If a lawyer actually listens to a client, some times there is a sense of disappointment that the client has not articulated, but, nonetheless, is present to behold. I received a phone call from a client tonight. He had spoken with a court appointed custody mediator who had explained to him how mediation works in Pennsylvania. I could tell he was disappointed that this information was imparted not by his attorney, but the mediator. The client’s concern was that he was walking into a process that could possibly affect his time and opportunity with his children and I was not the one to explain it.
So, let it be explained. This year marks the tenth anniversary of Court sponsored custody mediation. Thirty years ago custody cases were fairly simple. Mothers were awarded custody and an interested father could see his kids every other weekend from sundown on Friday to Sundown on Sunday. But thirty years ago, a couple of things started to change. First, Pennsylvania adopted the Equal Rights Amendment as part of our state constitution. This meant that discrimination on the basis of gender became inherently suspect and illegal as a matter of law. Second, fathers who had parented children during the 1960s and began to express sincere interests in having an ongoing relationship with them. Not all father’s interests are sincere but, in initial interviews we have conducted with clients in the last twenty years, the trend has favored mother’s acknowledging that “he’s a good father even if he doesn’t always get it right.”
The result of fathers’ increased interest in having an ongoing relationship with their children was a huge tide of custody litigation. And if there is one subject upon which psychologists, attorneys and judges agree it is that adversarial proceedings concerning custody are inimical to the best interests of children. As adults we know how to fight. And one hopes we know when to fight. But we invest enormous energy in teaching our children NOT to fight and if we lead by example, fighting over our children is not an example to be celebrated.
Although many people (including this writer) challenge whether adversary proceedings are the best way to resolve family law matters, Court rooms are the places where most custody challenges are heard. Thus, the focus tends to be on winning instead of resolving custody matters. And lawyers are bound by their own code of ethics to represent clients zealously although most will tell you that they abhor such zealotry in a world where children are the pawns.
So, the idea evolved to give the parties a chance to resolve their differences outside the Court room and without lawyers and judges. Mediators are trained professionals who are assigned by the court to sponsor discussion between parents concerning management of their children in a divorce setting. They have no power to decide anything. Their training is directed towards fostering “conversation” between the parties and promoting resolution. They do not represent either party. Nor do they represent the child or the child’s best interests although they are directed by Court rule to try to get the parents to see what is in the child’s interest. They may, with the consent of the parents, meet with the child. They have no power to make a recommendation although they will commonly offer a menu of possible solutions that the parties may or may not choose to select.
Lawyers are not permitted to participate in mediation sessions. What is said in mediation is confidential and therefore not admissible in Court. Mediators therefore do not become witnesses even though what they see and hear in a mediation session may be something the Court would like to know.
Most counties are adopting these programs because they find that they are a low cost and often effective means to get parties to talk through a custody conflict. Typically, Courts will order mediation before a formal court proceeding although some counties offer mediation after a Court appearance has failed to resolve matters. If agreements are reached, the mediator is customarily asked to prepare a memorandum of understanding that the parties are free to discuss with their attorneys before any agreement becomes effective. Some parties will choose to engage in multiple mediation sessions rather than take the case on to hearing or conciliation where the Court ultimately will decide what is best.
Because the process is confidential, mediators do not tell the Court what occurred. Where mediation is required by Court rule, mediators will report whether a party “attended” but no more even if the party refused to speak. The point is to get the parents to talk about what they want for their children before they go to Court. The goal is to avoid Court but it is also to refine the issues before a Court proceeding takes place. If a parent says he or she wants a change in custody, the point of mediation is to explore why he wants it and how it is in the child’s best interest. But, Courts also recognize that because the stakes appear so high, mediation will not often work. Sadly, it is not often in one’s interests to lay all cards on the table in mediation. That is a judgment best made by the client in consultation with the lawyer. It takes two to resolve custody matters and both must agree that they are not shopping for an advantage in the litigation if the mediation is to be truly successful.