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Mediation: A Platform for Custody & Parenting Agreements

Many divorcing couples seek the assistance of Attorneys. One reason, among many, is to protect and represent their best interests during the division of assets. Negotiation through Attorneys about financial matters makes sense, as previous court decisions outline respected methods and Attorneys can offer a straight-forward review and calculation of the numbers and legal issues. When Attorneys are not able to help their clients reach a compromise, the division of assets generally falls to a Judge, who carries the responsibility to create an equitable outcome for the Parties.

But, should Attorneys and Judges have the ultimate responsibility of doing the same for the children involved in a divorce? Certainly, divorcing couples know their family members better than a judge does, so it makes much more sense for the Parties to have a significant say in forming the portions of their divorce decree that involve human relationships.

If a couple is willing to sit in the same room or even in separate rooms down the hall from one another, cooperation can be gained through mediating a Divorce Settlement Agreement. Particularly, the Custody and Parenting Time portions of those Agreements can be handled effectively with the help of a third-party neutral Mediator. Mediators are passionate about helping people make their own best decisions and they are trained to facilitate productive communication between the Parties.

Below are two scenarios, which can be considered in deciding how to best involve a Mediator in a Stipulation and Settlement Agreement process:

1) Divorcing couples, who are self-represented and using court-provided forms, can have a Mediator assist them with their Stipulation and Settlement Agreement by facilitating discussion, negotiation, and agreement between the Parties. The Mediator can also draft the Agreement under the direction of the Parties. The Mediator does not act as either party’s attorney, but instead as a neutral facilitator, helping them work through conflicts and solutions. The Mediator can educate, but cannot provide legal advice to either party. Once the Parties’ decisions have been finalized and drafted, they can choose to voluntarily sign the Stipulation and Settlement Agreement and submit it to the Court.

2) Divorcing couples, who are represented by Attorneys, can meet with a Mediator, with or without their Attorneys present, to make decisions on all or portions of a Settlement Agreement. Attorneys may accompany their clients to the Mediation Session(s) or they may wish to meet with their clients privately between Mediation Sessions. Parties (and their Attorneys) may be in the same room, separate rooms, or some of both as the Mediator addresses each Party and each identified issue. As progress is made, the Mediator will provide the Attorneys with the decisions which have been agreed to, so that the Attorneys may include the Parties' decisions when drafting the final Stipulation and Settlement Agreement.

Meeting for a set period of time, where everyone is present in the same place with a Mediator (instead of back and forth communication through numerous emails and phone calls) facilitates the timely flow of information. Mediation is an excellent tool for reaching Settlement Agreements, and is particularly effective for working out the nuances present in Custody and Parenting Time Agreements.

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