Custody Mediation

I. Mediation Orientation

Educating the parties – what is it?

1. Mandatory, except where there is abuse as specified by the Rule
2. Orientation is confidential. Confidentiality attaches when first introduced to orientation program. Confidentiality is a privilege that must be asserted.
3. The Mediator will report to the court as to parties’ attendance and compliance with local rule via filing Certificates of Compliance
4. Mediator CANNOT draft a binding agreement, merely a Memorandum of Understanding to be given to the parties, or to counsel with authorization from the parties.
5. Orientation only is court directed, further mediation is NOT court connected or directed.
6. Fee for orientation determined by local rule (currently $150 to be divided equally unless in forma pauperis case)
7. Length of orientation is up to two hours
8. Regardless of length of orientation, parties must pay full amount
9. Optional for parties to enter into mediation at conclusion of orientation for the duration of the two hour period, and thereafter

Mediator’s role in orientation

1. Educate the parties as to the process
2. Screen for abuse – Mediator may choose to use the Tolan Screening Test, or refer back to the representation by the parties’ at the Conciliator’s hearing that no abuse Order was entered in the last 24 months; free to use own method for screening (e.g. deductive questioning to parties, pre-mediation ex parte telephone interviewing, etc.)
3. Develop rapport with parties
4. Gather initial information – parties’ names, children’s names and ages, attorney involvement; ice breaking; encourage dialogue between the parties
5. Remain objective, be cautious as to intermingling of orientation and mediation
6. Observe body language and demeanor as part of abuse screening and to get to know the parties and their power balance

What to include in explanation of Mediation process

1. A voluntary negotiated resolution of differences
2. Termination of process can be by either party or mediator
3. If Mediation is pursued, scope for orientation session is limited to custody issues
4. Mediator’s role is in facilitating discussion, not adjudicative or directive
5. Discussion of parties’ role in taking responsibility for and ownership of the process
6. Maximum time frame for orientation; possibility of beginning mediation
7. Discussion; fees for orientation; fees for continued mediation
8. Ground rules for orientation and for continued mediation, if necessary
9. Ensure impartiality of mediator
10. Discussion of confidentiality – mediation communications and documents are privileged once process commences. See 42 PA C.S.A.§5949
11. Discussion of ” generating of options” as part of process
12. Discussion of Memorandum of Agreement – non-binding, (non-represented parties may submit its substance to the Court at time of short list hearing; represented parties may submit to attorneys for drafting of stipulation/proposed Order)

Mediator’s goals common to orientation and mediation

1. Establish positive rapport with both parties
2. Establish environment of fairness, candor and impartiality
3. Instruct the parties as to the process
4. Encourage and facilitate the recognition by one party of the other party’s position and feelings
5. Create a receptive atmosphere to maximize the generation of options and alternatives
6. Translate and transmit information submitted by the parties
7. Help the parties differentiate need from want
8. Provide a reality base for the parties
9. Distinguish “interests” from “positions”
10 Manage the process; organize the information
11. Managing the anger while allowing parties to vent as necessary

II. Transitioning Into Mediation

Develop and use an “initial intake” sheet. Information should include:

1. Mediating parties – names and addresses, employment, work and home phone numbers, schedules
2. Attorneys, if any
3. Children – names, date of birth, and ages, special needs, activities, school arrangements; center focus on children and their best interests

Present and explain your Mediation Agreement (agreement of the parties to enter into mediation)

Present and explain your Fee Agreement

Discuss scope of issues and agenda for mediation

Identify current custodial arrangement; What’s working? What’s not?

III. Mediation

Useful Mediation skills and tools

1. At orientation, get a sense of who the parties are and what they want
2. Listen with a third ear to assess needs, fears, wishes
3. Build trust
4. Identify obstacles to communication and mediation
5. Assess the parties communication styles and help them to “hear” one another
6. Help parties identify goals
7. Provide structure when and where needed
8. Summarize each parties position/story
9. Point out areas of agreement
10. Generate an evaluation of alternatives
11. Problem solving
12. Maintain balance of power between parties
13. Identify and eliminate blocks to listening – mind reading, comparing, rehearsing what you will say, filtering, criticizing/judging, dreaming, identifying, advising, sparring, being right, derailing, placating
14. Watch for areas for empowerment and recognition

Pitfalls/Issues for Mediators

1. Do not have the parties sign any Memorandum of Agreement/Understanding
2. Refer parties to their attorney for legal questions and advice
3. Avoid giving legal advice
4. Be careful in dispensing “legal information”
5. Avoid allowing irrelevant facts to cloud the real issues
6. Avoid monopolizing the mediation; encourage the parties to interact
7. Avoid ex parte communication with either party or their counsel
8. Avoid opinionated comments as to options generated by the parties
9. Avoid derogatory comments, stereotyping
10. Do not initiate discussion of support impact on custody issues