Barriers to Mediation

.Mediation has been shown to be a cost effective, time effective means of settling disputes. Results are long lasting and parties have a greater “buy-in,” a desire to follow through with the agreement, than with using a judge, the traditional way cases are settled. Here in the Midwest lawyer led settlement conferences and litigation still rule. Yet the trend toward mediation, like many other trends, is real. If you look at the east and west coasts of the United States (and to a lesser extent the southern coastal states), you can see that mediation is already firmly established. In the interior of the United States mediation is growing, but it has not reached full acceptance by the public.What are the barriers to mediation in the rest of the country? There are both external and internal factors.

By external  factors, I mean the status quo. These factors range from television dramas (portraying court battles but seldom mediation) and custom to the open opposition to mediation by many attorneys firmly established in their profession. By internal factors I mean the factors inside each of us that are opposed to mediation. These factors range from lack of maturity, an inability to see another viewpoint, and entrenchment to the desire to punish or even destroy the opponent, none of which is helpful to settlement in mediation.

In future posts I will attempt to deal with these factors in detail, along with ways to get around them, so that mediation will be widely accepted by all people in the US, not just by those living and working in a few coastal states and larger cities.

Frequently Asked Questions about Child Custody Mediation

Bickford Mediation Child Custody

What is Child Custody Mediation?
Child custody mediation allows parents to have a sense of control of their decision making and feel positive about what happens to their children following the separation or divorce. The more common or better known method of resolving custody disputes is known as litigation, which involves turning the decisions relating to custody over to the court for resolution. This process is very stressful, expensive, and contentious. The biggest problem with litigation is that a judge who is a stranger to the children makes these binding decisions about custody and other extremely important issues in the children’s lives.

How does Child Custody Mediation differ from a conventional litigated custody dispute?
Child custody mediation differs from the more conventional litigated custody dispute in nearly every respect. On the other hand litigation method (popular amongst most people), each party retains an attorney to duke it out in court.

Here are the differences:
Child Custody Mediation:
-A process in which the parents choose a mediator and works with both parents.
-Children partake in mediation and their input is strongly considered.
-Parents are permitted and encouraged to work together outside of court to meet their goals of their children.
-Opportunities to work through their feelings and anger towards each other.
Conventional Litigated Custody:
-The court is often used as a forum within which parent’s dispute against each other instead of working together.
-The power to make decisions regarding custody of the children is in the hands of the court.
-Typical children do not participate and their opinions are disregarded.
-Parents don’t work together to reach goals, in turn affecting the emotions of others.

What is the cost of litigation vs. mediation in child custody matters?
If a process is expected to require at least a year, it is going to be more expensive than a process that may resolve in three months. In litigation and mediation, the fees are based on time required. Often, parents have as much control, if not more control, than the attorney. The process will take less time if the parents are willing to comply and understand that their focus should be on their children instead of letting their emotions get the best of them.  If the parents don’t comply, this will put a hole in their pocket.

Paths to Divorce Mediation Resolution

Three Paths, Three Results

Path 1- Retain (Hire) Attorneys

Attorneys charge $200-$500/hour per person and they require $3,000-$5,000 up front from a client to begin. Attorneys then argue back and forth, and occasionally come to an agreement. If no agreement is reached, most courts require mediation before a trial. At this point, mediation with attorneys means paying an attorney’s fees and mediator’s fees.

If a trial is needed, it gets much more expensive. In court, attorneys try to prove the other parent unfit. Co-parenting after a contentious trial is often difficult or impossible. Even without children, attorneys argue every legal point. Going to trial may cost $10,000 per person or more, shrinking or even wiping out retirement savings or children’s college fund. Attorneys may be needed at times (domestic abuse etc.), but why start there?

Path 2- Do It Yourself

For amiable couples this is possible, but be prepared to spend lots of time and effort learning the legal system. Online forms are available, but “one size fits all” forms are seldom flexible enough to fit your personal situations. Using a form or trying to draft a “divorce stipulation” yourself after research at the local law library is possible, but often 30-40 hours of time is involved at a difficult time of your life. Appearing in court with a “homemade” document can make court a difficult process, as well. If the document is not correct, then more time, more money and a later court date are necessary.

Path 3- Work with A Professional Mediator

Make an appointment for a free consultation with a professional mediator. No up-front retainer is needed. A mediator’ hourly rate is often the same as an attorney, but the hourly costs can be split by a couple and mediation usually takes fewer hours. A mediator helps work out the best solution for you and/or children by cooperation, not confrontation or competition. Knowing that it is your agreement not a judge’s decision means it can last and can avoid a return to court. Without bringing up old grievances in court and with your own agreement, you can separate peacefully, and co-parent successfully.

When the agreement is reached, you hire an attorney for a few hours to write up your agreement in a way the court will accept easily. Your time in court presenting the settled document can be simple and quick. You can save thousands of dollars!


