In mediation, it’s often more difficult to deal with custody issues–or, more specifically, the amount of time each parent will have with their child–starting with the obvious reason that it’s easier to divide an asset than to divide a child!
When it comes to children in divorce, it’s crucial to focus on what’s best for the child, and it’s difficult to do that in a divorce. It should be the priority, but because divorce is in many cases a volatile, emotion-filled situation, it can be hard for parties to get the perspective necessary to do that.
It might seem that mediation is a difficult way to arrive at parenting time decisions, but I believe it can be better than litigation in many cases. In litigation, where the focus is “winning,” where one parent may be awarded primary custody most time, in reality, a victory can and often does represent a lost opportunity to develop a creative solution that addresses what is best for the child. Ex-spouses will need to work with one another for the entire life of their child, and a successful mediation can set up the perfect platform for them to co-parent effectively.
In litigation, it is not unusual for parents to be assigned what’s called either a standard possession order or extended standard order of possession, rather than an alternative method allotting parenting time in a more equitable or a more creative way. While the standard order is engineered to clearly delineate parenting time, it doesn’t give parents equal time with kids, and because it is a uniform solution, it isn’t necessarily the best option for the unique lives of kids.
Any plan that considers and addresses special factors, like specific days of the week in which one child might have an activity better suited toward a pick up from one parent versus the other, can more quickly become reality in mediation than in litigation. Mediation allows parents to discuss what’s best for their children in a setting focused on a shared solution, led by a mediator who wants those involved to think of their interests rather than positions. (As I discussed in my previous article, interest-based negotiations provide a forum for creative problem solving that is less focused on individual assets and more driven by long and short-term goals.)
No one knows what a child needs better than his or her parents, and mediation allows for parents to have input about those needs in a way that litigation simply doesn’t. If creating a flexible schedule that meets the needs of both kids and parents is important to you, consider mediation rather than litigation as the means to settle your decree.