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Divorce Mediation:  Make Peace for the Kids’ Sake (…and Leave the Courtroom Drama to Prime Time TV)

By Amy Landsman - from the magazine, Baltimore's Child

We generally don’t think of the words “divorce” and “peaceful resolution” as going together in the same sentence.

But, remarkably, it is possible for them to go hand-in-hand- even when the parties involved have decided they no longer can.

“Mediation,” explains Roslyn Zinner, LCSW-C of Divorce and Family Mediation service of Odenton, “is a non-adversarial process that allows parents to peacefully make decisions when they’re separating or divorcing...It's an alternative to litigation… and it involves two people sitting down with a neutral facilitator to help them look at what is in the best interest of their children and helps them create what mediators call a parenting plan---and the court calls ‘custody.”

The parenting plan includes a range of details from the major to the mundane.  “Things like where the children will live and when they’ll spend time with the parent they’re not living with.  And should the child get braces or not?  Should the child be on ADD medication or not?  Should the child be in soccer or karate?  Or is karate too dangerous?” describes Zinner.

Holidays “are a hot button,” she notes.  “How many ways can we split Christmas?”

But even more than holidays, Zinner finds the most painful situations are when one parent wants to move.

“You just can’t split the kid up,” she shays.  “Those are some of the most painful dilemmas even when there’s goodwill on both sides…knowing you’re going to be more of a visitor” than a full-time parent.

“These days, fathers are very involved with their children,” she adds.  “Now fathers want an equal say and they want equal time if there are children, and the law does not discriminate by sex. There’s no presumption for mothers over fathers.”

About Mediation

Even if both parties have lawyers, it’s increasingly common for couples to resolve questions over the children with the help of a mediator.  In fact, unless there is domestic violence involved, Maryland courts send custody and visitation disputes to medication.  (In cases where domestic violence is alleged, the case is screened before going to a mediator.  If the victim is okay with going forward and is not intimidated, it goes to mediation.  In some cases, parties, who agree to mediate can also agree not to sit in the same room together.

Baltimore City automatically assigns a mediator in all divorce cases involving children.  Baltimore County does so for any case that has a contested child access issue.  Although there are no national or even statewide mediator certification requirements, Wendy Sawyer, director of the Baltimore County office of Family Mediation, says her staff are trained in mediation skills.  Baltimore County has five on-staff mediators.  According to Sawyer court orders in Baltimore County often stipulate that custody arrangements be settled within two sessions, but there is no hard and fast rule on that.  “Most people are able to do it in one session or realize [at that point] they’re not going to do it.  We’ll have than back for as man sessions as it take, “ describes Sawyer.  Also, mothers and fathers getting a divorce are often required to attend a parenting class.

For instance, in Baltimore County, parties must attend two three-hour parenting sessions.  And grandparents and significant others are welcome to sit in.

“We talk about how children are affected by ongoing conflict, how to talk to someone you don’t like very much…Then we do a piece on mediation, where we describe the difference between a mediated case and a case that the judge handles,” Sawyer explains.

“These people all love their kids,” she adds.  “The only thing that’s going to make them change their behavior is understanding that [not cooperating] will hurt their kids.  If they can’t reach an agreement, they [will get] a trial date,”

When the two parties have agreed on the details, the mediator then crease a memorandum that is submitted to the court.  Ultimately, the master or judge signs off on the document, making it an order.

Getting Legal Help

Going to mediation does not mean that you cannot hire a lawyer.  Many experts recommend having a lawyer to give counsel and to review the memorandum.  Clearly a lot of emotions flow during a divorce.  But Zinner finds that “most people can get on board wit the idea [of mediation], that it’s better for the parents to talk about the kids in a civil way because they’re going to have a lot of back and forth in the years to come.  It’s better than the alternative,”

“Yes, it its uncomfortable, but most people can still try to work together to come up with a plan.  There’s a pretty high success rate for mediation for custody,” Zinner says.

In fact, Sawyer says Baltimore County’s rate of settlement during mediation is consistently 67 to 70 percent.

If two people are getting a divorce, they can either wait for the court to order mediation or they can speed things along by hiring a mediator on their own.

When Zinner gets a call, she recommends the party sit down with his or her estranged souse to talk over the idea before making an appointment.  “I recommend saying something like,” I would like to resolve this peacefully with you.  I would like to not spend our children’s college fund or the retirement fund on long and painful litigation, so let’s hire a mediator, so we can get this done fairly quickly.  We can do this the hard way, or we can do this the easy way.  Let’s do it the easy way.”

In private mediation, Zinner will also help negotiate agreements on property division, alimony, (if there is any) the house, and pensions.  A court mediator usually sticks to the custody issues.

 Bring in the Kids?

Do children ever participate in the mediation sessions?  That’s a tricky issue.

“I happen to be of the opinion that children’s opinions are really important, especially if there are teenagers.  Sometimes kids tell each parent something different, because they want to please each parent,” says Zinner.  “Occasionally, in situations where the kids are a little older and wit the parents’ permission, I bring the kids in for a session with me and talk to them about their feelings and desires.  With the kids’ permission, I report back to the parents what the kids have said.  I t has to be done very carefully.”

Zinner says bringing in the children can break an impasse.  That’s important, because if both sides are deadlocked, the next step “would be a custody evaluation and a lot of litigation and money and lawyers.”

Many times, mediation leads to workable solutions, but Zinner admits that there isn’t always a perfect answer.  “There’s certainly a trend for fathers to generally want equal amount so time,…that’s difficult.  Kids are people.  You can’t always split them up fairly.   What’s fair for the parents is not always what’s best for the kids,” she notes.  And when a second marriage falls apart, it’s even more problematic.” Second marriages have a higher divorce rate than first marriages…Those are very difficult when there are children..There a lot of competing needs when  you blend families,”  Zinner says.

Nevertheless, “Divorce” and “peaceful” can get together in the same sentence.