Linda and Frank have been divorced for two years and Frank has remarried. Together, Linda and Frank have one son, Jacob, who is 7 years old.  They share joint legal custody and joint physical custody (50/50) of Jacob. Linda and Frank are not able to communicate. When they try to discuss issues concerning Jacob, it always ends up in a fight, personal jabs at each other, and no progress made toward making decisions for Jacob. They are having difficulty agreeing on many issues concerning Jacob including his extracurricular activities as well as many differences within each parent’s home concerning Jacob’s routine such as bedtime and the appropriate age to use certain electronics. At the heart of the matter is a mutual lack of trust of each other which makes these conversations even more challenging. While both parents love their son, the focus tends turn toward their own needs and feelings about the other parent rather than what is in Jacob’s best interest.

Before I became a certified family mediator, as an attorney I represented countless parents in contested child custody cases for over 25 years.  I often heard judges explain to the parents that a judge should not be in charge of making the parenting decisions for someone else’s child rather the parents who know their child the best, should be the decision makers. Courts almost always encourage parties to try mediation to help them come to agreements for their children.  Why would parents ask a stranger, albeit a judge, to decide which extracurricular activity  their 7 year old child should participate in, what age is appropriate for a 7 year old to have access to electronics, or to weigh in on routines within a parent’s home?

To add a further layer of complexity, some decisions fall under everyday parenting decisions, some fall under joint legal custody decisions, and some are in a gray area somewhere in between. In Virginia, legal custody contemplates the authority make decisions concerning important or significant decisions impacting a minor child’s health, education, and welfare whereas parenting decisions are those decisions that each parent makes in his and her own home autonomously without requiring the other parent’s consensus. There are some decisions that may fall within a gray area and an argument may be made either way. Courts will rule on legal matters which means that the parents may still well be left to figure out the everyday parenting matters outside of court.

Courts are designed to settle legal disputes and are a last resort even in this regard. Courts are not set up to teach parents how to be cooperative co-parents. Another consideration is that courts have only a few hours to hear the custody case and make a ruling while parents will continue raising their children together for years. Additionally, when child custody and parenting matters are litigated, it is incredibly expensive for both parents and neither parent knows how the court will rule. Parents are literally rolling the dice and relinquishing all control over these important decisions impacting their children while often borrowing money and depleting their savings and retirement accounts to fund the litigation. Also, the acrimony and adversity that is a part of most custody litigation, leaves parents even more stuck in their conflict, unable to trust one another, and still unable to move forward. Co-parenting that was already a struggle is now an uphill battle. Statistically, parents who litigate their custody and parenting matters are much more likely to file in court when there is another conflict rather than resolving the parenting decisions themselves or with the assistance of a mediator.  Not only is the child not the winner when these cases are litigated, neither are the parents.

Mediation is the best first step in resolving parenting conflict and making child-focused decisions when parents are unable to do so themselves. So many parents with unresolved conflict have a winner-loser mentality and so much of each parent’s energy is used for blaming the other parent and pointing out his or her deficits. When parents are trapped in this space, they are often unable to recognize their own role in the conflict and are blind to his or her own parenting flaws. The goal of the mediation process is to shift the focus of the negotiation from the parent’s issues with each other to the child’s needs and best interests.  A skilled mediator will help parents communicate respectfully and work together for the benefit of their child even when they have historically struggled to do so. The mediator will encourage parents to approach their differences by working together to problem-solve, generate creative solutions, and for each parent to make compromises. Additionally, through the mediation process, parents are often able to listen and better understand the other parent’s reasons for a particular viewpoint rather than making negative assumptions. Parents are also much more willing to listen to each other when not being verbally attacked. Now rather than being in defense mode and reacting to each other, parents are having a conversation where each is listening and responding.

As a family mediator, I will often spend time helping parents understand the negative impact that unresolved parental conflict has on children. The greatest stress for children is usually not the separation of their parents or even the divorce itself; it is the ongoing, unresolved conflict between their parents. The impact of unresolved parental conflict follows children into their adult lives and can have many damaging consequences. The good news for parents is that this is preventable if both parents are willing to put in the work and make mutual compromises to build strong parenting agreements. Even if the conflict has been ongoing for years, the child can still benefit from the parents reaching agreements in mediation and the improvement in the parents’ co-parenting relationship.

Linda and Frank should choose mediation over litigation because (a) they will maintain control over important parenting decisions, (b) they will spend significantly less money which is now available for their children, (c) their children will have healthier outcomes both in their childhood and adulthood; (d) they will successfully lay the foundation for healthier co-parenting moving forward; (e) if a conflict arises in the future, they are much more likely to return to mediation rather than litigating; and (f) they will each be better able to move forward with their own lives rather than remaining stuck in conflict.

The majority of parents do reach custody and parenting agreements in mediation and at a fraction of the cost of litigation. Frequently the co-parenting relationship begins to improve after mediation as well since there has been constructive dialogue resulting in an agreement created by both parents from a child-centered place. Mediation reminds parents that they are still on the same team.  While Linda and Frank are the winners here, Jacob is the biggest winner.

If you are facing family conflict, consider divorce mediation. It’s a more cost-effective, less stressful, and more collaborative approach that can help you achieve a positive resolution for your family.