In previous blogs, I discussed various methods to reach custody agreements with your spouse. If these methods don’t work after all your good faith efforts, there are still other options.
Settlement conferences. One option is for you and your spouse to retain lawyers and have the lawyers work on resolving custody issues. You can have a four-way settlement meeting with you and your spouse and each of your lawyers. You can set aside a day or as long has you think you need, lock the doors from the outside, bring in meals, and focus your entire attention (turn off your cell phones) until you have resolved the issues and memorialized your oral agreements into a formal written agreement that you and your spouse will sign. The advantage is that you get everyone under the same roof, completely focused on your case, and motivated to work on settlement as long as it takes. The positive are that if you reach a settlement you will avoid expensive and time-consuming court litigation. You and your spouse can decide on specific custody provisions tailored to your children and your situation that a judge in court will not order. Court typically decide legal and physical custody schedules. Courts do not usually address the nuances and specifics of your situation. The negative of mediation is that you spend a lot of time and money (though less than litigation) and do not reach a settlement.
Judge mediation. Another option is for you and your spouse, along with your respective attorneys, to retain a retired judge mediator who would serve as the mediator. Judges who retire from the bench often become mediators. Because judges have tried myriad custody cases, they are in a perfect position to reliably evaluate your case-tell the two of you the likely results if you take the matter to court in a contested custody case and the costs and benefits and likelihood of various results. This will likely bring the two of you to closure. Like Moses coming down from the mountaintop with his tablets, a Judge—more so than a regular mediator-brings great experience, legal knowledge, wisdom, innate authority, and a unique opportunity to see how judges see custody disputes in general and yours in particular. The judge mediator will stress that going through a lengthy and expensive court process of discovery, preparation, legal fees, emotional costs, involve of children should be the last resort, used only after all other mediation options have been exhausted. Because judges have had years of experience in controlling lawyers and litigants in their courtroom, they bring this same power to the mediation process and keep lawyers and litigants focused on the issues at hand and emotions in check. Judge mediation, and mediation in general, can result in one or both parties using the process to obtain information, “free” discovery, learn about the other side’s case, discovery the opponent’s evidence. This is bad faith mediation-the goal of the party is not to settle or mediate but to learn about the other side’s case to better prepare a rebuttal. Judges tend to be on the look for parties who are not operating in good faith and using the mediation as a fishing expedition. They quickly read the riot act to the party and medication can often get back on track.
