When beginning a mediation, I usually ask the parties if they have any experience with the process. If a party has I then ask for more information. If that experience turns out to be child custody and visitation mediation, the person usually relates how it was anything but pleasant. I then explain how child custody and visitation mediation requires a particular approach and that their situation was likely mishandled.

And that’s because child custody and visitation mediation varies state by state, so my comments that follow will probably not be true for every location, but will show how this approach is decidedly different.

Previous to the introduction of child custody and visitation mediation, contested custody was probably decided in a highly adversarial courtroom hearing. Frequently, parents seek to show how the other is “unfit.” At that point of disagreement mandatory mediation may be applied.

So, what’s different? First the mediator may not be a neutral third party. The mediator may be charged with protecting the rights of the child or children. The mediator is typically a marriage and family therapist or social worker. In addition to what the parents may bring to the process, the mediator may order such things as reports from child protective service agencies and assessments from psychologists. And after all that, if the parents are still not able to reach an agreement, in some jurisdictions the mediator makes a recommendation to the court, which is typically accepted.

The issues child custody and visitation mediations typically deal with include:

•   Custody procedures for making medical and other decisions concerning the child.

• Visitation rights and requirements including holidays.

• Child support and other financial considerations.

• Relationships with third parties who may have influence on the child.

• Residency restrictions, such as vacations trips.

This can all be very stressful for parents, particularly if they are continuing their own interpersonal conflict. The mediator must help parents understand that while their marital relationship may be terminating, their relationship as co-parents is continuing and they must learn to work together for the best interests of their children.

A long time child custody and visitation mediator once told me that the most difficult holiday to deal with when the children are young is Halloween. She has written agreements where Dad has custody from Elm Street to Jefferson Avenue and Mom takes over at Jefferson Avenue and continues to Peach Street—all in the best interest of the child.

Sometimes mediation benefits from having two mediators conduct a session. Co-mediation is commonly used and has a long history, so clients are usually not informed as to why their dispute requires it.  

Co-mediation is often used in training programs. And a person matched with an experienced mediator as part of their training, is identified as a co-mediator. Typically, they are not introduced as a “trainee” since by the time they are trained, they are considered prepared.

Sometimes two experienced mediators do work together in specialized areas such as insurance and real estate. If you’ve followed my postings you know that facilitative mediators don’t decide the outcomes but rather assist the parties be their own problem solver. As I so often say, the disputants own the conflict, the mediator owns the process. So you might ask why does the mediator need to know anything about the nature of the dispute?

One of the mediator’s skill is asking questions to help the disputing parties think creatively. If the mediator knows nothing about the area of the dispute, the mediator is at a disadvantage. In real estate disputes I have frequently co-mediated with a former real estate broker. With over 20 years of experience as a broker, she has the background to ask the questions unique to real estate issues that can help the parties solve their problem. 

This approach can slightly alter the process when co-mediators meet in advance to discuss the process. For example, in real estate disputes we agree that my co-mediator focuses on the technical questions while I’ll focus on other aspects, such as summaries. It is important that the co-mediators work together as a team or one disputant may try to “work” the process by trying to get one to side with them. 

Two co-mediators who are comfortable working together may well be more likely to keep the disputing parties involved in the process and, hence, enhance the opportunity for settlement.