Thursday, May 15, 2008

What Can You Agree On?

I'm excited because I just finished mediating a case that really worked.  

To be honest, the first time I met the couple, I really had my doubts.  If he said the sky is blue, she'd say, "you're lying - you know it's green!!"  I mean they couldn't agree about the most basic of facts.  But they both clearly loved their daughter, and they were both responsible parents.  The problem was that the mother wanted to move to another city, several hours away.  And the father had had the child just about half time.  And going to court to fight over custody just made everything between them worse.   At the end of the first session, I said, "Your daughter will be fine if she lives with you, or if she lives with you.  But she will not be fine if you keep fighting like this."

We met over several sessions - each a few weeks apart.  We worked on small agreements, to build up trust - when the child could call her other parent.   How they would notify each other.  We explored what they both needed.  What they both considered  to be fair.  

They were making a lot of progress (and even shook hands at the end of the 2nd session).  But they were already in court and we had that pressure looming over us.  Would they be able to come to a full agreement?  I realized that they probably could not.  The father didn't want her to move, the mother needed to go.    If they gave up on mediation, the judge would decide everything - not just where the child will live, but how much time the other parent gets to spend with her.  

I asked each parent to do some homework:  Assume the child is living with you.  How much time do they get to spend with the other parent.  They came tonight's session prepared.  They agreed to let the judge decide where the child will live.  And they agreed that they wanted to decide on the other parent's access to the child.  And they agreed that it should be the same plan, no matter which parent is "non-custodial."  So then it was a question of working out the details.

We worked for 3 hours, around a table.  We wrote things out.  We talked about the child's needs.  About the necessity of each of them keeping a very close relationship with their daughter. About how important it was for her to keep close relationships with her step-sisters and brothers on one side, and her cousins and grandparents on the other.  About the importance of school.  And consistency.  And predictability.  They agreed on so many things.   Then it was a question of working out the details - holidays, long weekends, summer, school vacations - that part, after the rest, was pretty easy.  

Once they let go of having to prove their case - why their side was better - they were able to really work together.  Even if they couldn't decide the whole thing, they were able to shape what they could of the agreement.  And because they worked out the visiting schedule without knowing who the child will live with, they both felt that it was fair.  

They were even joking around with each other.    And their daughter?  She'll be just fine.

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