Mediation in Custody Disputes

Most Circuits Courts in Illinois, including the Circuit Court of DuPage County require parties in a custody dispute to participate in mediation. The courts instituted this procedure in order to (1) offer the parents an opportunity to settle their differences in a non-litigation setting and without extensive attorneys’ fees; (2) create a custody/visitation order that fits the situation of the parents and the children; and (3) reduce the number of contested custody and visitation disputes by creating a custody/visitation order that is modeled by the parents in the best interests of the children and thus is less arbitrary than a custody/visitation order imposed by judges.  

In order to assure the best for you and your child, you should understand the position of mediator. The mediator, like everyone else, wishes success in what he or she does. Success in mediation is to bring about an agreement. The role of the mediator should be to facilitate the parties negotiating with equal bargaining power. A good mediator, therefore, will attempt to prop up or enable the disadvantaged parent so that he or she is negotiating on equal basis.

There are some rights and wrongs in attempting to communicate “the right things” to the mediator:

1. Mediation is not your day in court: Do not view conversations with the mediator as your “day in court.” You are not to view this as your opportunity to “tell your story.”

2. Do not dump on other side: Never “unload” on the other side or attack the other parent. One of the reasons I routinely refer my clients for debriefing (and a written report) is to give you the opportunity to “tell your story” and unload before you enter into mediation.

3. Using “I” messages: In the mediation process, it is good practice to communicate using only “I” messages and avoiding “you” messages. The latter tends to blame the other person and leads to defensiveness.

4. Use active listening skills: “Active listening” is a skill used in the case of a conflict. The listener must report back to the speaker the main points about what is being said. The listener then asks for feedback from the speaker to determine if he or she is correctly hearing the main message. This is done before presenting your own message to the other party. Ideally, the mediator will be a facilitator and will require you and your spouse to each use active listening skills.

5. Mediation’s goal is to reach an agreement. You should not view the mediation process as an attempt to determine who is the better parent. You should view the mediation process as one in which you are seeking to reach an agreement to serve the best interest of your child. Keep in mind, however, that it is not necessary that mediation result in an agreement as to all potential issues. It is possible for mediation to resolve most of the issues but leave some issues unresolved.

6. Documents to the mediator: You may have documents you wish to show to the mediator. Please check with me before taking documents to the mediator.

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