Tuesday, December 16, 2014

5 Ways to prepare for your parenting plan mediation

Either you have been ordered by the courts to attend mediation or you and the other parent have agreed to private mediation.  Either way, there is a lot that can be done in advance to prepare for the upcoming mediation.  Below are some things to consider and ways in which to get ready.  These ideas presume that parents and children are safe and that parents are able to negotiate on their own behalf (mediation when there's been domestic violence or child abuse is too serious and complicated of a topic to cover here).

Is this conflict “ripe” for mediation?
Mediators use the word “ripe” to describe when the timing is good for mediation.  Usually that means that the people participating in mediation are emotionally ready and motivated to deal with the practicalities of a parenting plan.  That’s not to say that parents can’t bring intense emotion into the mediation; mediators help parents with intense emotions in mediation all the time.  It just means that parents need to be essentially in agreement about some basic facts; primarily that any romantic relationship between them is over.  If parents aren’t in agreement about this, then couple’s mediation or marital mediation may be appropriate prior to mediation of a parenting agreement.  Couples therapy can also be helpful when parents aren’t sure about ending the relationship.  Another obstacle to mediation at this stage might be if one or both parents are just too angry at each other to deal with parenting plan particulars like a schedule and how decisions will be made about the children.  Some anger is fine in mediation and there are certainly opportunities to vent, but anger to the point of immediate flooding (Andra Medea, Conflict Unraveled) and an inability to eventually shift to problem-solving and listening means mediation will be less effective.  Same is true if one parent is really depressed, to the point of struggle with daily functioning.  Support groups, individual therapy, talking to a spiritual leader, developing an exercise practice or finding creative outlets may be helpful to relieve some of this expressed anger or serious depression prior to mediation.  A fantastic mediator, Bill Eddy, also has some great suggestions on pre-mediation coaching that parents could implement, including what he describes as “managed emotions.” To use this strategy, a parent will “memorize short encouraging statements that you can tell yourself as you are going through the process.”  If the timing isn’t ripe for mediation, you could always request that the judge or mediator postpone it; for this request to be taken seriously, consider and present some steps you and the other parent might take to get yourselves emotionally ready for mediation.

What do I know about how to negotiate?
Maybe you’ve bought a used car before or you’ve had to negotiate with your child’s school district.  Certainly you’ve had to negotiate with your own parents over the years not to mention with your own child.  When it comes to negotiating with the other parent, however, some of those basics quickly and easily fly out the window in the heat of the moment; that’s why preparing is so important.  Just because you’ve had a romantic relationship with the other parent doesn’t make mediation any less of a negotiation.  In fact, it may require even more preparation because you and the other parent probably developed understandings and patterns of communication (perhaps some healthy and some not) that you fall into immediately even though you’re no longer together.   There are some great books on negotiation such as Getting to Yes by Fisher and Ury.  For example, it can be helpful to understand the ways in which integrative negotiation is different from distributive bargaining.  Usually when you’re buying something, you want to get the best deal possible which makes for distributive bargaining.  It’s a win/lose situation where the more money you save means the more money the other person loses.  When you’re dealing with your child’s other parent, you don’t want to enter into a negotiation with a win/lose attitude or the person who loses the most is your child.  Since your relationship with your child's other parent is ongoing (as opposed to the used car salesman whom you’ll never see again) you do have to consider their interests in order to successfully meet your own needs and interests.  For example, if the other parent has a need to be acknowledged by you as important in the child’s life, to do so may mean that the other parent can finally acknowledge the ways in which you put your career on hold for the sake of your family.

What’s my position and why does it matter?
You need to know more in advance than just your position.  A position is often that statement that a parent makes regarding what they want the outcome to be.  They repeat it often and firmly, making it clear that they will not budge.  For example, a lot of parents walk into my mediation stating clearly that they want “sole custody” or “joint custody”.  When I ask them what that means, or ask specific questions about residency or decision making, they often don’t know how to respond.  Usually parents choose a position based on emotion.  Sometimes it’s something their attorney tells them they deserve or that they would definitely “win” in court.  Sometimes a grandparent or other family member tells the negotiating parent that they “have the right” to some aspect of the parenting plan.  Never walk into mediation with a position that you can’t support or that you don’t truly understand.  Educate yourself on the difference between physical custody and legal custody.  Understand what it truly means to have sole legal custody versus joint legal custody and be able to articulate why either of those matter to you.  For example, maybe you and the other parent have very different opinions about how the children should be educated and that is why you don’t want to try and make educational decisions together.  On the other hand, maybe you feel you ‘ve been the one “making all the decisions” because the other parent worked all the time so you think you deserve to have sole legal custody.  When parents are in a relationship, there is usually an agreed upon—either explicitly or implicitly—division of labor that works, at least for a while.  Keep in mind that when you decide that your romantic relationship with the other parent has ended, both parents must then fill multiple roles in child rearing.  Relying on the past to make arguments about the future can be self-defeating.  You're better off figuring out all of the things you, your children, and the other parent need and putting the pieces together in a way that fits, like a puzzle.    

