditional two-attorney process), both men and women in mediation were more likely to report that the custody and visiting arrangements they negotiated would be better for everyone in the family.

• Fully seventy-one percent of the mediation mothers felt that the custody and visiting agreements reached would be beneficial to all family members, compared to just fifty-one percent of adversarial mothers.

• Mediators were seen as significantly more helpful by their clients in identifying useful ways to arrange custody and visitation than were attorneys engaged in the adversarial process.

• Mediation clients reported that the process increased their understanding of their children’s psychological needs and reactions more than did participants in the adversarial process.

• Forty-five percent of mediation clients believed the process was useful in increasing their understanding of their children’s needs, compared to 28% (men) and 20% (women) of those in the adversarial process.

WHY IS IT THAT MEDIATION CLIENTS PERCEIVED GREATER SATISFACTION THAN ADVERSARIAL CLIENTS?

• It has been suggested that it is the process rather than the person (mediator vs. attorney) that makes the difference.

This conclusion can be drawn from that fact that like myself, there are attorneys whose divorce practice is mediation-based rather than adversarial in nature, and as mediators we are trained in techniques and strategies that differ from those employed in an adversarial process.

• Our goal as mediators is to achieve a consensus - a satisfactory resolution for the participants - rather than a win at all costs.

• A direct outcome of this approach is a result that benefits the participants, and where children are concerned, a healthier and less disruptive agreement that helps insure their continued nurturing by both parents.

My own experience supports this conclusion. I deal with both high-conflict and low-conflict couples. Even in cases of high conflict, I find that the process of mediation, directed by a trained mediator, and in some cases, mediators, forces couples to focus on outcomes rather than “winning.” It is the process, at the hands of a trained mediator, that transforms the notion of winning at all costs into a victory defined as a resolution that is fair, even where the participants are hostile towards each other.