5 Ways to get your spirits up during a divorce




5 Ways to get your spirits up during a divorce

1. Decide whether or not you want to move forward and recover:
You have to make a conscious decision to move forward, to let go of the pain of your divorce, to let your heart heal, and to take responsibility for your own life.

2. Get motivated:
Go online find your favorite quotes that best suites you and write it on a post-it note. Place this note on areas you go to as a daily reminder that you need to be inspired by.

3. Music heals the soul:
Tunes and music! Turn on your favorite music and dance the day away. Move forward and create a new amazing life for yourself!

4. Laughter is the best medicine:
Who doesn’t laugh? Laughter is really the best medicine; it relieves stress, clears your mind, and it boosts mood.

5. Google, research, explore, read books, go on an adventure, sleep in, breathe, and many more.
Time. Now you should make it upon yourself to do more things that you never had time to do. To move forward and let go. Happiness is a choice and it is only up to you to make that happen. It will not happen overnight but eventually it will come but you have a choose to spend the day to be happy or unhappy. But remember no one can make you happy except for you!

Mediation and Hormones: Mediation and Seasonal Affective Disorder (SAD)

The mediation industry is affected by hormones. No, not the hormones you’re thinking of: the hormones we get when the seasons change. In the late winter most people get testy from lack of exercise and sunshine. They’re prone to argue and that’s why most church fights take place in late winter and I get church mediation work then. Mediation and seasonal affective disorder, go hand-in-hand

The same thing is true in personal lives, too, but the dynamic is different. In churches, people will start to fight midwinter. Most church fights settle down and a few need mediation so they call me. (usually a lot fewer churches need mediation than actually get it!). But in homes, people fight and when things get really nasty, they realize they’ve got no place to go. Sadly, most of my mediation with families is divorce mediation (if people would come to me BEFORE it gets to divorce I can help save a marriage but that’s another blog post…). When couples think about splitting, that means two households and moving in the middle of winter is no fun and most people have little energy in late winter. So people most often hunker down and live with it without calling me. Things often get worse and worse, and the kids suffer the most. But when spring weather hits, those spring hormones kick in after a few hours in the sun and people feel better, feel like a change, and have the energy to make a change. So they call me in spring for divorce and child custody mediation.

Many fights, whether church or personal, fade away when the nice weather hits, if they haven’t reached the point of no return. But that doesn’t mean the fights were only caused by crabbiness. Issues usually don’t go away on their own. Unless resolved, most fights will recur at stress points in church or marital life and will almost certainly come back in worse form the next winter, if not before. like I said above, mediation and seasonal affective disorder go hand in hand. That’s why it’s good to call me first, before things get worse. Mediation can really help!

Psychology and Mediation

Mediation is best done by someone with knowledge of psychology. The difference between negotiation and mediation can be described as a difference in psychological outlook. In negotiation, most often one is out to get the best deal one can get and many people are willing to be as zealous advocates for themselves as possible in the process to get there. that’s why attorneys can make excellent negotiators. In the game of chess that is negotiation, one wants the best thinker on your side, to think several moves ahead, and lock down a position the other party can’t  squirm out of. Pin them down, force them into a corner etc. are terms I’ve often heard regarding negotiation. Attorneys are trained to be such advocates. The emotions of the other party are deemed irrelevant.

But mediation is more an emotional process of reaching agreements. A skilled mediator understands that the emotions of each party, not their positions as such, are the moist important things to regard. If one party leaves the mediation process unsatisfied and even unhappy emotionally regardless of the agreement, then there is a good chance this party will attempt to redress the perceived wrong in court at a later date. the mediator needs to learn to open an avenue for a change in emotions of each party so long lasting agreements can be achieved.

In this sense, it is better for attorneys to think of the “opposing” party in negotiation as a jury rather than an adversary. A good attorney seeks to persuade a jury that their client’s position is “right,” and what he/she and the attorney’s client is reasonable and appropriate. Good attorneys in court will use arguments the jury will understand, will try to sway their emotions and use words to put the jury in the shoes of their client. If attorneys could learn to do that with the other party, there would be a lot more negotiated agreements.

The world of true mediation is as foreign to many attorneys as the realm of psychologists, emotions, is. True mediation treats both parties’ interests as important. That is a hard shift for many attorneys to make. that is the shift attorneys must make if they hope to be good in mediation, be good mediators themselves, and are considering becoming a judge.

To ignore logic in court or in mediation is folly.Psychologists, if they do not have the ability to be logical, are poor mediators in many situations. But equally, to ignore the emotional needs of each party in true mediation is at best problematic and in fact may even be impossible. If one ignores emotions one can argue, then mediation becomes, and even degenerates into, negotiation. That’s why many attorneys are poor mediators. Knowledge of the law does not include knowledge of emotions. A good mediator has equal knowledge of, and skill with, both psychology and logic. Most people use logic to support their emotional positions rather than to use logic to reach a position and get comfortable with that. Without emotional understanding on the mediator’s part, a large portion of mediated agreements is ignored. Sadly, this portion is even more important to good mediated agreements than logic.