What is my bottom line?
Understand what options you have if mediation doesn't work out and you are forced to go back to court on one or all parenting issues.  Will an attorney be assigned for the children?  Will there be home studies?  Psychological evaluations?    How much time will be missed from work?  To what extent will strangers be talking with your kids?  To what extent will strangers be making decisions for you instead of you and the other parent maintaining control of the parenting plan?  Before you suggest to the other parent that you will “take my chances in court” or that you’re “better off having the judge decide” be very clear about what that really means.  Going to court can be costly in terms of time and money.  It will certainly further strain your relationship with the other parent.  Your “day in court” may not happen for months or even years, after a lot of time and money has been spent, and when—totally out of your control—the outcome is decided you may not be happy with the results.  Instead of using threats of court to try and get your way or to intimidate the other parent (they may just call your bluff) consider instead what is truly worth fighting for in court?  This is your bottom line.  You don't need to share it with the other parent, but you do need to learn it and understand it.  

Between my position and my bottom line, what do I need to learn and what do I need to be prepared to share?
If you're not sure what you really want right now, do some research and write down some potential proposals to bring into mediation.  For divorcing parents, www.uptoparents.org has some wonderful resources available.  For never married parents, www.proudtoparent.org can be helpful.  In your parenting plan you will need to decide how and when the children will spend time with each parent, including summers, holidays and other vacations (winter/spring).  Usually there is one residential parent so you'll need to decide who that will be, or if you think you want to share residency/physical custody, you need to consider a) how far apart are you or do you plan to live from one another b) where will the children attend school c) what financial implications may shared residency have d) how would the kids do with shared residency e) how effectively do we as parents communicate with one another and/or how can we become better at communicating.  You will also need to determine how major decisions (education, religion, health and extracurricular activities) will be made, either together or by one parent.  There’s a lot of talking that needs to happen between your initial position and your bottom line.  If you would prefer that you and the other parent maintain control of your parenting agreement rather than have a judge determine it for you, then prepare in advance by knowing what you want and why and be open to communicating with the other parent in mediation.  Take the time to listen which is how you’ll learn what they really need in order to reach an agreement.  Get all of the pieces of the puzzle before you try to put something together  Try your best to explain what’s important to you and why. Try to enter the mediation open to this process.  Having a third party assist you to talk and listen can be extremely empowering.  On more than one occasion I have had parents say after mediation: “If we had only talked like this when we were together, maybe we wouldn't have split up.” 

Thursday, December 4, 2014


While I’ve re-posted articles on Facebook, I’ve written nothing personally or professionally about the #BlackLivesMatter movement. In all honesty, I’m fearful of saying the wrong thing; I am a white woman who has experienced many of the privileges that that bestows. I can and have gotten it wrong. Thinking about the #BlackLivesMatter movement again today (in light of another Grand Jury decision not to indict), I feel an intensifying anger, and while the experience of oppression cannot be shared, the outrage is, or should be, shared, and in being shared it must be something of which we all speak in the best way we know how. Fear, after all, is part of the problem.I am angry.
I am furious. The friends and families of Michael Brown, Eric Garner, Tamir Rice and far, far too many other Black human beings should not be grieving the loss of their loved ones. They should not be experiencing, privately and publicly, the lack of justice in this country … yet again. Black human lives should not be cut short. I say “human beings” with intention and fury, because Black lives have, and continue to be, treated as less than all others.Morton Deutsch, a social psychologist and researcher, defines oppression as “the experience of repeated, widespread, systemic injustice” (Deutsch, Justice and Conflict, The Handbook of Conflict Resolution. San Francisco, CA: Jossey-Bass, 2006). Deutsch explains in simple language the forms oppression takes as injustice. All of them apply here, but the one that has me most outraged is how systematically Black lives have been morally excluded.  In the words of Deutsch, "moral exclusion or the scope of injustice is concerned with who is included in the moral community and who is thought to be entitled to fair outcomes and fair treatment.”  Furthermore, moral exclusion occurs “when individuals and groups who are outside the boundary in which considerations of fairness apply may be treated in ways that would be considered immoral if people within the boundary were so treated” (Deutsch, “A Framework for Thinking about Oppression and Its Change,” Social Justice Research, 2006).

The United States’ “justice” system’s furthering of oppression through a failure to bring to justice those who have killed Black human beings is unacceptable. Police officers make mistakes. They are human. However, this is not an isolated incident, the mistake of one person.  Deutsch further writes: “Retributive injustice is concerned with the behavior and attitudes of people, especially those in authority, in response to moral rule breaking… almost every comparison of the treatment of Black and White criminal offenders indicates that, if there is a difference, Blacks receive worse treatment.” There is a history and pattern here of Black loss of life due to police brutality. This is a case of moral exclusion + distributive injustice + procedural injustice + retributive injustice + reparative injustice + cultural imperialism = oppression = lack of accountability and consequences = justifications for killing Black Human Beings = getting away with murder.

I’m a queer-identified white woman married to a queer-identified Brown woman, raising an Indian-Irish-Italian child. In his lifetime, this violence toward Black lives must stop, but the white population in our country allows, and often benefits from it continuing.  Professionally, I studied Morton Deutsch in graduate school, whose expertise in the social psychology of justice was at the heart of my final project. His words spoke to me nearly twenty years ago and they do still, as my anger intensifies at the systematic oppression of Black human beings. I recognize that I have had the privilege of not having been born with the right to that anger. Instead my anger comes from being an ally and that should and does matter much less. I feel that anger out of solidarity, but my white privilege means I will never share the space within which the anger of racial oppression truly exists.

I’m the daughter of a retired police sergeant who had over 30 years on the job. I loved going to the police station as a kid, hanging out with his police buddies, getting fingerprinted and pretend locked up in the real jail.  I felt safer there than anywhere else in the world.  The contrast of the experience I had as a young white girl with a police officer father to that of too many young Black men is not lost on me.  I know my father’s job was not an easy one as I witnessed the pain in his eyes from all he saw more than I’d like to recall. It took a huge toll not just on him, but on all of us directly and indirectly, day after day. It is no accident that I became a mediator, as my Dad instilled a desire for justice in my tiny being. He taught me that no one’s life is worth more than any other. He taught me about accountability and apology. He taught me about forgiveness.

But what I learned on my own was that power and privilege matter and cannot go ignored. I learned that the anger of the oppressed matters and that it is my responsibility to listen without judgment or justification or defensiveness to those who have less power and privilege; and to speak out against oppression.

I began writing this post earlier in the day and as I conclude it this evening protesters march in cities throughout the country. #BlackLivesMatter

Monday, November 10, 2014

Negotiating: preschool years part II (or “prequel” if this was a Star Wars movie)

The field of dispute resolution has a lot to offer educators, parents and other care givers beyond peer mediation programs.  Young people can benefit from an application of this knowledge as a preventative measure before they become someone Bill Eddy might define as having a high-conflict personality (HCP), his area of specialty in the field. Eddy’s definition of someone with a high-conflict personality is as follows:

Basically, when a person has a high-conflict personality, he or she is stuck in conflict. It’s part of who they are. The issue’s not the issue. They will just find another issue to fight about the same way. It’s how they routinely think, feel, and act. Because it’s part of their personality, they can’t see it. They can’t see that their behavior is out of line or “over-the-top.” It feels necessary and normal to them even though everyone around them can see that the person—who I call an HCP—is acting very inappropriately. It’s hard to believe, but they really lack self-awareness of how inappropriate they are. And you can’t “make” them see it like you can’t make a blind person see. HCPs just get defensive when you give them negative feedback, and often escalate the conflict even more.  The biggest sign is whether they can turn their aggressive behavior on and off to appropriately fit the circumstances. If they are always aggressive—even when it hurts their client or themselves—that is a sign they can’t stop themselves. It’s this lack of self-awareness that’s key; e.g., if you can’t even talk to them reasonably on the phone; if they always make it personal with personal attacks or public rebukes of you or your client; if they have emotional outbursts they can’t control; when they can’t even make a settlement proposal or respond to one; if they “project” their own behavior onto you and blame you for acting in ways that they are really acting; or if they tell the judge that you’re being uncooperative or not communicating. These are all signs of a high-conflict personality and predictive of future uncivil behavior.  (Interview with Deborah Bayus, President, NorthCounty Bar Association, The Magazine of the North County Bar Association, Vol.25, No. 10, October 2008)

Tuesday, October 21, 2014

Academy of Professional Family Mediators Annual Conference, San Diego (Coronado) 2014

I just returned from the Academy of Professional Family Mediators (APFM) Annual Conference in San Diego. Presenters included veteran mediators Forrest (Woody) Mosten, Bill Eddy, Marilyn McKnight and John Fiske, among others. I've been mediating since early 1999 so I’m not new to the field, but these folks have been mediating since the 70’s and 80’s, many of whom have had a direct hand in actually creating the field of family mediation (including Diane Neumann who unfortunately was not present this year). In fact, in the late 90’s or early 2000’s I attended a family mediation conference where John Fiske facilitated family mediation role-plays in front of a room full of 50 or more people, and I even participated as one of the parties. There’s no reason for Fiske to recall me, but I remember him quite well because of his sense of humor and his ease in front of others. At one point during this recent conference in San Diego I turned to a colleague during Bill Eddy’s presentation and asked about Eddy, “Do you think he knows he’s a mediation rock star?” My colleague replied: “absolutely, yes.” Eddy’s confidence and knowledge is always on display, yet so is his accessibility and willingness to teach, like with Fiske and other veteran mediators. Folks new to the field may not be fully aware of how unique an opportunity it is to tap the expertise of individuals so instrumental in creating, defining, and expanding a profession.

Tuesday, September 9, 2014

"Dear Mediator"

I’ve decided to try something I’m calling “Dear Mediator” where readers write to me about a conflict and I present a possible approach for how they might go about resolving it. Since I will obviously only be learning one side of the conflict, and since I am a mediator, I will refrain from presenting one solution or outcome. Instead I will focus my response on a possible process for obtaining a healthy resolution.